Yu Yau Tak v. Commissioner of Police and Another

CACV000325/2000

CACV 325/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 325 OF 2000

(on appeal from Constitutional and

Administrative Law List No 43 of 2000)

--------------------

--------------------

Coram: Hon Mayo VP, Hon Keith and Woo JJA

Date of hearing: 16 March 2001

Date of handing down judgment: 4 April 2001

-------------------------

J U D G M E N T

-------------------------

Hon Woo JA:

1. This is an appeal from the order of Hartmann J made on 30 June 2000 dismissing the applicant's application for judicial review. The application was for certiorari to quash the following decisions:

(a) the finding of Senior Superintendent TSANG Choi-on ("the Superintendent") dated 8 October 1998 that the applicant was guilty of breaching regulation 3(2)(e) of the Police (Discipline) Regulations, Cap 232 for having contravened order 6-01(2) of the Police General Orders ("PGO"),

(b) the consequent decisions of the Commissioner of Police (the 1st respondent) made on 7 January 1999 and 7 April 1999 confirming the finding and recommending compulsory retirement of the applicant, and

(c) the further consequent decisions of the Chief Executive (the 2nd respondent) made on 22 October and 20 December 1999 confirming the finding and accepting the recommendation.

Background

2. The applicant commenced his career as a police officer in 1974 as a constable. In 1978 he was appointed an inspector and in 1982 was promoted to senior inspector. He remained in that rank until the events leading up to these proceedings.

3. From 1992 onwards, the applicant began to visit the Mainland frequently. This was often in the company of friends and other persons to whom he was introduced by his friends. They would eat together, go drinking and visit nightclubs. An undercover police officer obtained evidence that a number of these people that the applicant associated with were either triad society members or criminals, and he made reports to his superiors.

4. On 20 January 1995, the applicant was interviewed and he talked about his old friend CHENG Wui-ming also known as Cha Bo ("Cheng") whom he first met as a fellow squad member at the Police Training School ("PTS") in 1974 and they had been friends thereafter. It is in relation to Cheng that the disciplinary offence with which we are concerned was allegedly committed. The relevant parts of the record of interview show that the applicant said:

"Sometime in 1994, it may be the dates you are referring to, I went to China with two friends. One was CHENG Wui-ming, alias Cha Bo, and the other was a serving PC (ie, police constable), called Ah Sing, who I know no other details about. Cha Bo and I had been squad mates at PTS when I joined as a constable in 1974. He later left the Force. Our PC squad would have regular Dai Sik Wui and I would meet Cha Bo with them. We both lived in the NT, so outside the Dai Sik Wui, we would keep in touch and very occasionally we would go out together. On this occasion, Cha Bo dated me to go to China and he brought along Ah Sing. So at that day we left the Lo Wui Checkpoint in the late morning and on reaching Shenzen, he led us to a restaurant for lunch. In the restaurant he came across a man called Ah Luen. I do not know if Cha Bo dated him to meet us there or if it was by accident. I do not know anything about Ah Luen, except that he is a staff of the First Pacific Bank. There were others sitting with Ah Luen, both males and females and we joined them. Cha Bo suggested we all went to Shek Wan together."

5. The applicant was asked questions about the people he was with on that day to which he gave answers:

"Q22 Do you know if any of the people you were with were or are engaged in illegal activities or are triad members?

A22 I do not know and I have not even thought about it as Ah Luen introduced me as a bank staff and I took it that they were all his friends.

Q23 How about Cha Bo?

A23 I do not know if he is involved in anything although I have heard on one occasion that he was a member of the Fuk Yee Hing. I associate with him mainly due to our past relationship as squad mates."

6. A further interview was conducted in the afternoon of the same day when the applicant was asked further about his association with Cheng:

Q1 Despite the fact that you heard CHA BO might be a Fuk Yee Hing triad member, why did you continue to associate with him knowing it was in breach of PGO?

A1 I only heard he was Fuk Yee Hing, there was nothing to prove that. I knew him on a friend basis for 20 years and I treated him as a friend, that is all. Anyway, I only saw him once a year at a Dai Sik Wui and on the occasion we went back to China. I do not really look at that as associating."

7. In subsequent disciplinary proceedings brought against the applicant in 1996, the Superintendent found him guilty in respect of his association with six persons including Cheng of contravening order 6-01(2) of chapter 6 of the PGO. In that chapter, under the heading of "conduct", three of the orders read as follows:

(1) A police officer shall maintain a standard of physical fitness commensurate with his duties as a police officer and shall take all reasonable steps that may be required of him by the Commissioner to maintain such a standard of fitness. To this end, a police officer is required to be temperate in his habits.

(2) Other than in the course of duty, a police officer shall not associate with known criminals or triad personalities. Officers are also advised that they should not associate with persons of doubtful or undesirable reputation.

(3) A police officer shall not directly or indirectly solicit or receive any gratuity, present, subscription or testimonial without the consent of the Commissioner. (emphasis added)

8. Having exhausted all internal avenues of appeal, the applicant applied for judicial review of the Superintendent's finding. On 4 November 1997, Findlay J allowed the application and remitted the case for reconsideration. The basis of the judge's decision, as conceded by the respondent in those proceedings, was that the Superintendent misconstrued the word "known" in order 6-01(2) as "generally known" and not necessarily "known to the defaulter". The term "defaulter" is defined by the Police (Discipline) Regulations as "a police officer charged with a disciplinary offence". The judge directed the Superintendent to hear argument on whether, considering all the evidence, including further evidence allowed to be adduced, he should be satisfied beyond all reasonable doubt that the applicant knew that some or all of the persons named were triad personalities.

9. At the resumed hearing and all subsequent hearings before the Superintendent, no further evidence was adduced by either side. On 8 October 1998, following the direction of Findlay J that "known" meant "known to the defaulter", the Superintendent acquitted the applicant of the charge regarding five of the six persons. He expressly relied on the evidence presented to him and accepted by him in the earlier proceedings and concluded as follows:

"The prosecution has established beyond all reasonable doubt the association of the defaulter other than in the course of duty with CHENG Wui-ming who was known to the defaulter a triad personality."

10. It was against this decision of the Superintendent and the consequent decisions of the respondents herein referred to in the first paragraph of this judgment that the applicant sought judicial review. On 30 June 2000, Hartmann J dismissed the application and on 11 July 2000, he ordered 70% of the costs of the application be borne by the applicant. Against these orders of the Judge, the applicant now appeals.

Scope of the substantive appeal

11. The scope of the appeal is very narrow. There is no challenge on the rule-making powers of the Chief Executive and the Commissioner, respectively under ss 45 and 46 of the Police Force Ordinance, Cap 232, pursuant to which the Commissioner made the PGO. Nor is there any issue raised on the provisions of s 30 of the Ordinance that "every police officer ... shall obey and conform to police regulations and orders made under" the Ordinance. While it is not disputed that "known" in the context of "known criminals or triad personalities" in order 6-01(2) of the PGO must be "known to the applicant", the first ground of appeal directs at the Judge's ruling of "known" as meaning "reasonable belief" on the part of the defaulter. The contention of Mr Dykes SC, for the applicant, is that "known" must be actual knowledge on the part of the applicant.

12. The second ground of appeal is that the Judge failed to hold that there was no sufficient evidence before the Superintendent supporting his finding of fact that the applicant had admitted association with a known triad personality. It is contended that the applicant denied knowing that the persons named in the disciplinary charge including Cheng were triad personalities. The rest of the evidence did not support the finding that the applicant had admitted that he had reasonable grounds for believing Cheng to be a triad personality. There is, however, no challenge that the applicant did associate with Cheng.

Applicable principle in review

13. It is well established that the applicable principle in a judicial review of this sort, as agreed by both parties, is that contained in Lord Diplock's judgment in Mahon v Air New Zealand [1984] AC 808, at 820G-821B where he said:

"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."

14. It is therefore plain that as far as evidence is concerned, the court's task is only to review the record of the disciplinary proceedings to see if there was some material before the tribunal whose finding is assailed that tends logically to support the finding. It is not for the court in any other way to evaluate the evidence, far from it to assess the credibility or reliability or otherwise of the evidence.

Interpretation of the order

15. I should first deal with the interpretation, for if the interpretation adopted by Hartmann J ("the Judge") is wrong the appeal must be allowed, because it is common ground that the applicant did not admit expressly or specifically that he knew that Cheng was a triad personality and there was no evidence before the Superintendent that he had such actual knowledge.

16. In his judgment, the Judge cited the three orders in chapter 6 of the PGO referred to above to demonstrate the broad style in which the orders were drafted. He went on:

"They do not constitute statutory legislation and are not so intended. At the other end of the spectrum, they are, in the main, much more than mere guidelines or institutionalised advice: they are orders which must be obeyed under fear of penalty. In my judgment, they constitute directions given to the police officers to ensure that, in matters of general behaviour, they conduct themselves in a manner which befits their training and professionalism and which ensures that they do not abuse their public trust. In the eye of the public, the integrity of the force at large is reflected in the integrity of each officer. Police general orders are intended to maintain that integrity. To that end, I am satisfied that they are deserving of benevolent construction, due regard being had to their purpose and to the mischief they seek to avoid."

17. The Judge also dealt with Mr Dykes' argument, similar to that raised before us, as follows:

"Mr Dykes, who appeared for the Respondent (sic), argued that 'known' cannot include the weaker meaning of 'reasonably believed or suspected'. But I do not think I am distorting the plain meaning of the words when I say that knowledge here must encompass reasonable belief. Triads do not register their membership. Even a criminal conviction for the commission of a triad offence is not proof that the person remains a triad. If some form of admission is made, it is rarely made in the public arena so that it may be witnessed and become the subject of third party testimony. All of these things will be well known to the police officers who are the subject of order 6-01(2). In the circumstances, I am satisfied that officers, who must tailor their conduct according to the constraints of the police general orders, will know and understand full well that they will be guilty of a disciplinary offence if they associate with a person who they have reasonable grounds to believe is a triad personality. That, without distorting the plain language of the order, but employing a benevolent interpretation that looks to the mischief to be avoided, must be the true meaning and intent of the order." (emphasis added)

18. Mr Dykes contended that where the word "known" is used in a statutory provision governing the providing of information that carries with it penal sanctions for providing false information it does not mean "ought to have known". Reliance is placed on London Computator, Ltd v Seymour [1944] 2 All ER 11 where Viscount Caldecote LCJ said at 12F as follows:

"... in my judgment, the word 'knows' means what it says in this regulation, for the simple reason that the regulation goes on to provide for a state of facts in which actual knowledge cannot be proved because it allows a charge to be laid against a person (which was not laid against this appellant) who recklessly makes statement which is false in a material particular."

19. It follows, so he contended, that the Judge erred in glossing the word "know" as meaning "reasonable belief". The basis of his contention is that absent a legislative or a contextual prompt that a word may not bear its ordinary or usual meaning, a decision-maker may not construe a word to make it mean something other than its ordinary meaning.

20. London Computator concerned a regulation that provided for two different mental elements, namely, "knowledge" and "recklessness", which clearly distinguishes it from the provisions of order 6-01(2) in this case. While the word "know" was used in the regulation in London Computator, the words we have to deal with in this appeal is "known criminals or triad personalities" in order 6-01(2) of the PGO. The meaning of this phrase is not as plain as the word "know" and does give rise to ambiguity, at least as that evidenced in the precursor of this action and dealt with by Findlay J and in the case of Cheng Wai Kit v Commissioner of Police, HCMP 3208/96 (24 April 1997, unreported) where Sears J said:

"The adjudicating officer, in my judgment, approached the matter very fairly because he first asked himself the question whether or not there had been an association, and secondly, whether or not he knew of the triad criminal backgrounds."

21. Findlay J agreed with Sears J that "known criminals or triad personalities" must involve the knowledge of the defaulter and does not merely mean general knowledge unknown to the defaulter. They resolved the ambiguity in favour of the defaulter. What the exact meaning of "known" is, in other words, the extent of the defaulter's knowledge, may be said to be another ambiguity requiring proper construction. This exact meaning had not, however, been resolved until the Judge's decision. He looked at the whole circumstances and the mischief directed at by the order in order to discern its true meaning.

22. At this juncture, it is instructive to refer to the interpretations of the meaning of knowledge in the three cases that Mr Westbrook, for the respondents, has drawn to our attention.

23. In National Bank of Australia v Morris [1892] AC 287, the Privy Council was construing an Australian statute which provided that payment by a debtor to a creditor before the sequestration of the debtor's estate shall be deemed a valid payment provided that the creditor "shall not at the time of payment have 'known' that the debtor was then insolvent". Lord Hobhouse delivering the judgment of the Judicial Committee said at 290:

"Their Lordships conceive that if the creditor who receives payment has knowledge of circumstances from which ordinary men of business would conclude that the debtor is unable to meet his liabilities, he knows, within the meaning of the Act, that the debtor is insolvent."

24. In Vines v Djordjevitch [1955] 91 CLR 512, the High Court of Australia dealt with a statutory provision allowing a person injured by an unidentified motor vehicle to sue a nominal defendant and obtain compensation provided he proved that he gave notice of his intention to claim as soon as possible after he "knew" that the identity of the vehicle could not be established. The Court stated:

"The word 'know' is used in the provision in an ordinary sense, without any intention that it should be analysed or refined upon. But of course there are gradations of knowledge or belief upon such a matter. The gradations extend from the slight inclination of opinion to complete assurance. Here it seems to amount to an awareness of consciousness that no reasonable probability exists of ascertaining the identity of the car satisfactorily or with any certainty. Complete assurance is by no means necessary. When the plaintiff has come to think that the identity cannot be established that is enough. If the expression 'think' must be refined upon, it may be said to mean that the steady preponderance of his opinion or belief is that it cannot be done."

25. Most recently, there is the decision in White v White and the Motor Insurers Bureau, The Times 6 March 2001, in which the House of Lords considered an exception to the payment of MIB compensation where the MIB can prove that the person who voluntarily entered the vehicle which caused him injury "knew it was uninsured". In the transcript of the judgment [2001] UKHL/9 so helpfully produced by Mr Westbrook, Lord Nicholls (with whom Lord Mackay, Lord Cooke and Lord Hope agreed) said:

"In this context, knowledge by a passenger that a driver is uninsured means primarily possession of information by the passenger from which the passenger drew the conclusion that the driver was uninsured. Most obviously and simply, this occurs where the driver told the passenger that he had no insurance cover. Clearly, information from which a passenger drew the conclusion that the driver was uninsured may be obtained in many other ways. Another instance would be when the passenger was aware, from his family or other connections with the driver that the driver had not passed his driving test ('if he'd taken the test, I would have known'). Knowledge of this character is often labelled actual knowledge, thereby distinguishing other types of case where a person, although lacking actual knowledge, is nevertheless treated by the law as having knowledge of the relevant information.

There is one category of case which is so close to actual knowledge that the law generally treats a person as having knowledge. It is the type of case where, as applied to the present context, a passenger had information from which he drew the conclusion that the driver might well not be insured but deliberately refrained from asking questions lest his suspicions should be confirmed. He wanted not to know ('I will not ask, because I would rather not know'). The law generally treats this state of mind as having the like consequences as would follow if the person, in my example the passenger, had acted honestly rather than disingenuously. He is treated as though he had received the information which he deliberately sought to avoid. ..."

26. Needless to say, the meaning of "know" in each case must be viewed and construed in its context. Although the constructions of "know" in the above three authorities were made in different contexts, the common phenomenon is that these highest courts in the common law system did not feel themselves bound by attaching the meaning of "actual knowledge" to the word. What has fallen from Lord Nicholls is most illuminating in my consideration of the Judge's construction of the phrase "known criminals or triad personalities" in order 6-01(2).

27. Having examined all the circumstances of this case and the spirit and intent of the order, I agree with the Judge's interpretation and the reasons he gave in support. The order was made for controlling the conduct of police officers who are doubtless seen by members of the public as law enforcement agents, and by many even as the only source of law enforcement available to help when the safety of their person, freedom and property is threatened. Police officers must be seen by the public to be persons of high integrity in whom the public can repose their trust and reliance. It would be most undesirable for police officers to associate or be seen mingling with criminals or triad members, and that must be the spirit in which order 6-01(2) is to be viewed. The Judge's interpretation of the order is proper and correct.

28. During the course of argument, my brother, Keith JA, directed certain questions at counsel, which raised interesting points regarding the proper interpretation of the order. They start from the premise that the words "known criminals or triad personalities" must mean the person named in the charge ("the subject person") is "known to the defaulter" as a criminal or triad personality. No argument has been raised to contra that premise. The word "known" may have a separate meaning as an adjective in the sense that the subject person may be "generally known to be a criminal or triad personality" or alternatively may be "known as a fact as an actual criminal or triad personality": the question is, which one should be the proper interpretation? In other words, whether it is sufficient for a charge under the order to be proved by way of the defaulter knowing the reputation of the subject person or by way of his knowing the actual status of the subject person. Another point of interest raised is whether the knowledge of the defaulter required to be proved is "actual knowledge", "belief" or a "mere suspicion", in that descending degree. If "belief" is the proper construction, is it necessary for it to be "genuine belief" or is it necessary to be "reasonable belief"?

29. On the first question, albeit being academic because Mr Dykes accepted that Cheng was a triad, he submitted that the defaulter's knowledge of the subject person's actual status as a triad personality is required. He relied on the second sentence in order 6-01(2) for assistance, which states that "Officers are also advised that they should not associate with persons of doubtful or undesirable reputation". He submitted that since the word "reputation" is used in the second sentence which provides a mere advice, that clearly demonstrates that the first sentence proscribing association with "known criminals or triad personalities" must relate not only to reputation.

30. Mr Westbrook, however, drew assistance from the word "personality". He submitted that the word "personality" was an imprecise expression. If actual status is intended, the order would have used a term like "triad members" instead. It is accepted by both parties that it is difficult to prove triad membership, to which difficulty the Judge had also alluded, and that may be one of the reasons why offences relating to triad involvement are constituted by mere "professing" or "claiming" to be triad members, in addition to being a member of a triad society (see s 20(2) of the Societies Ordinance, Cap 151).

31. I reject Mr Dykes' arguments because I am of the view that the second sentence of the order does not help him. It deals with the subject person being of "doubtful or undesirable" reputation, not necessarily with a reputation of being a criminal or triad. Examples of the persons covered by the second sentence may include a prostitute who may not be guilty of any offence for operating as a prostitute from a flat occupied only by herself (therefore not having committed any crime), and a local bully who has not committed any crime or had any connection with any triad society.

32. On the other hand, I am persuaded by Mr Westbrook's submissions on this question for the reasons proffered by him. 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 for proscribing the conduct of police officers in this regard.

33. 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 suspicion alone, such as wild rumours, or else it would put too onerous a burden on them.

34. I now turn to "belief", whether it is necessary to be "belief based on reasonable grounds" or "genuine belief" alone will do. While Mr Dykes submitted that "genuine belief" should be the proper test, Mr Westbrook seemed to agree with him until he gave his reasons. Mr Westbrook relied on Sears J's dicta in Cheng Wai Kit to say that insofar as the defaulter had been told directly by another police officer that the subject person was a triad, that would be sufficient evidence to convict the defaulter of breaching the order. Sears J said:

"In my judgment, had there been some other evidence which will link this applicant with either of those triads, in other words, that a report had been brought to his attention whilst as station sergeant that these were suspected triads or something of that nature, or for example that another officer spoke directly to the applicant and told him that these were triads. Had that type of evidence been given together with this other evidence, the adjudicating officer would have been fully justified in coming to the conclusion to which he did."

35. Mr Westbrook submitted that the source of knowledge of the defaulter was important, because if the information came from a police officer in the example given by Sears J, that would be sufficient for the adjudicating tribunal to find that the defaulter genuinely believed that the subject person was a triad personality. If the information came from a child without knowledge of such matters, that would not be sufficient to support a finding of "genuine belief". If my understanding of Mr Westbrook's reasoning is correct, it appears that in fact he was saying that "reasonable belief" instead of "genuine belief" should be the test. Apart from a rare case where the defaulter has made admission that he believes the subject person to be a triad personality (and therefore the belief held is genuine), Mr Westbrook's examples require the adjudicating tribunal and the court, if the matter is brought for judicial review, to consider the source by which the defaulter came to his belief and all the surrounding circumstances in order to decide whether the defaulter held a genuine belief. 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. That goes back to whether there are reasonable grounds for his holding the belief, an 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.

36. The Judge's interpretation was described in two different ways: the defaulter must "reasonably believe" or he had "reasonable grounds to believe" that the subject person is a criminal or a triad personality. As I see it, there seems to be a slight difference in the two expressions. "Reasonable grounds to believe" requires the examination of the grounds in an objective manner whether they are reasonably capable of grounding the belief. On the other hand, "reasonably believe" may be construed as "having reasonable grounds to believe" (identical to the immediate preceding interpretation), or "having reasons to believe". The second alternative may involve two meanings. First, it involves an examination of the subjective reasons of the defaulter whether he had any reasons that he considered relevant in grounding his belief. The second meaning is to apply an objective test whether he had reasonable grounds for his belief. This second interpretation is the same as "reasonable grounds to believe", but the first one would require the application of the subjective test. In view of the mischief that the order was imposed to cure and the importance of the image of police officers to the general public, and for the reasons I have given above, I am of the view that the construction where the objective test of "reasonable grounds to believe" is applied should be adopted.

The evidence

37. The crux of the evidence before the Superintendent was contained in the records of interviews that have been set out above. Mr Dykes submitted that there was insufficient evidence capable of supporting the Superintendent's finding that the applicant associated with Cheng, a known triad personality. He argued that in answer A22 cited above, the applicant specifically said that he did not know any of the persons queried (including Cheng) were engaged in illegal activities or were triad members. The applicant in answer A1 above stated that he only heard that Cheng was Fuk Yee Hing but that there was nothing to prove that. It was therefore contended that not only was there no admission that the applicant knew Cheng was a triad personality, but also that although he heard that Cheng was a Fuk Yee Hing, he stressed that there was nothing to prove that or what he heard was true.

38. Mr Dykes complained that the interviewing officer did not follow up to reconcile the applicant's "did not know" answer with his later answers that "he heard" Cheng was a triad. The interviewing officer did not ask whether the applicant believed the source. He did not ask him the identity of the source. He did not ask him whether he suspected that Cheng could be a triad. He did not ask him whether his long friendship with Cheng meant that he was in effect discounting the information from the unknown source.

39. I do not think the "did not know" answer and the "he heard" answer needed to be reconciled in the circumstances. The first answer was generally relating to all six persons involved, whereas the second answer referred to Cheng specifically. The second answer must be reasonably considered as qualifying the first answer and clarifying it.

40. All the suggested follow-up questions, of course, could have enabled more light to be shed on the applicant's knowledge whether Cheng was a triad. Notwithstanding, I do not think that the absence of such questions had or would have the effect of rendering the process unfair or against natural justice. The interviewing officer in Q1 had specifically warned the applicant that his association with Cheng amounted to a breach of the PGO. As a senior police inspector, the applicant should have known what the investigation was about and the serious nature of it. Indeed, his answer in A1 demonstrates that he appreciated all that. I repeat his answer below:

I only heard he was Fuk Yee Hing, there was nothing to prove that. I knew him on a friend basis for 20 years and I treated him as a friend, that is all. Anyway, I only saw him once a year at a Dai Sik Wui and on the occasion we went back to China. I do not really look at that as associating."

41. He was relying on the absence of proof that Cheng was a triad and that he did not consider his relationship with Cheng as being associated with him. He had grasped the ingredients of the charge. The follow-up questions suggested by Mr Dykes might have drawn answers acquitting the applicant of the offence investigated. But even if so, there was nothing to prevent the applicant from giving further explanation to the investigating officer why what he heard about Cheng was not true or he did not believe that Cheng was a triad and the bases of such disbelief. He was apprised of the charge and he knew that he was being investigated about it. He obviously appreciated the seriousness of the charge for being in breach of PGO and he dealt with the two ingredients of the charge, namely, his "knowledge" of the criminal and triad connections of the person that he "associates with". He was a police officer of senior inspector rank and had been in the police force for over 20 years at the time. He frankly made an admission that he had heard Cheng was a Fuk Yee Hing. The name of the triad society is specific. Had he wished to seek further information as to what he had heard was true or not, it was within his power and competence to have done so. Yet, apart from the above answer no further explanation was proffered by him. I do not think that he can now legitimately complain.

42. When dealing with the sufficiency of the evidence, the Judge concluded that there was sufficient evidence to support the finding because there were reasonable grounds for the applicant to believe that Cheng was a triad personality or the applicant reasonably believed that Cheng was a triad personality. The Judge derived support for his conclusion from the dicta of Sears J in Cheng Wai Kit referred to above.

43. The Judge also accepted Mr Westbrook's submission that if a police officer could circumvent the order by saying "Well, I've heard he is triad, but I have no clear proof of it so I shall ignore it" and then continue to associate with such people, the order would be robbed of effect.

44. Implicit in these views expressed by the Judge is that he was satisfied that the Superintendent had taken into account all the evidence and circumstances revealed before him in making the finding against the applicant, beyond all reasonable doubt. The answers by the applicant that he heard Cheng was a triad and that "there was nothing to prove that" appear vague to a person not within the Police Force, perhaps making it difficult for a decision to be made as to whether he is sure that the applicant associated with a triad personality. However, that Cheng being a triad was heard by the applicant, an experienced senior inspector. He was described by the Superintendent as "a very experienced crime formation officer" and "having worked in various crime formations and in particular Regional Crime Units". This was supported by the posts that the applicant had held as admitted in the records of his interview, as follows:

"I joined the Police Force in 1974 as a constable and was promoted to Inspector in 1978. I was advanced to SIP about 5 years later. I am currently posted as OC Reserve Team I Tai Hing and doubling up as the ADVC (ie, Assistant Divisional Commander) Crime Tai Hing until 21 January 1995.

2. In about 1980 I was first posted to CID and in about 1986 I moved to traffic. In about 1989 I returned to CID and was posted to DATS TW (ie, District Anti-Triad Squad, Tsuen Wan). In about 1991, I moved to RCU NTN where I remained until mid 1994. I was then transferred to my current post."

45. The applicant's seeming disavowal of knowledge or reasonable belief that Cheng was a triad by uttering "there is nothing to prove that" must be viewed in the context and circumstances of his being a senior inspector with the experience as described and his capability in seeking information to prove or disprove, at least, the suspicion from what he had heard. If he had made any investigation into the matter, or if it was beyond his capability to investigate, he would have said so. Yet he did not give any further explanation to the investigating officer, nor did he elaborate on what he had done to qualify or support his using the words "nothing to prove that". He did not give any evidence on this matter either.

46. In his skeleton submissions, Mr Dykes stated:

"The court will also bear in mind the nature of the evidence. The court will accord greater respect to the decision maker's assessment where the nature of the evidence gives him some obvious advantage over the reviewing court, such as where he possesses some special expertise that is relevant or he has been required to make assessments of credibility and reliability after hearing 'live' evidence."

47. I agree with this submission. In the present case, the Superintendent obviously had great advantage over the court that merely examines the record of the process in which he made the finding against the applicant. He was a member the same Force to which the applicant belonged. He knew the training and professional requirements of police officers. He had the expert knowledge of the duties of police officers in different posts and how they perform them. He appreciated the degree of competence required of police officers. He was able to gauge how a police officer would react on hearing that a person was a triad. He understood the ways and means and capabilities of a police officer (and here the applicant in the position of a senior inspector and holding the posts mentioned) of how to make investigation or seek information to resolve a doubt or finding out whether what he heard was true. He was able to discern the difference, if any, between what a police officer knows when he hears someone is a triad from what a member of the public hears such a rumour with or without basis. On all these, the court must defer to his expertise.

48. Although there is no direct admission that the applicant knew that Cheng was a triad, there is nothing to show that the Superintendent's finding was unreasonable in the judicial review sense or is not capable of being supported by the evidence before him. I am not persuaded that the Judge erred in any respect as contended by Mr Dykes or in the second ground of appeal.

Appeal on the order for costs

49. The appeal against the Judge's order that the applicant was to bear 70% of the costs of the dismissed application is premised on the success of the substantive appeal. There is no argument from Mr Dykes that if the substantial appeal fails he would ask us to alter the order for costs.

Conclusion

50. For the reasons given, I would dismiss the appeal against both orders of the Judge dated respectively 30 June and 11 July 2000. I would also make an order nisi that the applicant do bear the costs of this appeal.

Hon Keith JA:

51. Mr Philip Dykes SC for the Applicant argued that to be guilty of the disciplinary offence created by police general order 6-01(2) ("the relevant order"), the person with whom the officer was associating has to have actually been a criminal or triad personality. It is unnecessary to decide for the purpose of this appeal whether that is correct because Mr Dykes conceded that there had been evidence before Supt. Tsang Choi-on (who constituted the appropriate tribunal for the purposes of the Police (Discipline) Regulations) to support Supt. Tsang's finding that Cha Bo had in fact been a triad personality when the Applicant had associated with him. The critical question which this appeal raises is what had to be proved about the state of the Applicant's knowledge about Cha Bo.

52. In the Applicant's previous application for judicial review against the Commissioner (HCAL 62/97), Findlay J held that to be guilty of the disciplinary offence created by the relevant order, it is not enough for the person with whom the officer was associating to have been generally known to be a criminal or triad personality. It was the officer's knowledge on which attention has to be focused.

53. But the officer's knowledge of what? Did the officer have to know that the person with whom he was associating actually was a criminal or triad personality? Or did the officer merely have to know that the person with whom he was associating was generally reputed to be a criminal or triad personality? In the earlier case, Findlay J assumed the former, and in the present case Hartmann J proceeded on the same assumption. In my opinion, the answer is the latter. I say that for this reason. Police general orders should not be construed in a vacuum. Their context is all important. The aim of the relevant order is to prevent public perception of a police officer's integrity and incorruptibility from being jeopardised by the company he keeps. That perception will be put at risk if the officer associates with persons whose reputation calls his integrity and incorruptibility into question, even if that reputation is undeserved. The second sentence in the relevant order shows that it is the reputation of the person with whom the officer associates at which the order is targeted. Thus, officers are merely advised not to associate with persons of doubtful or undesirable reputation, but if the reason for their reputation being doubtful or undesirable is because they are reputed to be criminals or triad personalities, there is an absolute bar on an officer associating with them other than in the course of duty.

54. Once it is recognised that all that has to be proved is that the officer knew that the person with whom he was associating was generally reputed to be a criminal or triad personality, what is the degree of knowledge required? Is it something which the officer has to have known for certain? Or is it something which he need only have suspected? Or is it sufficient that the officer believed that the person with whom he was associating was generally reputed to be a criminal or triad personality? And if belief is the state of mind which has to be proved, has that belief to have been reasonable? Or is it sufficient if that belief was genuinely held, even if the officer had no reasonable grounds for it? Hartmann J concluded that reasonable belief was the proper test.

55. There is little which can be said to be certain in this uncertain world, especially when it comes to something so intangible as a person's reputation. As Hartmann J said:

"Triads do not register their membership. Even a criminal conviction for the commission of a triad offence is not proof that the person remains a triad. If some form of admission is made, it is rarely made in the public arena so that it may be witnessed and become the subject of third party testimony."

Thus, I do not think that the persons who drafted the relevant order could have intended to require "the prosecution" to prove that the officer knew for certain that the person with whom he was associating was generally reputed to be a criminal or triad personality. However, merely to suspect that the person one is associating with is generally reputed to be a criminal or triad personality is no more than thinking that he might have such a reputation. I do not think that the persons who drafted the relevant order could have intended it to be sufficient for the "prosecution" to prove simply that. I have little doubt that what those who drafted the relevant order had in mind was belief, i.e. an officer had to be satisfied in his own mind that the person with whom he was associating was generally reputed to be a criminal or triad personality.

56. As for whether that belief had to be reasonably held, Hartmann J assumed that it had to be. I think that this question is more theoretical than real. The reasons which an officer had for his belief are almost certain to be such as to have made his belief reasonable. If the reasons were unreasonable, it is almost certain that the officer could not be said to have held the belief at all. But in those rare cases in which the question might not be regarded as theoretical, I would hold that the belief does not have to have been reasonably held. That is consistent with the underlying purpose of the relevant order. If it is designed to prevent an officer from associating with persons whose reputation might be seen to call the officer's integrity and incorruptibility into question, he should not be associating with them at all if that is what he believes about them.

57. In summary, therefore, for an officer to be guilty of the offence created by the relevant order, the officer has to have believed at the time of the association that the person with whom he was associating was generally reputed to be a criminal or triad personality.

58. I turn to the facts of the present case. The Applicant was interviewed twice by Senior Insp. Tarrant. Questions 22 and 23 of the first interview, together with the Applicant's answers to them, are set out in the judgment of Woo JA, and it is unnecessary for me to repeat them. It is plain that the Applicant was then being asked about his current state of knowledge about Cha Bo, not his state of knowledge about Cha Bo when he had been associating with Cha Bo. However, in the second interview later that day, the Applicant was asked:

"Despite the fact that you heard Cha Bo might be a Fuk Yee Hing triad member, why did you continue to associate with him knowing it was in breach of [police general orders]?" (Emphasis supplied)

This question assumed (albeit incorrectly) that the Applicant had been asked about his state of knowledge about Cha Bo at the time when he had been associating with Cha Bo. The Applicant did not seek to correct the erroneous premise on which the question had been asked. The answer he gave, which has also been set out in Woo JA's judgment, shows that whatever the previous questions had been, the Applicant was admitting that the one occasion on which he had heard that Cha Bo was a member of the Fuk Yee Hing had been before he had associated with Cha Bo on the occasion in question.

59. It is true that Supt. Tsang described the Applicant as having admitted that he had known that Cha Bo was a member of the Fuk Yee Hing, when all that the Applicant had admitted was that he had heard that Cha Bo was. But since the test was not knowledge but belief, the narrow questions which this appeal poses on the facts are

(a) whether it would have been open to Supt. Tsang to conclude, from the Applicant's admission that he had heard on one occasion that Cha Bo was a member of the Fuk Yee Hing, that the Applicant believed that Cha Bo was generally reputed to be a triad personality, and

(b) whether Supt. Tsang would in fact have come to that conclusion if he had asked himself that question.

It is to be noted that the Applicant was not asked by Senior Insp. Tarrant anything about the circumstances in which the Applicant had heard of Cha Bo's membership of the Fuk Yee Hing, i.e. who and when had told the Applicant that, in what circumstances and whether the Applicant's informant had explained the source of his knowledge. But it has to be said that in his interview with Senior Insp. Tarrant the Applicant never volunteered anything which might have minimised the quality of the information which he admitted having once got about Cha Bo's membership of the Fuk Yee Hing. In the circumstances, I have no doubt that it would have been open to Supt. Tsang to conclude that the Applicant believed that Cha Bo was generally reputed to be a triad personality, and that he would inevitably have come to that conclusion if he had asked himself that question. For these reasons, I agree with Woo JA that this appeal must be dismissed.

Hon Mayo VP:

60. I agree that the appeal should be dismissed and there is nothing that I can usefully add. Accordingly, the appeal is dismissed. We also make an order nisi that the costs of this appeal be paid by the applicant to the respondents, to be taxed if not agreed.

Representation:

Mr Philip Dykes SC, instructed by Messrs Chong, Leung & Co, for the applicant.

Mr Simon Westbrook, instructed by the Secretary for Justice, for the respondents.