Fu Kin Chi Willy v. Attorney General
Read the full judgment text of CACV 34/1997 on BabelCite. This Court of Appeal judgment was delivered on 14 May 1997.
1. This appeal concerns an application for judicial review brought by the appellant, a former Senior Inspector of Police.
|
IN THE COURT OF APPEAL 1997, No. 34 - Headnote - Judicial review of finding of misconduct on part of a Senior Inspector of Police by disciplinary tribunal - Misconduct arose when "defaulter" refused to answer questions put by a superior officer in course of an internal police investigation, when ordered to do so - Privilege against self-incrimination - Whether 'right to silence' can be invoked by a police officer as a member of a disciplined force having regard to the scheme of the Police Force Ordinance, Cap 232.
IN THE COURT OF APPEAL 1997, No. 34
________________
________________ Coram: Hon Litton, V.-P., Godfrey and Liu JJ.A. in Court Date of hearing: 24 April 1997 Date of handing down judgment: 14 May 1997 ________________ J U D G M E N T ________________ Litton, V.-P.: Introduction 1. This appeal concerns an application for judicial review brought by the appellant, a former Senior Inspector of Police. 2. He was compulsorily retired from the Police Force, following a finding of misconduct made by a disciplinary tribunal in July 1995, under Part III of the Police (Discipline) Regulations, Cap 232. 3. It is the appellant's case that the tribunal's finding of misconduct was vitiated by illegality. Mr Justice Yeung, in the exercise of his supervisory jurisdiction under s23K(1)(a) of the Supreme Court Ordinance declined to order relief in the appellant's favour. Hence this appeal. Background facts 4. The background facts can be briefly stated. In July 1993 a disturbance occurred at a karaoke lounge in Tsimshatsui East. Some men were beaten up and unlawfully detained. Criminal intimidation was also alleged. Suspicion fell upon the appellant. After further investigation, the appellant was suspected of criminal involvement in other matters as well: namely, offences under the Prevention of Bribery Ordinance and organising an unauthorised chit fund for police officers. 5. Chief Inspector Tarrant was given the task of interviewing the appellant. The first interview took place on 13 September 1993 when the appellant was told that he was a criminal suspect and cautioned as to his right of silence. The appellant declined to answer any questions. 6. There were further interviews in September and December 1993 and in January 1994 which are of relevance to the appeal only to this extent: The appellant knew that he was under orders to assist Chief Inspector Tarrant in his inquiries. 7. On 4 February 1994 the appellant was interviewed again at Kowloon West Regional Headquarters. By this time Chief Inspector Tarrant had concluded that a criminal charge against the appellant was impossible and that disciplinary action was called for. The Tribunal's finding was as follows:
8. The abbreviation "B.O.R." refers to the Bill of Rights. 9. It will be recalled that one of the matters under investigation was the suspicion that the appellant was involved in organising an unauthorised chit fund among police officers. At the start of the interview on 4 February Chief Inspector Tarrant made it clear to the appellant that he was investigating internal police disciplinary matters. Still, the appellant refused to answer the questions. This led to the disciplinary charge on which he was found guilty. The charge 10. The charge on which the appellant was found guilty states:
The appellant's case on appeal 11. The "illegality" alleged on this appeal, which is said to vitiate the tribunal's finding of misconduct, is formulated thus: At the interview on 4 February, the appellant had a common law privilege which could not be over-ridden by orders of his superior officers to assist in the internal police investigation: This common law privilege is the privilege against self-incrimination: The tribunal, in concluding that the appellant was guilty of misconduct in refusing to answer Chief Inspector Tarrant's questions, had misunderstood the law in this regard: This makes the tribunal's decision susceptible to judicial review under the first of Lord Diplock's three propositions in Council for Civil Service Union v. Minister for Civil Service [1985] 1 AC 374 at 410: "Illegality", "irrationality" and "procedural impropriety". 12. This point was barely touched upon in the court below. Interesting though the point is, it cannot be considered in a vacuum, for police officers have functions and duties which ordinary citizens do not have. An examination of the privilege and its scope in cases involving litigation between commercial entities - such as Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation [1978] AC 547 or Rank Film Distributors v. Video Information Centre [1982] AC 380 - can, at best, only provide a partial answer. The question whether senior police officers can invoke the privilege, and the extent of that privilege, must be viewed in the context of their functions and duties as law-enforcement officers, serving in a disciplined force. The police force 13. The Royal Hong Kong Police Force is a disciplined force under the supreme direction of the Commissioner: see s4 Police Force Ordinance, Cap 232. Upon taking up his or her appointment, and before entering on the duties of a police officer, every officer must take an oath of office in the form prescribed in the Schedule to the Police Force Ordinance: This includes an undertaking to "obey without question all lawful orders" of those set in authority over the officer concerned. 14. Section 30 states:
15. In terms of constitution and discipline, the Royal Hong Kong Police Force is similar to many other forces in the common law world. In this regard, the observations of Brennan J in Police Service Board v. Morris [1985] 58 ALR 1 at 11 are relevant:
16. It is within this context that the appellant's refusal to answer Chief Inspector Tarrant's questions at the interview of 4 February 1994 must be viewed. Duty to obey lawful orders of superior officers 17. The duty to obey lawful orders, as set out in s30 of the Police Force Ordinance, is, in terms, not subject to any qualifications. On the other hand, one would not expect it textually to do so because it deals with all manners of situations in which a police officer might be required to obey orders: It is not, of course, confined to the narrow situation where a police officer is required to answer questions in the course of an internal disciplinary inquiry. 18. In the lower court, it seems to have been thought axiomatic that if, on 4 February, the appellant could not reasonably have claimed such privilege in relation to apprehended criminal proceedings, then the application for judicial review must fail: The focus of the argument was therefore on whether, at the time of the interview, the appellant was still a criminal suspect. The appellant's primary submission, as understood by the judge, was this (p12, judgment):
19. This submission was rejected by the judge. Privilege against self-incrimination 20. On appeal, the argument as put by Miss Selina Lau (who did not appear in the court below) is a little more sophisticated. She says this: The privilege against self-incrimination is a deeply ingrained principle of common law, not to be lightly displaced unless the legislature has clearly intended that it should be so: Even in the context of disciplinary proceedings the privilege against self-incrimination applies because, in common law, a person cannot be required to answer questions if those answers might reasonably be thought to lead to penalties such as dismissal or compulsory retirement from the police force. In support of this proposition she refers to passages in Rio Tinto Zinc Corporation at 563C to 564D and 612B-E. At p563-D Lord Denning MR cited Bowen LJ in Redfern v. Redfern [1891] P139 at 147:
21. Lord Denning MR went on to point out that whilst the privilege with regard to forfeiture was abolished by s16(1)(a) of the Civil Evidence Act 1968, the privilege in respect of penalties remained. 22. Miss Lau has also a subsidiary point: Accepting, as she does, that any answers given by the appellant to Chief Inspector Tarrant on 4 February could not be used as evidence in criminal proceedings - the answers having been given under the orders of a superior officer and not under caution - the appellant was nevertheless privileged from having to answer Chief Inspector Tarrant's questions, because he was not specifically told that the criminal investigation was at an end: He therefore reasonably apprehended that his answers might lead to other evidence being discovered against him. In other words, Miss Lau draws a distinction between the incriminating use of his answers as evidence in criminal proceedings, and its use as a link to other evidence which might be used against him. To reinforce this point Miss Lau refers to a passage in Lord Wilberforce's speech in Rank Film Distributors v. Video Information Centre at 443-D where he said:
The respondent's case 23. Mr Bradley, counsel for the respondent, invites us to view the matter upon a narrow footing: Whilst it may be, he says, that the appellant was not obliged to give answers which might be used as evidence in criminal proceedings, the privilege could not be invoked when it became clear that Chief Inspector Tarrant was making inquiries only for the purposes of internal disciplinary purposes. He invites us to uphold the judge on this narrow application of the common law privilege against self-incrimination. The proper approach 24. The trouble with Mr Bradley's submission, as Miss Lau argues, is that if it represented the law, it would be very difficult to decide where the line is crossed. As Miss Lau says, how is the officer being interviewed to know if the answers he gives, though excluded from use as evidence in criminal proceedings, might not be used for investigative purposes, providing a link to other evidence which might be used against him? If the privilege is of real value, why should it not protect the officer from such consequences as well? 25. To arrive at the right answer, it is necessary to take a closer look at the privilege against self-incrimination: in other words, the 'right to silence' in the common law. 26. As Lord Mustill said in R. v. Director of Serious Fraud Office, ex p. Smith [1993] AC 1 at 30-F, the expression 'right to silence' does not denote any single right, but rather refers to a disparate group of immunities which differ in nature, origin, incidence and importance. 27. The classic situation is where a criminal suspect is under interrogation by 'a person in authority': he is induced to confess by 'fear of prejudice': the confession will be held inadmissible in evidence, having been made involuntarily: Ibrahim v. The King [1914] AC 599. Hence the traditional caution, reminding the suspect of his right of silence and warning him that anything he says will be taken down and may be given in evidence later on. The immunity here is an immunity possessed by all suspects, and it matters not if the suspect is a police officer or anyone else. If the interrogator should be a superior officer, and the suspect is ordered to answer the questions or face disciplinary action then a fortiori the answers are inadmissible in evidence. 28. This common law rule saves the suspect from having his answers being used against him evidentially in subsequent criminal proceedings; it does not help in deciding whether his failure to answer might expose him to internal disciplinary proceedings. To tackle this point we must look at the statutory scheme governing the discipline of police officers under which the claim to immunity is made. Duties of the police 29. Under s10 of the Police Force Ordinance, one of the first duties of the police is to take lawful measures for "preventing and detecting crimes and offences". 30. If an officer charged with this duty - as all officers are - is himself suspected of being engaged in criminal activities, it goes to the root of the police force as a force. It would undermine the effectiveness of the force if the superior officers did not have the fullest powers to investigate, when criminality within the force is suspected: either to allay the suspicion or to bring the culprit to book. Section 30 Police Force Ordinance 31. It will be recalled that s30 of the Police Force Ordinance requires every police officer to obey all lawful orders of his superior officers. Is it consistent with s30, in the context of the statutory scheme as a whole, governing the conduct of police officers, for an officer suspected of crime to be able to say to his superior: "Mind your own business: I will not help you in any way in your investigation". 32. I have put the proposition in this way because of Lord Mustill's approach to the right of silence in R. v. Director of Serious Fraud Office at p31D where, examining the motives which have caused the various immunities to be imbedded in the common law, he said:
33. Can this assertion of personal liberty and privacy sit comfortably within the context of a disciplined force, charged with the responsibility of preventing and detecting crime? 34. In my judgment, the answer must be NO. 35. I am reinforced in my view when I consider what the adjudicating officer said in finding the appellant guilty of misconduct. His finding was that the appellant had:
36. It would be an extraordinary thing - and one extremely disturbing for a community which depends upon the police force for its protection from crime - if, in the light of such a finding, the common law nevertheless would go to the aid of the suspect and render him immune from a disciplinary charge. 37. Another of the motives in granting the immunity identified by Lord Mustill in R. v. Director of Serious Fraud Office at p32C is "the desire to minimise the risk that an accused will be convicted on the strength of an untrue extra-judicial confession ...". Such a risk is hardly likely to be a real one when the interviewee is himself a police officer, familiar with the process of interrogation. 38. In Police Service Board v. Morris the majority of the High Court of Australia found that, in the context of good order and discipline of the Victorian police force, as regulated by the statutory scheme of that State, police officers were obliged to answer questions of their superior officers, even though the answers might expose them to penalties. Whilst the case is not on all-fours with the present one, it is an example of how the 'right of silence' embedded in the common law can be displaced. Bias 39. Counsel also submits that the proceedings before the tribunal were vitiated by bias because the prosecutor and the adjudicating officer discussed, in the appellant's absence, the form of a charge (Charge A) on which the appellant was in fact acquitted. The judge dismissed this point. Rightly so. Conclusion 40. As indicated earlier, the argument in the court below, in support of the application for judicial review, seems to have proceeded upon rather different lines to those put before us. This makes it unnecessary for this court to analyse more closely the judgment of the court below. 41. I would, for the reasons given earlier, uphold the judge's order and dismiss this appeal. Godfrey, J.A. : 42. The so-called "right of silence", the right invoked by the appellant here as justifying his refusal to answer the questions put to him, does not denote a single right; it rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they may have been encroached upon by legislation, as pointed out in R. v. Director of Serious Fraud Office [1993] AC 1; see per Lord Mustill at p.30. Among these may be identified three relevant here :
43. I agree with Lord Mustill (see p. 31) that "each of these immunities are of great importance". And, following the late Professor Glanville Williams (see The Proof of Guilt, 3rd ed., 1983, at pp. 52, 53) I would note that it is contrary to fair play to put a man in a position where he is exposed to punishment whatever he does; if he answers, he may condemn himself out of his own mouth; if he refuses, he may be punished for his refusal. We are concerned here with natural justice (sometimes described as "fair play in action"). 44. No doubt, legislation may nevertheless abrogate any or all of these immunities, either expressly or by necessary implication. But I share Lord Mustill's view (see p. 40) that there must be a "strong presumption" against so interpreting the legislation. 45. In the present case, the argument for the respondent, as I understand it, is that, despite that "strong presumption", section 30 of the Police Force Ordinance, Cap. 232 (set out in Litton V-P's judgment) is to be read as abrogating the immunities on which the appellant would or might otherwise have been entitled to rely in refusing to answer the questions put to him. 46. For my part, I have no doubt that, absent section 30, a police officer who is questioned by another officer in connection with criminal activities in which he is suspected of having been involved (which is this case) would be entitled to refuse to answer the questions put to him on the ground that his answers might expose him to pain of punishment in the form of disciplinary action. 47. Does section 30 compel a different result? Clearly, it does not expressly purport to do so. Does it do so by necessary implication? I start with the "strong presumption" that it does not; so the question becomes : Is there anything here which displaces that "strong presumption"? 48. In my opinion, there is not. 49. Before explaining why I reach this conclusion, I must point out the question here is not whether it would be legitimate for a law-making body to act so as to deprive a police officer of the right to claim the immunity claimed by the appellant here. The maintenance of public confidence in the integrity of the police force would, in my opinion, clearly justify the law-making body in so acting. But, as it seems to me, it cannot be said that the making of such a law is necessary for that purpose. For example, in England and Wales, the law-making body for the police, far from depriving the police officer of his immunity, has chosen expressly to confirm it. The subject of an investigation such as that conducted in our case must, in England and Wales, be informed that he may (but is not obliged to) make a written or oral statement concerning the matter to the investigating officer : see regulation 7(a) of the Police (Discipline) Regulations 1977 (emphasis added). 50. I do not believe that what is not considered necessary in England and Wales must be considered necessary in Hong Kong. No sensible distinction can be drawn, in this connection, between England and Wales, on the one hand, and Hong Kong on the other hand. 51. So I return to the question whether there is anything in the language of section 30 which, by necessary implication, displaces the "strong presumption" that the legislature did not intend to deprive police officers of such immunity as the appellant here now claims. 52. I have reached the conclusion that there is nothing in the language of section 30 (expressed as it is in very general words) which compels the conclusion that the legislature did indeed intend to deprive police officers of that immunity. 53. I appreciate that this conclusion runs counter to some of the views expressed in the High Court of Australia in Police Service Board v. Morris (1985) 156 CLR 397. There, the High Court of Australia, although holding (in any respectful opinion, correctly) that the privilege against answering questions the answers to which might expose a person to a penalty was capable of applying to a statutory provision which required members of the police force to answer questions tending to show the commission by them of disciplinary offences, went on to hold that the privilege was there excluded by regulation 95A(7) of the Police Regulations 1957, which provided that "no member of the Force shall ..... disobey ..... any lawful order .....". 54. There is no significant distinction between that regulation, on the one hand, and our section 30, on the other hand, and if we were bound by the authority of this case we would be bound to dismiss this appeal. But we are not bound by that authority, and I think that we ought not to follow it. Gibbs CJ (with whom Wilson, Brennan and Dawson JJ agreed) thought (see p. 404) that the regulation, which was primarily designed to secure the obedience to orders rather to compel the answering of questions, indicated both that the application of the privilege would be inappropriate and that the obligation to obey lawful orders was not intended to be subject to any unexpressed qualification. Like Hamlet, I would require "grounds more relative than this" to persuade me that such language as is used in the regulation there and in our section 30 is apt to displace the "strong presumption". I prefer the view of Starke J (in the Full Court of the Supreme Court of Victoria), who apparently (see per Gibbs CJ at p. 404) had regarded the fact that the words of the regulation were of the widest possible description and applied to lawful orders of every kind indicated that it was improbable that the legislature ever turned its mind to the principle of self-incrimination when framing its provisions. And I prefer the view of Murphy J (dissenting), in the High Court of Australia (see p. 406), to the effect that the regulation did not exclude the privilege against self-incrimination, either by express words or by necessary implication. He pointed out (as I think, correctly) that the argument for implication was the desirability of such an implication in the interests of efficient administration of the police force; but that, whatever weight was given to such argument, any implication arising from it was not "a necessary implication" (emphasis original). He added that if the legislature wished to exclude the privilege against self-incrimination, it might do so, but that, in his opinion, it had not done so. This precisely and concisely expresses my own view upon the case before us. 55. Accordingly, I would allow this appeal. Liu, J.A.: 56. It is said that "the privilege against self-incrimination is deeply ingrained in the common law". See Sorby v. The Commonwealth of Australia [1983] 57 ALJR 248 at p. 260 C LHS; (1983) 152 C.L.R. 281 at p. 309, per Mason, Wilson and Dawson JJ. However, whether this common law privilege against self-incrimination is capable of applying to non-judicial proceedings is an eagerly debated question. 57. So far as Australia is concerned, this common law privilege has been held to be more than a rule of evidence exclusively for judicial proceedings. It can be, therefore, claimed in an non-judicial setting such as an executive or administrative enquiry. See Sorby, supra. 58. The interview of the appellant on 4 January 1994 by Chief Inspector Tarrant between 11.40 pm that day to the next morning at 00.45 am was such a non-judicial investigation. At the interview, a Pol. 134 form was used. It was headed "STATEMENT/REPORT". The appellant was given to understand that the statement taken would not be used against him in criminal proceedings but that it might be used for informal disciplinary investigations, including possible disciplinary matters of action against him. The appellant was also told the purpose of the interview although Chief Inspector Tarrant was unable to say what disciplinary action, if any, might be considered following the investigation. The Chief Inspector explained to the appellant that he was investigating an assault and intimidation case, that he believed that the appellant might have some information which would assist police enquiries into the matter and that it was the appellant's duty as a serving police officer to assist. 59. Sorby was a majority decision. In the absence of any binding precedent, the majority approached the issue from "the stand point of principle", holding in traditional abhorrence the possibility of compelling a man to convict himself out of his own mouth. It has long been recognised that "the privilege against compulsory self-incrimination is part of the common law of human rights." See Pyneboard Pty. Ltd. v. Trade Practices Commission (1983) 152 CLR 328 at p. 346; (1983) 45 ALR 609 at p. 621 line 39 - 40. It is unsurprising that by a majority the Australian High Court held the privilege against self-incrimination as being inherently capable of applying to all proceedings, including those non-judicial. The minority comprising Murphy and Brennan JJ took a different view. They decided that the common law rule against self-incrimination was restricted to judicial or quasi-judicial proceedings. Brennan J focused on the historical development of this common law rule. The judge found no warrant in the history of this common law privilege for applying it "to a statutory obligation which has no common law analogue". See Sorby, supra p. 263 LHS in ALJR; p. 317 in C.L.R. He came to the conclusion that this, called the right to silence in the rhetoric of rights, was confined by principle and history to judicial proceedings and that by its very nature, it could not be extended to include non-judicial proceedings. 60. I am impressed by the historical analysis of Brennan J in Sorby in which he recorded his dissent. He had the support of Murphy J. at least in the later decision of Police Service Board v. Morris (1985) 156 CLR 397 at p. 407. But when proper regard is paid to judicial liberalism coupled with the recent development of human rights and good sense, the majority decision of the Australian High Court should, in my view, prevail. After all, in Pyneboard Pty Ltd., supra at p. 340 in CLR and p. 617 in ALR line 19 - 20, the common law rule against self-incrimination was described by Mason ACJ, Wilson and Dawson JJ as "too fundamental a bulwark of liberty to be categorised simply as a rule of evidence". I am therefore prepared to assume that this right to silence would apply to non-judicial proceedings, such as the investigation conducted by Chief Inspector Tarrant in this case. 61. This common law rule against self-incrimination can be excluded, expressly or by necessary implication, by statute. I pass then to consider whether s. 30 of the Police Force Ordinance Cap. 232 excludes this right. Section 30 reads:
62. Similar wording for obeying lawful orders of superior police officers, written or otherwise, in regulation 95A (7) of the Police Regulations 1957 in Australia was held insufficient to dispense with this common law privilege by a majority of the Supreme Court of Victoria. See Police Service Board v. Morris supra at p. 406. But the majority in the Australian High Court decided that the same Victoria regulation 95A (7) abolished altogether such a privilege. Police Service Board v. Morris supra. In order to abrogate this common law rule, the legislature must resort to clear and unmistakable language. In addition, the character of the provision and the purpose which it was designed to serve, must demonstrate the plain intention of the legislature to take away such an important common law right. That much is basic. Does s. 30 of the Police Force Ordinance take away such a right? 63. It is too critical an issue for this court to take shelter behind the majority decision of the High Court of Australia in Morris case, markedly less commendable behind that of the minority. We should at least try to make an effort to examine our statutory regime in its proper context. Section 30 does not expressly confer a power to demand an answer from subordinate police officers. Therefore on basic principles, this court has to determine whether the section impliedly excludes that privilege in Hong Kong. 64. I should first consider the character of our statutory regime and its purpose. The parallel legislation in the United Kingdom is not quite similar. We must not lose sight of the fact that the United Kingdom legislation for regulating their own police force is designed to monitor their officers so as to maintain their efficiency. In London, disciplinary investigations are governed by the Police (Discipline) Regulations 1977. A summary of the relevant provision can be found in Halsbury's Laws of England, 4th Edition, Vol. 36, para. 274:
65. In Hong Kong, we lean heavily on the police force for our stability and prosperity. It is a body which can operate effectively for our benefit only under proper discipline. 66. Section 26 of the Police Force Ordinance requires every police officers to take an oath or declaration of office before entering on the duties of his office. He is required to commit himself "that (he) will obey without question all lawful orders of those set in authority over (him)" in terms of a set form in the Schedule to the Ordinance. The police is a disciplinary force whose members have solemnly agreed to curtail their freedoms. As a colony, there must have been good reasons for making Hong Kong's regulatory measures in police disciplinary investigation more rigid than those practised in the United Kingdom. In any case, our regime is decidedly different. For any police force it would be absurd that each time a lawful order is given, a subordinate police officer may question it under the pretext of fearing self-incrimination. If there were room in our regime for claiming the right to silence, police work would necessarily be obstructed or delayed pending the resolution of such a claim. It would be less than desirable to leave a claim in the hands of a mostly unqualified superior officer for ascertaining as to whether or not a claim for privilege is correctly made. On the other hand, police work could not afford to grind to a halt for seeking a court determination on every claim of privilege. If a police officer under suspicion for misconduct in the performance of his duty were free to claim the right to silence, suspicion would not be dispelled but only heightened, and that would undermine police efficiency and probity. The effectiveness of our police force which depends much on public trust and respect may thus be impaired. Attention has been drawn to many of these notable features in other jurisdictions. In addition, Hong Kong stands virtually on her own. We have no reinforcement or reserve to draw from any neighbouring counties. In our small community, there would be all the more reason for the police force to be alerted to every lapse in discipline. The regulatory legislation in our regime, which is primarily designed to secure obedience to lawful orders rather than to compel the answering of questions, indicates both that the continued subsistence of the rule to silence would be inappropriate and that there is no warrant for subjecting the obligation to obey lawful orders under s. 30 to any qualification. The character of the provision in s. 30 and the purpose the Hong Kong regime is designed to serve do not admit the operation of the common law principle. Lawful orders given in the investigation of disciplinary offences must also be obeyed. Clearly, the right to silence is inconsistent with the nature and purpose of that part of our law, by which the legislature seeks to regulate the efficient operation of our police force. The possibility of a subordinate officer raising such a claim of privilege in the face of a lawful order to give an account of his activities whilst on duty would subvert discipline of the force. Police discipline fosters public confidence in it. Disciplinary proceeding is one of the means of ensuring that individual police officers do not jeopardise public confidence in the discharge of their police duties. The public has a right to expect no compromise in the efficiency or integrity of members of the police. 67. What is the language used? S. 30 is a provision couched in the widest possible terms to ensure obedience by subordinates to lawful orders given by superior police officers. A solemn undertaking to that effect has also been exacted from officers in his oath or declaration upon entering the disciplinary service. The Commissioner of Police may under s. 31 of the Police Force Ordinance summarily dismiss a police officer who is guilty of contravening any police order, whether given verbally or in writing. Under Regulation 3(2)(e) and (h) of the Police (Discipline) Regulations, a disciplinary offence is committed if police orders, whether written or verbal, are contravened or neglected. Not only is the sweep of s. 30 general and broad without any reservation or qualification, there is also no reference made elsewhere in the legislation to this common law privilege. The force is expected to set an example of discipline and steadiness. Disobedience to lawful orders would tend to lower the morale and esteem of the force, reduce its efficiency and effectiveness and destroy its probity and discipline, on all of which the force thrives. It is these qualities which the police should possess in order to serve and protect. It stands to reason that s. 30, expressed in very broad terms, is calculated to cover a wide range of circumstances for upholding force discipline. Neither in the language of s. 30 nor in the statutory regime, can one detect any legislative intention to qualify such compelling need for obeying lawful orders. All this reveals a clear intention of the legislature to render the privilege against self-incrimination unavailable. As a matter of construction, there is nothing to attribute to our legislature an intention that s. 30 should be qualified by the principle against self-incrimination. Section 30 cannot be rationally construed to preserve this common law privilege. The Australian Court of Criminal Appeal provided an example of a police superintendent asking his subordinate a question and directing him to answer it. It was decided that the right to silence was necessarily displaced by a statutory provision similar to our s.30, requiring a subordinate police officer to obey a lawful order. See in R. v. Travers [1958] S.R. (N.S.W.) 85. At p. 104, the Court of Criminal Appeal observed: "We would have been inclined to doubt the necessity for any statutory provision which required a member of a body which necessarily must be disciplined, such as the police force, to obey orders given to him by his superior officer." I share their sentiments. But the decision offers little real comfort as our s. 30 and regime need be examined on their own against the setting of the formation of a police force to serve and protect citizens of Hong Kong. Even in the United Kingdom, other than in disciplinary proceedings it would be difficult to imagine in what situation a lawful order may be properly ignored. Hong Kong's sweeping obligation to obey orders, to which there are no exceptions, clearly encapsulates a duty to answer questions as ordered by an investigation senior officer. In my view, the legislative intention to overthrow such a fundamental common law rule is expressed with irresistible clearness, though by necessary implication, in the general and wide terms of s. 30 without any reservation or qualification. This conclusion on the language of s. 30 is fortified by the nature and purpose of the regulatory legislation. In my judgment, s. 30 of our Police Force Ordinance has, by necessary implication, abrogated the common law right against self-incrimination. 68. Finally, I turn to the alleged procedural unfairness. Section 30 does not lay down any pre-conditions before a lawful order must be obeyed. A superior officer is not obliged to inform his subordinate of any suspected disciplinary offence. A superior officer need not even disclose whether his subordinate is under suspicion or what the nature of the offence is. The force may not have at the time the material information, and even if sufficient information is available, the nature of the charges may yet have to be decided. The appellant was not unfairly treated. It has not even been shown that Chief Inspector Tarrant was in a position to supply more information than what he had provided. 69. For the analysis of the Vice-President, I am also not satisfied that in all the circumstances of the case, the matters complained of have given rise to any real danger of bias so that the report of the investigating officer and consequential determination, confirmation and decision are liable to be vitiated. 70. I, too, would dismiss this appeal. Litton, V.-P.: 71. By a majority this appeal is dismissed. We make an order nisi that the appellant is to pay the costs of the appeal.
Representation: Miss Selina Lau (M/S Ricky Ma & Co.) assigned by DLA for the Appellant Mr Nicholas C.H. Bradley, SCC (A.G.'s Chambers) for the Respondent Appeal to Court of Final Appeal by the Applicant. Appeal dismissed. Please refer to the appeal judgment of FACV2/1997. |