Lam Tat Ming v. The Chief Executive of the HKSAR and Another
Read the full judgment text of HCAL 127/2015 on BabelCite. This High Court CFI judgment was delivered on 30 June 2021.
1. The Applicant is applying for judicial review pursuant to leave granted against the decision of the Chief Executive of the HKSAR (“CE”) dated 15 April 2015 in rejecting the Applicant’s Petition dated 23 June 2008 (“CE’s 2 nd Decision”) and the advice of the Pensions Appeal Panel (“Panel”) in the report to the CE dated 26 August 2014 (“Panel’s Advice”) that the Petition be dismissed. The reliefs sought are:
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HCAL 127/2015 [2021] HKCFI 1911 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINSTRATIVE LAW LIST NO 127 OF 2015 ________________
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________________ J U D G M E N T ________________ 1.The Applicant is applying for judicial review pursuant to leave granted against the decision of the Chief Executive of the HKSAR (“CE”) dated 15 April 2015 in rejecting the Applicant’s Petition dated 23 June 2008 (“CE’s 2nd Decision”) and the advice of the Pensions Appeal Panel (“Panel”) in the report to the CE dated 26 August 2014 (“Panel’s Advice”) that the Petition be dismissed. The reliefs sought are:
Background 2.The Applicant was a former police inspector. In May 1997, he was charged with accepting advantage under s. 4 of the Prevention of Bribery Ordinance (Cap. 201). He was acquitted as the evidence of the undercover agent was ruled inadmissible. On appeal, the Court of Final Appeal ordered a retrial. At the retrial, the evidence was still ruled inadmissible and the Applicant was acquitted again. 3.In December 2002, disciplinary proceedings were instituted against the Applicant for charges including association with a triad personality other than in the course of duty and accepting advantages without permission, etc. The disciplinary proceedings were adjourned time and again upon numerous applications, mainly by the Applicant. 4.On 14 January 2008, the Applicant reached the prescribed retirement age of 55 and the disciplinary proceedings were aborted. 5.On 2 June 2008, the Secretary for the Civil Service (“SCS”)refused to grant the Applicant a pension under s. 27(2) of the Pension Benefits Ordinance (Cap. 99) (“PBO”) on the ground that had the disciplinary proceedings been completed, it would have led to the dismissal of the Applicant (“SCS’s Decision”). 6.On 23 June 2008, the Applicant lodged a petition to the Chief Executive of the HKSAR (“CE”) against the SCS’s Decision (“Petition”). On 4 August 2009, the CE dismissed the Petition (CE’s 1st Decision). 7.On 2 November 2009, the Applicant filed an application for leave to apply for judicial review against the SCS’s Decision and the CE’s 1st Decision. Reyes J held in favour of the Applicant and both the SCS’ Decision and the CE’s 1st Decision were quashed. 8.On appeal, the Court of Appeal held that that the protection of fair hearing under Article 10 of the Hong Kong Bill of Rights (“HKBOR”):
applies to petition procedures before the CE regarding pension benefits, and the petition procedures could only comply with Article 10 if an oral hearing were held. 9.The Court of Appeal ruled that:
(see Lam Tat Ming v Chief Executive of the HKSAR [2012] 1 HKLRD 801). 10.The Court of Appeal upheld that part of Reyes J’s decision to quash the CE’s 1st Decision and remitted the Petition to the CE for further consideration with the direction that the CE should consider requiring the Panel to advise him on the Petition, and the Panel should hold an oral hearing with oral evidence and cross-examination. 11.There was no appeal against the Court of Appeal’s judgment. The CE then required the Panel to consider and report to him on the Petition under s. 29A of the PBO. 12.On 4 and 7 July 2014, an oral hearing was conducted by the Panel in which 4 witnesses gave evidence against the Applicant. On 26 August 2014, the Panel submitted a report to the CE with the Panel’s Advice that the Petition be dismissed. 13.On 15 April 2015, the CE informed the Applicant in writing that the Petition was rejected:
Legal Context 14.Eligible civil servants are entitled to pension benefits as of right except as otherwise provided in the Ordinance: s. 5 of the PBO. 15.Amongst other things, an exception is provided under s. 27(2) of the PBO:
16.The designated officer under the PBO is the SCS. 17.Any person aggrieved by a decision of the designated officer under s. 27 may petition to the CE: s. 29A(6) of the PBO. 18.Where the CE receives a petition under s. 29A(6), he may require the Panel to consider and report to him on the petition: s. 29A(7). 19.If the CE do so require, he shall have regard to the report of the Panel before making a determination: s. 29A(7)(b). The CE shall then determine the petition and may confirm, vary or reverse the decision: s. 29A(8). Oral Hearing 20.Pursuant to the requirement of the CE, the Panel conducted an oral hearing on 4 and 7 July 2014. The oral hearing was conducted in Chinese. 21.The Applicant faced many disciplinary charges. For all intents and purposes, the only charge relevant to the present proceedings (“Charge”) is:
22.The Police General Orders (“PGO”) PGO 6-02(2) appeared in the 1992 and 1994 versions. 23.PGO-6-02(2) (1992 version) provides that:
24.PGO-6-02(2) (1994 version) provides that:
25.The 1992 and 1994 versions differ only as to visiting places of doubtful or undesirable reputation, which is not relevant to the Charge. The relevant parts relating to the Charge are identical in both versions. 26.Four witness were called against the Applicant. By consent, all witness statements stood as evidence in chief. The witnesses were then cross-examined by the Applicant and his representative. The Applicant’s records of interview with the ICAC were also admitted before the Panel. 27.Witness 1 was Ngau Wing as referred to in the Charge. Witness 1’s evidence was that he had been a triad member of Luen Ying Society since 1963, and he was active in North Point, Shau Kei Wan and Chai Wan, involved in illegal gambling and loan sharking, etc. He was convicted of the offence of “being a member of a triad society” in the 1970s. He came to know the Applicant in 1982 when the Applicant was an Inspector in the Shau Kei Wan and Chai Wan District. Witness 1 was then involved in loan sharking and selling obscene articles, and the Applicant had been using his position to offer protection to the Witness 1 for monetary reward. Witness 1 said he had given $450,000 to the Applicant between 1992 and 1994 in return for assisting Witness 1 in monopolizing the renovation project in a Siu Sai Wan residential development. 28.Witness 1 said he had dealings with other triad members and anti-triad police officers between 1980 to 1994. 29.Witness 2 was an undercover ICAC agent. The criminal evidence was not relied on in the Oral Hearing before the Panel, except the traffic record of the trip of the Applicant and Witness 1 to Macau. 30.Witness 3 and Witness 4 gave evidence of the dealings between the Applicant and Witness 1 involving money other than in the course of duty. 31.The Applicant admitted in his record of interview that he knew the Applicant back in about 1982 or 1984 when he was posted to Shau Kei Wan. He said Witness 1 was not a decent person, and should be one going about town in dubious ways [1]. Witness 1 had been to the mahjong club run by the Applicant’s wife to collect protection money. Panel’s Advice 32.The Panel’s Advice was submitted to the CE in a report dated 26 August 2014. The Panel Advice was written in Chinese, and translated into English. 33.The excerpt of relevant parts of the Panel’s Advice are as follows:
34.Mr Shum, for the Applicant, submitted that [17] of the Panel’s advice was incomprehensible. The original signed Chinese version reads:
35.Hence, the English translation of [17] meant the opposite of the Chinese original. In any case, the Chinese version is in context. Grounds of Judicial Review 36.The grounds for judicial review are:
37.Ground (3) was abandoned by Mr Shum at the hearing. Initially, Mr Shum said Ground (3) was preserved as a matter of law. When asked whether Ground (3) would still be alive if the Court were not with him on Grounds (1) and (2), Mr Shum said Ground (3) was abandoned and there was no need to deal with it in this case. 38.In any case, it was stated in the Amended Form 86 that if the CE adopted the Panel’s Advice without giving any or adequate reasons, his decision would likewise be faulted if the Panel’s Advice were faulted. 39.The following points have been made clear by Mr Shum at the hearing:
Discussions 40.It is trite that a judicial review does not operate by way of an appeal or rehearing, but to see whether the tribunal had made findings supported or unsupported by probative evidence. 41.In Mahon v Air New Zealand [1984] AC 808, Lord Diplock said at 820G to 821B that:
42.Mr Shum submitted that the Grounds of judicial review are irrespective of the evidence received by the Panel at the oral hearing. The Grounds only relate to the findings and decision of the Panel as stated in the Panel’s Advice, which is the only document which the Court should be looking at to discern the decision process of the Panel and to decide if that process was proper or not. By including the transcripts of the hearing in the judicial review, the Respondents are asking the Court to go through detailed evidence presented and invite the Court to make findings which the Panel did not make, or to infer that the Panel must have taken certain matters into account, and that is the wrong approach. The Court is only to review the process of the decision of the Panel and should not replace the Panel’s role and usurp its functions. 43.I agree that it is not the task of the Court on judicial review to substitute its finding or decision for the decision maker, but to examine whether decision to make the finding is based upon some material that tends logically to show the existence of facts consistent with the findings and that the reasoning supportive of the findings. However, in order to examine the findings and reasoning of the decision maker, the Court must look at the factual context of the case. 44.I shall now consider the Grounds of judicial review by the Applicant. Ground 1 45.Before I turn to the finding of the Panel, I shall first refer to the sub-ground on the burden and standard of proof wrapped up in Ground 1. 46.It is well established that the standard of proof in disciplinary proceedings is a civil standard but to be commensurate with the seriousness of the charge, i.e. “a preponderance of probability” (see Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117, [111]–[116]):
47.Mr Shum submitted that the Panel had never guided itself as to the burden and standard of proof in the Panel’s Advice. Further, Mr Shum referred to the following remarks in the Panel’s Advice:
and submitted that the Panel had proceeded or could objectively be seen to have proceeded on the basis that the Applicant bore the burden of disproving the serious allegations. 48.In response, Ms Lam, for the 1st Respondent submitted that the Panel Advice had specifically referred to the Guide on Procedures for Oral Hearing to be Conducted by the Panel (“Guide”) as setting out the roles of the Panel in oral hearing and the relevant procedures in [2]. The applicable standard of proof and principles for the assessment of evidence were set out in [23] and [24] of the Guide:
49.Ms Tsang, for the 2nd Respondent made a similar point. 50.Mr Shum submitted that [2] of the Panel’s Advice only stated that the Guide had been served. There was no reference to any substantive legal principles on the burden and standard of proof, nor indication that the Panel had taken those principles into account. 51.In Rowse v Secretary for Civil Service [2008] 5 HKLRD 217, Hartmann J (as he then was) had this to say at [72]:
52.Mr Shum accepted that the lack of any reference to the burden and standard of proof by itself might not be enough for the judicial review. It was not a standalone case, but as a backdrop to the reversal of burden of proof point as shown in [14], [15] and [16] of the Panel’s Advice. 53.I shall first consider whether there was a reversal of burden of proof by the tribunal. 54.The Panel has been specifically tasked to resolve questions of facts by conducting oral hearing and cross-examination. As part of the fact finding process, the tribunal of facts must frame the issues in question and separate the agreed and disputed facts. 55.Ms Tsang pointed out that towards the end of the cross- examination, when the representative for the Applicant indicated that he had no other questions, the Legal Adviser to the Panel reminded the Applicant of the allegations against him, and invited his representative to decide if he needed to conduct further cross-examination. The Applicant’s representative confirmed that he had no further questions. 56.As I see it, what the Panel has referred to as undenied facts and/or unchallenged evidence by the Applicant in [14], [15] and [16] is simply a reminder of the undisputed facts and it went on to make positive findings. I do not see any reversal of burden of proof. 57.As to the standard of proof, whether the evidence was cogent enough as to be probative of the serious allegations in the Charge must again be seen in the context of the evidence given against the Applicant. 58.Witness 1 has come out and given blatant evidence of his own triad and illegal activities and association with the Applicant (see below). 59.Witness 1 was cross-examined and his credibility was vehemently challenged before the Panel, particularly the evidence that he sought the Applicant to harbour his dealings for reward. His evidence was direct and compelling, and the only issue was whether he was credible. 60.Notwithstanding Witness 1 could not remember some of the facts, the Panel found him unshaken in cross-examination and was truthful and believable. Cross-examination is a powerful tool in our legal system and findings by the tribunal of facts should not easily be disturbed by a Court exercising supervisory jurisdiction unless it is illogical or absurd. Bearing this in mind, I turn to consider the Panel’s finding on the Charge. 61.The same charge has been considered by the Court of Appeal in question Yu Yau Tak v Commissioner of Police & another [2001] 2 HKC 627. Woo JA (as his Lordship then was) held at 637I–638D:
62.And at 639A–E:
63.Mr Shum submitted that the elements of the Charge are: (1) the police officer is associated the alleged person; (2) the alleged person is generally reputed to be a criminal or triad personality; and (3) the police officer believes such reputation of the alleged person (see Cheng Wai Kit v Commissioner of Police (unrep, HCMP 3208/1996, 24 April 1997) per Sears J at pp. 4–5; and Yu Yau Tak v Commissioner of Police op cit 637I–639I & 643F–645B.) 64.The Panel’s finding as per the Panel’s Advice was that:
65.Mr Shum submitted that the Panel did not find that the Applicant knew Witness 1 had triad background, or that Witness 1 was a generally reputed triad member, instead, it only held that the Applicant “should have known” that Witness 1 was a triad member. 66.As mentioned before, the finding of the Panel must be seen in the context of the evidence. The Panel’s Advice set out the evidence of alleged covering up of Witness 1’s illegal activities in the context of the association with a triad member with sleazy reputation other than for official purposes [12]; and that Witness 1 had given the total sum of $450,000 to the Applicant from 1992 to 1994 [15]. The various meetings between the Applicant and Witness 1 were not social meetings [16], but meeting involving financial benefits not for the purpose of the Applicant’s official duties [15]. When the Panel found that the Petitioner did associate with a triad member with sleazy reputation [17], it goes without saying that it was a finding that Witness 1 had such sleazy reputation and thus a reputed Triad member, which was well supported by the evidence that Witness 1 was an active triad member. And when the Panel found that the Applicant, being an officer with years of frontline experience, should have known that Witness 1 was an active triad member in [14], the finding of knowledge and belief on the part of the Applicant must be understood in the context of the nature of association and dealings between him and Witness 1 as found by the Panel. 67.The Panel repeatedly referred to that the association between the Applicant and Witness was not merely social, which was the case of Yu Yau Tak. The instant case was in the context of an active Triad member seeking auspices from a serving police officer in the same district of their respective operations. As said above, Witness 1 was found by the Panel to be credible and believable, which I do not see any cause to interfere with, and as such his evidence was compelling and commensurate with the requisite proof of the Charge in accordance with the consideration laid down in Yu Yau Tak. Ground 2 68.Towards the end of the Panel’s Advice, it was stated:
69.Mr Shum submitted that the Panel was required to make its own finding of facts based on the evidence adduced. However, the Panel relied on extraneous materials to arrive at this decision. At [18] of the Panel’s Advice, the Panel stated that it had considered the “CE’s previous consideration of all the Petitioner’s stated reasons and the Respondent’s response [for details please refer to Annex 7]”. 70.Annex 7 contained the representations made by the Civil Service Bureau (“CSB”) which included the following comments:
71.Mr Shum submitted that the above comments from the CSB in Annex 7 were hearsay evidence and not subjected to cross-examination. The Applicant was deprived of his right to a fair hearing as the Panel relied upon these extraneous materials to reach its decision in the Panel’s Advice. 72.Mr Shum submitted that the Panel also wrongly took into account the CE’s 1st Decision which in turn relied upon the SCS’s response (worse still set aside by the CA). The Panel’s Advice relied upon these extraneous materials and the CE’s 1st Decision in reaching its decision in and the Panel’s Advice was therefore tainted. 73.Further, having relied upon the CE’s 1st Decision and comments of the SCS, the Panel failed to make its own finding of facts based on the evidence properly adduced and tested by cross-examination. The Panel’s Advice had in effect rendered the oral hearing meaningless as it adopted exactly the same materials in the previous process which had already been held by the Court of Appeal to be Wednesbury unreasonable. 74.Ms Lam submitted that it is wrong for the Applicants to contend that the Panel had relied on “extraneous materials” which were based on hearsay evidence and not subjected to cross-examination. 75.Ms Lam submitted that Annex 7 was the tabulated summary of the Applicant’s representations in the Petition and the SCS’s comments thereon. Annex 7 represented nothing more than a summary of the issues and submissions that had been advanced previously by the Applicant and SCS. It is not hearsay evidence at all. The Panel’s decision was made after the hearing of oral evidence with fresh evaluation. 76.Ms Lam referred to [21] of the Guide which provided that the Panel “may enquire into any matter and admit and take into account any evidence or information which it considers relevant, and is not bound by the rules of evidence”. 77.Ms Lam pointed out that Annex 7 had been included in SCS’s submissions to the Panel and the same was provided to the Applicant by the Panel, and the Applicant had been informed that he was entitled to respond to SCS’s submissions in writing and to provide documentary and other evidence to the Panel. 78.The Applicant never challenged the inclusion of Annex 7 in the hearing or sought to have Annex 7 excluded on the basis that it was irrelevant. By a letter dated 8 November 2013, the Applicant’s legal representative confirmed that they had no further submissions to make in response to SCS’s submissions (including Annex 7). 79.I agree that the rules of evidence in civil or criminal litigation form no part of the rules of natural justice: see Mahon v Air New Zealand ob. cit. at [41] above. It remains that the first principle in evidence of relevance will prevail. 80.Absent a code of compulsory considerations, what is and is not a relevant consideration, and the weight to be attached, is for the decision maker, not the Court, to decide: Sabir Mohammed and Another v Permanent Secretary for Security (unrep, HCAL 114/2015, 27 January 2017) per Au J at [41]. 81.Ms Lam pointed out that Annex 7 contained the submissions of the Applicant and the response of the SCS, and could not be said on the facts of this case that no reasonable Panel would have taken into account. 82.Both Ms Lam and Ms Tsang submitted that the reference to the CE’s 1st Decision came only after the Panel’s conclusion with an independent fact finding process, and it was illogical and unreasonable to say the fact finding process was tainted by CE’s 1st Decision and Annex 7. 83.As I see it, the CE’s 1st Decision was a step taken in the same Petition and not something foreign to the Panel. The CE’s 1st Decision, not dissimilar to the CE’s 2nd Decision, dismissed the Petition without giving substantive reasons. Hence, by referring to the consideration by the CE in the CE’s 1st Decision, the Panel was in fact referring to the issues raised by the Applicant and the responses by the SCS in Annex 7, which are the very issues framed by the same parties before the Panel. 84.Moreover, as apparent in the Panel’s Advice, the reference to the CE’s 1st Decision at [18] came after the finding on the Charge in [17], The finding in [17] had been found to be reasonable and in accordance with the law as analysed above. Hence, it cannot be said that the Panel had not independently considered the matter. 85.Having made its decision, the reference by the Panel to the CE’s 1st Decision was not more than in passing and did not detract from the otherwise legality of the Panel’s Advice. 86.Even if the reference to the CE’s 1st Decision were irrelevant, where the decision maker would have reached the same decision independent of any irrelevant consideration, the Court would not regard it as being unlawful (see Capital Rich Development Ltd and Another v Town Planning Board [2007] 2 HKLRD 155 per Cheung JA at [70]–[77]. 87.In the premises, the Panel did not err in law, nor frustrate the Applicant’s procedural legitimate expectation or violate the Applicant’s Article 10 of the HKBOR rights, nor Wednesbury unreasonable. Conclusion 88.For the reasons stated above, the application for judicial review by the Applicant is dismissed. 89.The parties may make submissions on costs, if any. 90.Lastly, I wish to thank Mr Shum, Ms Lam and Ms Tsang for their helpful submissions.
Mr Erik Shum, instructed by Victor Yeung & Co, assigned by the Director of Legal Aid for the applicant Ms Catrina Lam, instructed by Department of Justice, for the 1st respondent Ms Olivia Tsang, instructed by Lo & Lo, for the 2nd respondent [1] 原文：「唔係一個正經人」…「應該係出來係蠱蠱惑惑啊，出來蒲嗰隻」 [2] 原文：「基於以上的事實裁斷，上訴委員會信納呈請人確實於違紀控罪所涉及的期間，並非為執行職務而與一名可疑或有不良聲譽的三合會份子來往。」 | |||||||||||||||||||||||||||
Cases cited in this judgment