Chan Kung Shun and Others v. Commissioner of Police

CACV 644, 645 & 646/2020
(Heard together)

[2022] HKCA 1359

CACV 644/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 644 OF 2020

(ON APPEAL FROM HCAL NO 2703 OF 2019)

________________________

________________________

AND

CACV 645/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 645 OF 2020

(ON APPEAL FROM HCAL NO 2915 OF 2019)

________________________

________________________

AND

CACV 646/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 646 OF 2020

(ON APPEAL FROM HCAL NO 2671 OF 2019)

________________________

________________________

(Heard together)

Before:  Hon Poon CJHC and Kwan VP in Court

Dates of Written Submissions: 24 January 2022, 14 and 21 February 2022

Date of Judgment:  16 September 2022

____________________

J U D G M E N T

____________________

The Court:

A.  Introduction

1.The applications we are concerned with are to adduce new evidence on appeal by the Commissioner of Police (“the Commissioner”) and the Secretary for Justice, the respondents in three applications for judicial review (“the respondents”).  They have brought an appeal in each of the proceedings against the judgment of Chow J (as he then was) on 19 November 2020 (“the Judgment”)^[1]. The appeals in CACV 644, 645 and 646/2020 will be heard together, and no dates for hearing have yet been fixed.

2.By the Judgment, the judge granted leave to apply for judicial review in HCAL 2671/2019, HCAL 2703/2019 and HCAL 2915/2019, and made the following declaration in those applications:

“The failure of the Commissioner to establish and maintain an effective system to ensure that every police officer deployed in carrying out non-covert duties in Operation TIDERIDER wears and prominently displays an identification number or mark which is unique to that officer violates Article 3 of the Hong Kong Bill of Rights[‘BOR 3’]”^[2].

3.In HCAL 2915/2019, the judge granted this further declaration:

“The Government of the HKSAR is under a duty, pursuant to [BOR 3], to establish and maintain an independent mechanism capable of conducting effective investigation into complaints of suspected ill-treatment by police officers in contravention of [BOR 3], and that the existing complaints mechanism involving the Complaints Against the Police Office [‘CAPO’], with oversight by the Independent Police Complaints Council [‘IPCC’], is inadequate to discharge this obligation.”

4.The three appeals seek to set aside the above declarations.  The present applications in each appeal to adduce new evidence are concerned with the first declaration, namely the insignia policies of police officers serving in operations dealing with the public order events in 2019 to 2020 (“Operation TIDERIDER”), including anti-riot officers (“AR officers”) and those in Special Tactical Contingent (“STC officers”).

5.As the basis of these applications to adduce new evidence is largely the same, the applications will be considered together.  Having read the evidence filed in the applications and the submissions of counsel of all parties, we consider it appropriate to determine the applications on paper without a hearing.

B.  Background

6.The applicant in HCAL 2671/2019 (CACV 646/2020) participated in a public order event which occurred on 12 June 2019 in the vicinity of the Central Government Offices and the Legislative Council Complex, in the course of which he suffered injuries to his right eye, having apparently been shot by an object coming from the direction of a group of STC officers.  He filed a Form 86 on 12 September 2019 challenging the alleged decisions of the Commissioner “made on or about 12 June 2019 and thereafter that during police operations from or about 12 June 2019 and thereafter [STC officers] were not to, or need not, display their unique identification numbers [‘UI Numbers’] or ranks on their uniforms.”

7.The applicants in HCAL 2703/2019 (CACV 644/2020) are three Hong Kong permanent residents who suffered injuries allegedly caused by AR officers or STC officers on different occasions in June, July and August 2019.  As the officers were all helmeted or masked and did not display their UI Numbers or any other distinctive insignia on their uniforms, the applicants were unable to make specific complaints to CAPO or pursue civil claims against those officers.  They filed their Form 86 on 16 September 2019 to challenge “the systemic and continuous failure of [AR officers] and [STC officers] to display identification numbers (or any other distinctive insignia) on their uniforms when discharging their constabulary duties”.

8.The applicant in HCAL 2915/2019 (CACV 645/2020) is the Hong Kong Journalists Association (“HKJA”).  In its application, the HKJA challenges inter alia “the failure of the Commissioner to require or ensure that all uniformed police officers, and plainclothes police officers exercising any public power, wear clearly visible individual identification in the course of public order events on and after 12 June 2019”.

9.New insignia policies were introduced by the police at the time of the public order events and they are as follows: (1) since 28 June 2019, STC officers were given a team call-sign and an additional sticker with a unique alphabet for display on the helmet; together with the team call-sign, they form what is referred to as the “alphanumeric code” (“Alpha ID”), which is attached to the back of the officer’s helmet; (2) since 27 November 2019, uniform branch and plainclothes officers (including AR officers) in Operation TIDERIDER were issued a unique operational call-sign (“Call-Sign”) printed on a blue standard security card; the Call-Sign is based on a combination of information distinctive to each officer and the blue card is to be placed in a plastic sleeve on the approved police vest/jacket and conspicuously displayed.

10.The judge held that the current practice of the Commissioner requiring police officers (other than STC officers) to wear and display the Call-Signs and STC officers to wear and display the Alpha IDs when deployed in Operation TIDERIDER fails to meet the standard of effectiveness of investigation required under the procedural limb of BOR 3. His ruling was based on inter alia the following matters set out in §99 of the Judgment:

“(1) A Call-Sign is not unique to the police officer to whom it has been assigned (as in the case of an UI Number). After an officer who has been assigned a particular Call-Sign is transferred out of his platoon / team, the same Call-Sign is recycled and allocated to another officer taking up his position in the platoon / team. Moreover, the evidence before the court discloses instances where the same Call-Sign was worn and displayed by multiple officers on the same occasion, and also instances where police officers simply did not wear and display the Call-Signs, or used other objects to hide them from sight. While these may be said to be individual instances of failure of the system, there is absence of evidence that any adequate measure has been put in place by the Commissioner to ensure that the Call-Signs are properly worn and displayed by police officers deployed in Operation TIDERIDER, and to take action against officers who have failed to properly wear and display the Call-Signs.

(2) The Alpha ID system also suffers from the same deficiency that an Alpha ID is not unique to the police officer to whom it has been assigned (as in the case of an UI Number). The fact that the Alpha ID is only attached to the back of a STC officer’s helmet also substantially impairs its effectiveness as a means of identification. There were also instances where STC officers belonging to the same team and deployed at the same time and location did not attach the assigned letters to their helmets and only the team call sign was displayed. There is likewise an absence of evidence that any adequate measure has been put in place by the Commissioner to ensure that the Alpha IDs are properly attached to the helmets of STC officers deployed in Operation TIDERIDER, and to take action against officers who have failed to properly wear and display the Alpha IDs.” (Italics supplied)

11.The applications to adduce new evidence are focused on the evidence and the lack of evidence as italicised above, showing occasions of non-compliance by police officers and the absence of evidence that adequate measures have been put in place by the Commissioner to ensure that Call-Signs and Alpha IDs were properly worn and displayed and to take action against non-compliant officers.

12.The relevant grounds of appeal are as follows:

(1)  The judge’s ruling was based on mere assertion or supposed existence of evidence of alleged isolated instances where the Call-Signs or Alpha IDs were not displayed properly or hidden from sight or alleged to have been worn by multiple officers on the same occasion, and “is not a proper basis for holding that the current system fails on a systemic level” to meet the standard of effectiveness of investigation required under BOR 3^[3].

(2)  Where the applicants seek to establish a breach of BOR 3 “on a systemic level”, it is insufficient to point to allegations of isolated instances where the system was alleged not to have been followed.  The judge erred in taking into account the operational aspect of the BOR 3 procedural duty when the applicants “only complained about the systemic aspect of the duty”^[4].

(3)  The judge had directed that he would not resolve underlying disputes of facts and would only address issues of principle^[5]. On that basis, the respondents did not file evidence or full evidence to address the factual complaints by the applicants including allegations regarding the isolated instances that Call-Signs or Alpha IDs were not properly displayed.  It was unfair in the circumstances for the judge to find there were instances where the Call-Signs or Alpha IDs were not properly displayed, or instances of failure of the system^[6]. The respondents had been deprived of the opportunity to file evidence (i) to refute or explain the alleged isolated instances of operational failures on the display of Call-Signs and Alpha IDs; (ii) on the measures that had been put in place by the Commissioner to ensure that Call-Signs and Alpha IDs were properly displayed in Operation TIDERIDER; and/or (iii) on the actions taken against officers who have been shown to have failed to properly wear and display the Call-Signs or Alpha IDs in the alleged isolated instances^[7].

(4)  The judge failed to have regard to the fact that in investigating a complaint, the investigators would adopt a holistic approach and would take into consideration other methods of identification of police officers by CAPO set out in the evidence as summarised in the Judgment^[8]. Bearing in mind the wide margin of discretion accorded to the Commissioner on the relevant official investigation measures, the judge’s conclusion is contrary to the finding he made^[9] that the system adopted was “no more than the sort of methods and inquiries that one would reasonably expect would be used or made by any conscientious body tasked with the duty of investigating complaints against police officers”^[10].

C.  The applications to adduce new evidence

13.The respondents filed the notices of appeal on 17 December 2020.  Their summonses to adduce new evidence were issued seven months later on 30 July 2021 with the affirmation in support of Lam Cheuk Lun (“Lam 1”).  After the applicants filed their affirmations in opposition in October and November 2021, the respondents issued a summons on 26 November 2021 with another supporting affirmation of Lam Cheuk Lun (“Lam 2”), seeking leave to amend their summons in July 2021 to adduce an additional affirmation as new evidence on appeal.

14.As no objection has been raised by any of the applicants regarding the amendment summons in November 2021, we give leave to the respondents to amend the July summons as sought and make an order in terms of the amendment summons in each appeal save that costs of the amendment be in the cause of the application in the July summons.

15.In these applications, the respondents seek leave to adduce six affirmations as new evidence and they concern two main areas.

16.The first area relates to measures to ensure proper implementation of the insignia policies that the judge said evidence was lacking (“Implementation Evidence”) and comprises:

(1)  the affirmation of Wong Wai Shun (“Wong 1”), which addresses the implementation of the Call-Sign system, including (i) its promulgation among the officers; (ii) rectification of issues identified; and (iii) clarifications to the alleged incidents of defective implementation on which the applicants rely;

(2)  the affirmation of Chan Kin Kwok (“Chan 1”), which addresses the implementation of the Alpha ID system on the aspects as identified in (1) above;

(3)  the affirmation of Cheung Wai Wah (“Cheung 1”), which addresses the implementation of the Call-Sign system by the Regional Response Contingent (“RRC”) of Kowloon West (one of the five RRCs mobilised for Operation TIDERIDER) as an example of promulgation of the policies from the headquarters to regional teams; and

(4)  the affirmation of Tam Wing Leung (“Tam 1”), which addresses the occasion of non-compliance of police officers who did not belong to any RRC but were deployed to assist in Harbour City Shopping Centre, Tsim Sha Tsui, on 24 December 2019 and were issued with identical blue cards as Call-Signs and the follow-up actions taken after the media made inquiries.

17.The second area relates to investigation carried out by CAPO regarding the public order events since 9 June 2019 (“CAPO Evidence”) and comprises the two affirmations of Lam Chi Ping Kenneth (“K Lam 1” and “K Lam 2”).  K Lam 1 contains (i) updated statistics on the number of complaints received; (ii) statistics on complaints in which the relevant officer was identified, where the complainant was unable to provide the Call-Sign and where the complainant was able to provide the Call-Sign; (iii) information mirroring (ii) in relation to Alpha IDs.  K Lam 2 contains further updated figures on (ii) and (iii).

D.  Applicable principles

18.Order 59 rule 10(2) of the Rules of the High Court provides that the Court of Appeal shall have power to receive further evidence on questions of fact but no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.

19.The conditions for admission of new evidence on appeal are well established, see Ladd v Marshall [1954] 1 WLR 1489 at 1491.  Further evidence is admissible on appeal only where all three conditions are satisfied:

(1)  such evidence could not have been obtained for use at the trial with reasonable diligence (“Condition 1”);

(2)  the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive (“Condition 2”); and

(3)  the evidence must be such as is presumably to be believed, in other words it must be apparently credible though it need not be incontrovertible (“Condition 3”).

20.In Dr Kwong Kwok Hay v Medical Council of Hong Kong (No 2) [2007] 4 HKC 446 at §§10 to 11, the Court of Appeal held that whilst the Ladd v Marshall principles apply in public law, “some flexibility has been allowed where the ‘interests of justice’ so require” and that those principles “remain the starting point, but there is a discretion to depart from them in exceptional circumstances”^[11]. The following points were emphasised: (1) the circumstances must be wholly exceptional before this wider discretion to depart from the Ladd v Marshall principles is exercised; (2) a strong public interest will need to be demonstrated; and (3) the burden is on the party seeking the exercise of discretion to show cogently with details that exceptional circumstances exist, a mere reference to the public interest will not suffice.

21.The summonses for adducing further evidence were issued more than seven months after the filing of the notices of appeal. Although some of the applicants have complained about the delay^[12], and the court does have discretion to dismiss the application on the ground of lateness alone^[13], in light of the impact of the Covid-19 pandemic on government operations at various times^[14], we would decline to do so and would focus on assessing the merits of these applications based on the principles as mentioned above.

E.  Implementation Evidence

E1.  Condition 1

22.Mr Benjamin Yu, SC (who did not appear below) submitted on behalf of the respondents^[15] that the Implementation Evidence could not have been adduced before the judge for these reasons.

23.First, when the respondents and their legal team prepared the evidence in opposition filed in January 2020, it was “not apparent” to them that issues of implementation were material complaints relied upon in the applicants’ challenges.  Their understanding of the applicants’ case according to the Forms 86 was that the systems of Call-Sign and Alpha ID themselves were in breach of BOR 3, because the use of such insignia, as opposed to UI Numbers and warrant cards, could not enable effective investigation of potential BOR 3 breaches.  The applicants have brought a “systemic challenge” against the Call-Sign and Alpha ID systems.

24.Although in one of the Forms 86 before the judge (HCAL 1747/2019)^[16] it was alleged that there were serious doubts whether the new Alpha ID system for STC officers was always followed and reference was made to media reports that STC officers had refused or failed to display their Alpha IDs or UI Numbers, these allegations were immaterial when read in the context of how the challenge was framed, which was focused on why the dispensation of UI Numbers was in breach of the Police General Orders^[17].  Issues of implementation were not raised in the other Forms 86 or the supporting evidence of the other applications.

25.Second, the belief that it was not necessary to address the implementation problems in the Commissioner’s evidence was reinforced by the indications and directions given by the judge in 2019 to determine the applications on a “principle basis” without having to resolve factual disputes in hundreds of incidents giving rise to the complaints. Reference was made to what the judge said at the directions hearing on 30 October 2019 (for HCAL 2915/2019, brought by the HKJA) and the directions he gave by letter dated 14 November 2019 for all five applications for leave to seek judicial review.

26.The pertinent parts of what the judge said at the directions hearing on 30 October 2019 read as follows:

“And it seems to be accepted that insofar as the second complaint^[18] is concerned, it could be determined without having to determine -- without the court having to resolve the underlying disputes giving rise to the first complaint. In other words, whether on a -- well, we are now talking about hundreds of incidents -- whether on a particular date on any particular incident whether something has occurred, whether, for example, that amounts to an obstruction or failure to facilitate and then, of course, presumably, it’s to say what they have done is lawful, etc. So there will be all sorts of factual disputes, but the second complaint seems to me to be capable of resolution at least on a principle basis.”^[19]

“But the real problem I have got apart from these management -- case management issues is how the first complaint can be dealt with. Now, at the moment if one did ask what are the facts which would be relevant, it cannot be disputed, of course, that there are a large number of events occurring in Hong Kong, that accusations have been raised against the police by journalists, by the public, there can be no doubt about that … What would be capable -- what would be in dispute, on reading Mr Chan’s skeleton argument -- and that’s not surprising -- is that they wouldn’t accept -- they would accept, of course, that there are incidents, but they would not accept that they have, for example, used excessive force. And in order to determine whether excessive force has been used, one has really to look into the facts, well, what actually occurred, whether what has been done is a proportional reasonable response, etc.”^[20]

“And if we were then to have to deal with all these individual incidents, that is simply not possible. Well, it’s possible if one has got a few years’ time to call witnesses on each and every incident and then try to determine as a matter of fact what happens on each day … So it seems to me that one possible way out would be for the court to determine, again, on a principle basis, the various propositions that has been put forward in a Form 86. In particular, I have in mind the propositions referred to in paragraph 5 of the Form 86 where it is said the [HKJA] invokes the court’s jurisdiction and then set out a series of propositions. For example, the police is under a constitutional public law duty to facilitate^[21].”^[22]

“Yes, well, once you have got the determination on matters of principle, if in individual circumstances you say someone has been unlawfully treated or inappropriately treated, it may be that that would give rise to a private cause of action and then you litigate in the usual way. But if all that the [HKJA] wants is a set of principles, maybe, well, this court would, of course, try as much as possible to formulate those principles and if anyone is unhappy they go to the Court of Appeal in the usual way to try to get a better set of principles from the High Court.”^[23]

27.In the letter giving directions to all parties dated 14 November 2019, it was stated:

“The court should make it clear, however, that judicial review cannot be used for the purpose of resolving substantial disputes of primary facts, and thus this court will only deal with issues of principle, but will not determine whether the individual journalists were victims of alleged ill-treatment by police officers. Such allegations ought to be resolved, if desired, in a writ action.

… A direction for a rolled-up hearing has already expedited the matter somewhat, but it would not be fair to the putative respondents to shorten the time that they would otherwise be allowed under the rules to file evidence in circumstances where the background facts are relevant to a proper resolution of the issues, even though the court will not be in a position to resolve substantial disputes of primary facts.”

28.It was contended that it was “not apparent” to the respondents’ legal team that the judge would make findings of fact against the respondents in connection to the implementation issues of the insignia policies.  Whilst the judge had only referred to incidents of alleged use of excessive force by the police and alleged ill-treatment of the public and the press in the public order events and did not allude to the implementation issues, the respondents and their legal team took the view that the same logic must apply to alleged incidents of non-compliance with the insignia policies and it would also be inappropriate and impracticable to resolve disputes of fact concerning allegations of non-compliance.

29.Third, it was only in the reply evidence that the applicants raised the implementation issues and it was such evidence that the judge relied on in making the ruling in §99 of the Judgment.  It was submitted that such evidence was irrelevant and immaterial to the pleaded case in the Forms 86.  If the applicants were to be allowed to complain about the implementation of the Call-Sign and Alpha ID systems in these proceedings, as a matter of fairness the respondents should be given a fair opportunity to respond.

30.Fourth, the respondents have made clear their position in their evidence in opposition and the skeleton arguments of their counsel placed before the judge at the rolled-up hearing in June 2020.  Notwithstanding that, and despite the earlier indications and directions in 2019, the judge merely recorded the respondents’ position in the Judgment at §89 and, taking the view at §90 that this would be answered by the fact that BOR 3 encompassed both a systemic duty and an operational duty, proceeded to make findings of fact at §99 and did not ask the respondents’ counsel any questions on their position in the skeleton arguments. The respondents complained that this is unfair to them in light of the pleaded case and the procedural history.

31.In respect of the evidence in opposition, reference was made to the affirmation of Lee Kenneth Yuet Lun filed on 24 January 2020 (“Lee’s Affirmation”), in which he referred to the judge’s directions on 14 November 2019 that the application for judicial review cannot be used to resolve substantial disputes of primary facts and the court will only deal with issues of principle.  He further deposed that the issue of principle raised by the applicants is whether the impugned decision or failure to act “would hinder the making of complaints and/or effective investigation such that the police officers complained of cannot be held accountable, therefore constituting a failure to fulfill the HK Police’s obligations under BOR 3/ICCPR 7”.  He only made a brief mention that “if there is any case of non-compliance with the relevant instructions discussed above, the supervising officer(s) may consider taking follow-up actions including but not limited to disciplinary actions against the suspected transgressors”^[24] (emphasis supplied)^[25].

32.As for the skeleton arguments of the respondents’ counsel before the judge, they emphasised at the outset that the hearing was not intended to resolve underlying disputes of facts but should address issues of principle.  Reference was also made to the following parts of the respondents’ submissions:

“144. The corollary is that this Court is concerned with the Policies as promulgated but not about whether there is any identifiable or isolated instances of mistakes or operational failures in the implementation of the Policies.

145. This is reinforced by the fact that the [applicants] (in 1747, 1753, 2671 and 2703) seek, inter alia, an order of mandamus that STC/AR police officers be required to wear UI Numbers, ranks or other distinctive insignia in place of the Policies. It is not their complaint that there is a valid system in place, but implementation has been aberrant. Rather, the complaint is that the Policies are unlawful and defective.

146. Therefore the [applicants] cannot rely on isolated instances of supposed failure to implement the Policies (e.g. STC officer’s alleged refusal to display their Alpha IDs … and the display of Alpha IDs in the wrong format … to ground their systemic challenge. The [applicants] have persisted with this line of attack in their reply evidence and submissions … [The respondents] maintain that these are irrelevant to the systemic challenge.

147. More specifically on the HKJA’s challenge, given there is not going to be any factual finding, the question of whether there were instances that police officers failed to wear ‘clearly visible individual identifications’ (whether in the form of Alpha IDs or call-sign cards), and whether the [Commissioner] failed in [his] duty to ensure his officers wear such ‘clearly visible individual identification’, cannot be resolved here and hence the HKJA cannot possibly succeed in obtaining a declaration to that effect …”

33.The Implementation Evidence sought to be adduced is available to the respondents all along before the rolled-up hearing in June 2020 but was not adduced because it did not appear to the respondents and their legal team that such evidence was material or relevant for various reasons.  To satisfy Condition 1, it would need to be demonstrated that such evidence could not have been adduced at the hearing with reasonable diligence.  For the reasons given below, we do not think this condition has been satisfied.

34.We have set out in detail Mr Yu’s arguments why the Implementation Evidence has been regarded as immaterial or irrelevant such that the respondents decided not to adduce such evidence, albeit available, before the judge.  Indeed, the contention that such evidence is immaterial or irrelevant and does not support the judge’s holding forms part of the grounds of appeal as mentioned earlier^[26].

35.What must be acknowledged is that there are clearly arguments to the contrary why such evidence may not be treated as immaterial or irrelevant.  It boils down to a matter of judgment for the respondents and their legal advisers as to what evidence they would consider appropriate to adduce in support of the lawfulness of the new systems of Call-Sign and Alpha ID introduced by the Commissioner in 2019.  As rightly submitted by Mr Philip Dykes, SC for the HKJA^[27], it is trite that even with a systemic challenge, the respondents must rely on some evidence to support the lawfulness of the new systems and it is not for the judge to direct the respondents what evidence they should adduce to defend a systemic challenge.

36.The counter-arguments of the applicants may be summarised as follows.

37.In the Forms 86 of the applications in these appeals, the applicants’ challenges were not confined to the use of the Call-Signs and Alpha IDs.  The Call-Sign system was introduced on 27 November 2019, after all the Forms 86 in these applications were filed.  In HCAL 2703/2019 (CACV 644/2020), the challenge was against “the systemic and continuous failure of [AR officers] and [STC officers] to display identification numbers (or any other distinctive insignia) on their uniforms when discharging their constabulary duties”.  In HCAL 2915/2019 (CACV 645/2020), the challenge was in respect of “the failure of the Commissioner to require or ensure that all uniformed police officers, and plainclothes police officers exercising any public power, wear clearly visible individual identification in the course of public order events on and after 12 June 2019”.  In HCAL 2671/2019 (CACV 646/2020), the decisions challenged were that from or about 12 June 2019 and thereafter, STC officers “were not to, or need not, display their [UI Numbers] or ranks on their uniforms”.  It is pertinent to note that issues of implementation of Alpha ID for STC officers were actually raised in the Form 86 in this application, and they are identical to the allegations made in HCAL 1747/2019 mentioned in Lam 1 §18 and Mr Yu’s submission.  We think it is fair to say that the gravamen of the complaints of all the applicants is the failure to require or ensure that police officers performing public order duties (save those performing covert duties) wear unique, clearly visible identification markings.

38.The Commissioner sought to justify the change in the insignia policy for uniformed and plainclothes officers with the new systems of Call-Sign and Alpha ID in the evidence filed in opposition on 24 January 2020.  We do not agree with Mr Yu that the applicants need to amend their Forms 86 if they wished to challenge the implementation of the new systems.  In Lee’s Affirmation filed in HCAL 2703/2019 and his 3^rd affirmation in HCAL 2915/2019, he deposed to the requirements and purposes of the new systems in some detail, but did not deal with issues on implementation of the new systems.  In his affirmation filed in HCAL 2671/2019, he even responded to the allegation that in some media reports certain Alpha IDs displayed were in inconsistent formats.  As mentioned earlier, he sought to justify his position by referring to the judge’s directions on 14 November 2019 and deposing to his belief that the court would focus on issues of principle.

39.What the judge said at the directions hearing on 30 October 2019 and his directions on 14 November 2019 should be read in the proper context.  At the directions hearing, the judge was stating that for the purpose of resolving the complaint about the identification of police officers, he did not think it necessary to resolve factual disputes of hundreds of incidents whether individual journalists were hindered by the police and/or were victims of ill-treatment by the police.  That was because he took the view this was capable of being resolved on a principle basis, and one of the propositions formulated by the HKJA was that “The Commissioner has acted unlawfully by permitting or suffering his officers to perform policing duties without any visible unique identification, and/or without producing a warrant card when reasonably demanded by members of the press”.  The judge did not suggest there would be no need to inquire into the gravamen of the complaint that there was failure to require or ensure that police officers performing public order duties of a non-covert nature wear unique, clearly visible identification markings.

40.The directions on 14 November 2019 should be read in the light of the approach as indicated in the earlier directions hearing.  It was specifically mentioned in the directions that “background facts are relevant to a proper resolution of the issues, even though the court will not be in a position to resolve substantial disputes of primary facts.”  According to Mr Yu’s submissions, the respondents and their legal team took the view that the “same logic” should apply to implementation issues, even though the judge had only alluded to incidents of alleged use of excessive force and ill-treatment by the police in making clear that the judicial review should not be used for resolving substantial disputes of primary facts.  This stance taken by the respondents and their legal team on the scope of the evidence to be adduced is a matter of their own judgment.  Whether they misunderstood what the judge said in the directions hearing and the subsequent directions is not a reason that satisfies Condition 1.

41.In the evidence in reply filed by the applicants in February and March 2020, they deposed to incidents of defective display and failure to display Call-Signs and Alpha IDs^[28] and thus put in issue the implementation problems of the new systems.  Mr Yu submitted that the respondents ought to be given a fair opportunity to respond.  In our view, they did have proper opportunity to respond if they were minded to do so. The dates initially fixed for the rolled-up hearing in late March 2020 were postponed to 24 and 26 June 2020 due to the General Adjournment Period. There was more than three months’ time for the respondents to seek leave to file evidence to address any issue on the implementation of the new systems they now seek to adduce on appeal.  We note that the judge granted leave to the HKJA in a summons issued the day before the postponed hearing to file an additional affirmation^[29].  The respondents chose to persist with their stance stated in the submissions of their counsel before the judge as mentioned earlier.  Having noted the respondents’ position in their submissions^[30], the judge saw no need for further clarification with their counsel.  We do not think there is any unfairness to the respondents or that the judge should be criticised in not putting questions to their counsel.

42.For all the above reasons, we are not satisfied that the Implementation Evidence could not have been adduced at the hearing below with reasonable diligence.  Condition 1 is not met.

E2.  Condition 2

43.Mr Yu submitted that the Implementation Evidence seeks to address the absence of evidence mentioned in §99 of the Judgment, namely, that adequate measure has been put in place to ensure that Call-Signs and Alpha IDs were properly displayed and to take action against non-compliant officers.  The evidence also seeks to refute or explain the instances of failure to comply with the new systems.  The test is whether such evidence, if given, would probably have an important influence on the result of the case, though it need not be decisive.

44.We do not agree with Mr Dykes that the observations in §99 of the Judgment were merely some obiter comments of the judge that were never determinative.  The matters referred to in §§(1) and (2) of that paragraph formed part of the grounds for his ruling that the current practice fails to meet the standard of effectiveness of investigation required under the procedural limb of BOR 3, although there are other reasons and the Judgment must be read as a whole.

45.Two broad grounds of opposition are advanced by the applicants: relevance and the quality of the new evidence.

46.Mr Dykes submitted that the Implementation Evidence is not relevant in the judicial review of the HKJA as its emphasis was and is on the availability of public scrutiny (and hence the role of the press) of the police identification systems.  This was opposed by the respondents that a new internal process of identification “confidential (to the public)” was sufficient to meet the BOR 3 obligations^[31]. The respondents should not be permitted to depart from this position, which is maintained on appeal^[32]. Whether the internal identification system was successfully implemented or not, as asserted in the Implementation Evidence, it would not have made a difference to the final result if, as the judge has held, “the system of identification of police officers cannot be merely through the internal process of the Force”^[33].

47.Mr Hectar Pun, SC^[34] contended on behalf of the applicants in CACV 644/2020 that the Implementation Evidence would not have an important influence on the conclusion in §99 of the Judgment in that it still fails to show “any adequate measure” has been put in place and which the judge said in §§(1) and (2) of §99 that evidence was lacking.  Mr Pun did not elaborate on why the measures described in the Implementation Evidence should be considered as inadequate.

48.On behalf of the applicant in CACV 646/2020, Mr Martin Lee, SC^[35] made a number of criticisms about the nature of the Implementation Evidence in Chan 1 (which relates to the implementation of the Alpha ID): there was only a briefing session held at the outset; no written instructions or guidelines for STC officers have been exhibited; the deponent’s assertion that no instance of non-compliance was reported to him must be viewed against numerous media reports to the contrary; no internal record was provided to support his account of successful implementation of the Alpha ID system.

49.We are not persuaded that the Implementation Evidence would probably have no impact on the final result.  As we have mentioned, the reasoning in the Judgment must be considered as a whole, and §§95 and 99 are part of the reasoning process.

50.As for the shortcomings of the Implementation Evidence, we note Mr Yu’s reply to the criticisms and it suffices to say there are reasonable arguments either way.  We do not think it necessary to resolve the controversy for present purpose.  On the face of the Implementation Evidence, we are inclined to the view that this evidence, if given, would probably have an important influence on the ruling in §99.  Condition 2 is satisfied.

E3.  Condition 3

51.This condition relates to the apparent credibility of the new evidence.  The Implementation Evidence came from high-ranking police officers responsible for implementation and/or was involved in the Harbour City incident.  Mr Pun and Mr Lee have not disputed its apparent credibility.

52.Mr Dykes made the point that the HKJA is in no position to comment on the description of an internal process that is confidential to the public, and contrasted this with the situation in Ladd v Marshall in which all parties in the case were able to discern if the new evidence was credible or not.  The test is apparent credibility.  The fact that the other party is not privy to the new evidence is not a material consideration.  Condition 3 is met.

E4.  Discretion based on public interest

53.As Condition 1 is not satisfied, leave to adduce the Implementation Evidence can only be granted if the interests of justice so require, trumping the need for finality of litigation.  It is of course not sufficient merely because the respondents had been misguided by the reasons summarized above for not providing it before the judge, although we accept that no bad faith was involved.

54.It is instructive to consider the situation in Dr Kwong Kwok Hay v Medical Council of Hong Kong (No 2) in which a “compelling case” was found to admit the new evidence notwithstanding the decision taken on counsel’s advice not to adduce the evidence in the court below.  The new evidence related to the reasoning and thought process of the Medical Council for imposing restrictions on practice promotion in the professional code.  This was crucial to the main issue of whether the restrictions were proportionate to a legitimate purpose.  It was only with the new evidence that the court could fully and properly address the aspects of rationality, necessity and proportionality in determining the main issue (§§4, 6, 7).  Were the court to be handicapped in not being able to examine such evidence, any determination would be “an arid exercise and almost pointless” (§§13(1), 19).  Hence, justice demands that the evidence be admitted and the court be given the benefit of highly relevant material, taking into account the public interest in the case (§§13(2), (3)). 

55.In the present situation, §99 of the Judgment formed part of the judge’s reasoning, and the matters in §§(1) and (2) under that paragraph sought to be addressed in the Implementation Evidence formed part of the reasons for the ruling in §99.  As indicated earlier, we are satisfied that this evidence, if given, would probably have an important influence on the ruling in §99.  If this evidence were to be excluded, the extent to which the court would be handicapped in determining the issue before it may not be as great as compared to the situation in Dr Kwong Kwok Hay.  Nevertheless, we are persuaded that to shut out such evidence would entail a decision based on “woefully insufficient evidence” (Dr Kwong Kwok Hay, at §13(3)) such that it may lead to a miscarriage of justice.

56.We agree with Mr Yu there exists a strong public interest in the present disputes.  In addition to the parties, other protestors, observers and police officers have a significant interest in the outcome.  As submitted, the insignia policies were promulgated at a time when Hong Kong was experiencing unprecedented turmoil, and were designed to address serious and legitimate concerns amongst police officers with respect to rampant doxxing campaigns against them.  The policies were necessitated to ensure effective enforcement of law and order under such difficult circumstances, involving a careful balance of the fundamental rights on the part of the applicants and other protestors under BOR 3 and the privacy rights of the police officers. 

57.For the court to shut out the Implementation Evidence, which would probably have an important influence on the judge’s finding at §99, would not be in the public interest.  On the contrary, the interest of justice demands that the Implementation Evidence be admitted.

58.We are persuaded that wholly exceptional circumstances are made out to justify a departure from the Ladd v Marshall principles.  We will exercise our discretion to admit the Implementation Evidence.

F.  CAPO Evidence

59.The CAPO Evidence seeks to update the information provided to the court regarding the complaints received by CAPO relating to the public order events.  Because the complaints were under investigation at the time Lee’s Affirmation was filed on 24 January 2020, the deponent was not able to provide further information about those complaints^[36]. It was raised in the affirmation filed on behalf of the HKJA that of the complaints received by CAPO on or before April 2020, no information was provided as to when the CAPO Evidence has become available to the respondents such that no application to adduce such evidence could have been made before the rolled-up hearing in June 2020^[37]. But as explained in the respondents’ evidence in reply, as the complaints were under investigation as at 24 January 2020, further information about those complaints was not available.  In particular, as CAPO was expecting and had been receiving further complaints against officers deployed in Operation TIDERIDER, CAPO was unable to compile the relevant figures to be presented as evidence.  It was a highly labour intensive exercise to come up with the statistical aspect of this evidence and it had taken considerable time for CAPO to look into all complaints and categorise them properly^[38].

60.We accept the submissions of Mr Yu that the CAPO Evidence is information which could only be collated after the hearing.

61.The exception provided in Order 59 rule 10(2) enables the court to be informed of matters which have occurred after the trial or hearing.  The Ladd v Marshall conditions do not apply.  This appears to have been overlooked by all parties.

62.The applicable principles in this situation are as follows.  The court has a wide discretion in admitting such new evidence but it should be exercised sparingly with regard to the need for finality in litigation.  The new evidence must substantially affect a basic assumption made at the trial: the matter is one of degree.  It is not possible to produce an exhaustive list of the relevant considerations for the exercise of this discretion; the evidence should be admitted where it would be an affront to one’s sense of fairness not to admit it. (Hong Kong Civil Procedure 2022, vol 1, §59/10/13, citing Mulholland v Mitchell [1971] AC 666 and Hughes v Singh, The Times, 21 April 1989)^[39]

63.The purpose of the CAPO Evidence would appear to be as follows.  In §99 of the Judgment, in addition to the implementation issues, the judge also queried the effectiveness of Call-Signs and Alpha IDs as means of identification (eg a Call-Sign or an Alpha IP is not unique to the officer to whom it has been assigned; the Alpha ID is only attached to the back of an STC officer’s helmet).  It is the respondents’ position that in investigating a complaint, the investigators would adopt a holistic approach and would take into consideration other methods of identification (described as the “two-fold system of identification” in Lee’s Affirmation and summarised in the Judgment at §§43 to 44), and a distinctive insignia (or lack thereof) is not determinative of whether there would be identification, and in turn, effective investigation^[40]. The CAPO Evidence demonstrates that even when no Call Signs or Alpha IDs were provided^[41], CAPO was still able to identify the relevant officers in a substantial number of cases.  Mr Yu submitted this shows that the current systems as a whole are capable of effectively investigating BOR 3 complaints.

64.Mr Yu emphasised that the finding of lack of independence of CAPO in §102 of the Judgment was made in relation to the separate challenge of the HKJA against the complaint handling mechanism and was covered by the other declaration made in §124 of the Judgment.  This is not relevant to the declaration in §123 of the Judgment which is based on §99 and sought to be addressed by the respondents in the application to adduce new evidence.  We are in broad agreement with him on this. 

65.The opposition of the applicants is premised on these broad grounds: the CAPO Evidence is largely irrelevant to the issues in dispute and would not have an important influence on the conclusion in §99 of the Judgment.

66.It does not appear to us that the CAPO Evidence would substantially affect a basic assumption made by the judge.  Evidence of the two-fold system of identification was adduced before him and specifically the second fold of the system concerning other means that CAPO may employ to identify the officer in question if the complainant was not able to supply sufficient information to enable the officer to be identified immediately.  The respondents sought to persuade the judge that this would provide an answer to the issue that the police identification systems meet the standard of effectiveness of investigation required under BOR 3 but failed to do so.  The judge took the view that the two-fold system of identification are “no more than the sort of methods and inquiries that one would reasonably expect would be used or made by any conscientious body tasked with the duty of investigating complaints against police officers”^[42]. Hence, the grounds of appeal are raised in §§5.7 and 5.8 of the notice of appeal summarised earlier.

67.It seems to us that the CAPO Evidence is to seek to bolster an unsuccessful argument advanced before the judge with further evidence.  If the respondents are correct about their contentions in §§5.7 and 5.8 of the notice of appeal, the CAPO Evidence does not add anything of substance to the argument.  We are satisfied it would not be an affront to one’s sense of fairness not to admit this evidence.

68.In the interests of the finality of litigation, we decline to exercise our discretion to admit the CAPO Evidence.

G.  Conclusion and costs

69.We allow in part the application of the respondent to adduce new evidence on appeal.  Leave is granted to adduce the Implementation Evidence comprised in the affirmations set out in §16 above.  The application to adduce the CAPO Evidence is dismissed.

70.We grant leave to the applicants to file evidence in response to the Implementation Evidence, if so advised, within 28 days of the handing down of this judgment.

71.Mr Pun seeks an order that the respondents should pay the applicants forthwith all costs of and incidental to the application, regardless of whether the application to adduce new evidence is allowed or refused, as the respondents are seeking an indulgence from the court. Mr Lee also seeks costs against the respondents in the event of dismissal of the application.

72.Mr Dykes asks for the costs to be reserved.  This is because the HKJA brought the proceedings in a public interest capacity and the proper costs order of the proceedings, including the present application, is likely to involve a range of considerations best considered once the substantive appeal is determined.

73.In light of the position of the HKJA, we consider it best not to make any order as to costs at this stage and reserve the costs of this application for all applicants until the conclusion of the appeals.

Mr Hectar Pun SC and Mr Anson Wong Yu Yat, instructed by JCC Cheung & Co, for the Applicants in HCAL 2703/2019 (Respondents in CACV 644/2020)

Mr Philip Dykes SC, Mr Robert Pang SC, Mr Timothy Parker, Mr Albert N B Wong and Mr Geoffrey Yeung, instructed by Ho, Tse, Wai & Partners, for the Applicant in HCAL 2915/2019 (Respondent in CACV 645/2020)

Mr Martin Lee SC, Mr Jeffrey Tam and Mr Andrew Lau, instructed by Ho, Tse, Wai & Partners, for the Applicant in HCAL 2671/2019 (Respondent in CACV 646/2020)

Mr Benjamin Yu SC, Mr Victor Dawes SC, Mr Anthony Chan and Mr Danny Tang, instructed by the Department of Justice, for the Putative Respondents in all cases (Appellants in CACV 644, 645 and 646/2020)

[1]  [2020] 5 HKLRD 653

[2]  BOR 3 provides as follows: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment …”  BOR 3 is equivalent to Article 7 of the International Covenant on Civil and Political Rights (“ICCPR 7”). A positive procedural obligation on the part of a government arises under ICCPR 7 to investigate promptly and impartially any suspected case of breach of ICCPR 7 by State agents or bodies, including police officers, so as to ensure that the rights thereunder are fully and effectively protected.  See Judgment, §§69 to 75.

[3]  Notice of Appeal in CACV 644/2020, §5.2

[4]  Notice of Appeal in CACV 644/2020, §5.5

[5]  Judgment, §16

[6]  Judgment, §§26, 38, 99

[7]  Notice of Appeal in CACV 644/2020, §5.3

[8]  Judgment, §§44 to 45

[9]  Judgment, §45

[10]  Notice of Appeal in CACV 644/2020, §§5.7, 5.8

[11]  Citing E v Secretary of State for the Home Department [2004] QB 1044 at §§81 to 82

[12]   1^st affirmation of Chan Ron Sing Ronson, filed on behalf of HKJA on 5 November 2021, §§38 to 40

[13]   Re Estate of Chiu Keung [2020] 3 HKLRD 779 at §43

[14]   Lam 2 at §8

[15]   With Mr Victor Dawes, SC, Mr Anthony Chan and Mr Danny Tang

[16]   HCAL 1747/2019 was one of the five applications heard in the rolled-up hearing in June 2020, leave to apply for judicial review was refused in the Judgment.

[17]   Judgment, §§104, 112

[18]   The second complaint relates to the identification of police officers.  The first complaint relates to whether the police is under a positive duty to facilitate journalists in their job; it was determined separately and was not part of the subject matter of the Judgment, see Judgment at §§2 and 3.

[19]   Transcript of directions hearing, p 3 lines C to G

[20]   Transcript of directions hearing, p 3 lines M to S

[21]   The propositions were set out in the Judgment at §15(4).  One of the propositions is that “The Commissioner has acted unlawfully by permitting or suffering his officers to perform policing duties without any visible unique identification, and/or without producing a warrant card when reasonably demanded by members of the press.”

[22]   Transcript of directions hearing, p 3 line T to p 4 line F

[23]   Transcript of directions hearing, p 8 lines G to K

[24]   A similar statement was made by the same deponent in his 3^rd affirmation filed on 24 January 2020 in HCAL 2915/2019, §44.

[25]   1^st affirmation of Lee Kenneth Yuet Lun filed on 24 January 2020 in HCAL 2703/2019, §§5(3), 6 and 27

[26]   Notice of Appeal in CACV 644/2020, §§5.2, 5.5

[27]   With Mr Robert Pang, SC, Mr Timothy Parker, Mr Albert N B Wong and Mr Geoffrey Yeung

[28]   Mentioned in the Judgment at §§26, 38

[29]   Judgment, §125

[30]   Judgment, §89

[31]   Skeleton arguments of the respondents before the judge, §§6.5(i) to (ii)

[32]   Notice of Appeal in CACV 644/2020, §4

[33]   Judgment, §95

[34]   With Mr Anson Wong Yu Yat

[35]   With Mr Jeffrey Tam and Mr Andrew Lau

[36]   Lam 1 at §§48 to 51

[37]   1^st affirmation of Chan Ron Sing Ronson filed on 5 November 2021, §35

[38]   Lam 2 at §§9(1), (2)

[39]   These principles were stated and applied in Re China Fishery Group Ltd [2020] HKCA 169 at §§26 to 35; Re China Medical Technologies Inc [2020] HKCA 541 at §§17 to 24; Cheung Wing Kuen Samuel v Ip Chui Sum [2022] HKCA 1029 at §§39 to 49.

[40]   Notice of Appeal in CACV 644/2020, §§5.7, 5.8

[41]   This does not mean there was failure to wear identification insignia where Call-Signs or Alpha IDs were not provided to CAPO, see K Lam 2 at §8.

[42]   Judgment, §45