Tse Lo Hong v. Attorney General

CACV000083/1995

IN THE COURT OF APPEAL

1995, No. 83

(Civil)

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H E A D N O T E

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Administrative law - Judicial review of police disciplinary tribunal proceedings - Detective Sergeant charged with indecent assault - Absence of a proved motive on the part of the complainant to falsely accuse the "defaulter" did not relieve the tribunal of its responsibility to evaluate the evidence - If, on reviewing the evidence, the only possible conclusion open to the tribunal is that there was a reasonable doubt as to the defaulter's guilt, the court is bound to interfere.

The tribunal (i) did not apply a standard of proof commensurate with the gravity of the case; (ii) lost sight of where the onus lay: rejecting the defaulter's evidence because it depended on his word alone.

Held (Court of Appeal): Appeal allowed. Orders of certiorari to quash the tribunal's determination.

IN THE COURT OF APPEAL

1995, No. 83

(Civil)

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Coram: Hon Litton, V.-P., Bokhary and Godfrey JJ.A.

Date of hearing: 7 September 1995

Date of delivery of reasons of judgment: 14 September 1995

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J U D G M E N T

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Litton, V-P:

1. The appellant was, until the events giving rise to this appeal, a Detective Sergeant in the Royal Hong Kong Police Force.

2. On 27 June 1994 he was found guilty by a disciplinary tribunal on two charges, pursuant to proceedings brought under Part II of the Police (Discipline) Regulations and was, on 1 November 1994, dismissed from the Force. He had been 28 years in the Force, nearly 12 years of which as a Detective Sergeant. The complaint which eventually led to his dismissal - with loss of accrued pension of 28 years - arose from a routine inquiry into a case of burglary of a flat in Wanchai: an inquiry of a kind which a Detective Sergeant would have embarked upon countless times in the course of his career.

3. The two charges on which the appellant was found guilty were as follows:

(A) Conduct calculated to bring the public service into disrepute in that he touched a female Cheung Sue-sueng unnecessarily and offensively on 24 September 1992 at Flat A, 5/F, 421-425 Lockhart Road, Wanchai, contrary to Regulation 3(2)(m) of the Police (Discipline) Regulations; and

(B) Neglect of duty as a police officer in that he failed appropriately to handle a crime report made to him by Cheung Sue-sueng in the afternoon of 20 September 1992.

Application for judicial review

4. On 17 November 1994 the appellant applied to the High Court for judicial review of the disciplinary tribunal's determination and for orders of certiorari to quash the orders made pursuant to such determination. Leave having been granted, the application was heard by Jerome Chan J. who, on 30 January 1995, dismissed the application with costs. Hence the appeal to this court.

Background to the complaint

5. The complainant Cheung Sue-sueng was, in September 1992, 44 years old and lived alone at Flat A, 5/F, 421-425 Lockhart Road. She is of Taiwanese origin, is a business-woman and owned a Karaoke in Taiwan.

6. On the night of 13 September 1992 Madam Cheung made a report to the Police to the effect that her flat had been burgled and cash, gold ornaments, a "Cartier" wrist-watch and a jade-and-diamond ring, to a total value of about $100,000, had been stolen. The appellant and another officer DSPC 14510 Yim Kam-san went to the flat to investigate. Two uniformed officers were also there. The complainant's 18 years-old son turned up and Madam Cheung, accompanied by her son, went to the Wanchai Police Station to make a statement concerning the burglary.

7. On 20 September 1992, about one week after the first burglary, Madam Cheung made a second report of burglary at her flat. She claimed that when she made a report by telephone to the appellant, to the effect that someone had stolen a pair of ear-rings valued about HK$1,000 from her flat, he told her not to make another report to the police but to treat those ear-rings as part of the property stolen on the first occasion. This constituted, in effect, charge B on which the appellant was found guilty. It is worth noting in passing that Madam Cheung made no complaint of neglect of duty at that time. It was not until four days later that she lodged her complaint, and this was incidental to her main grievance which was an allegation of indecent assault by the appellant.

The complaint of indecent assault

8. On 24 September 1992, late at night, Madam Cheung lodged a complaint at the Wanchai Police Station. Her statement was recorded at 0050 hours on 25 September and it was to this effect:

(i) On 24 September 1992, between 10 and 11am, the appellant phoned but Madam Cheung asked him not to disturb her then and to call back later.

(ii) Between 11 and 11.30am the appellant called again and asked if she had the receipts for the gold ornaments reportedly stolen. She said she did and the appellant said he would come to collect them.

(iii) Around 11.30am the appellant arrived. This is what Madam Cheung said then took place:

"As soon as Sergeant Tse came into my house, I gave him the receipts. He took them and said he would have a seat and discuss it in detail. He asked me if I was tired and suggested massaging me. He suddenly carried me to the bedroom. I then pushed him away and returned to the sitting room. He again carried me to the bedroom and put me on the bed. He stroked my private parts with his hands. I immediately went to the door in the sitting room and opened the door. He said that he would not hinder me for long. I stated that I had an appointment with somebody. He then left."

That was, in essence, the complaint as first lodged which became charge A. Madam Cheung did not state how long the incident lasted. From the tenor of her account, it could not have lasted more than a few minutes, unless she was suggesting that "the massaging" had lasted some time.

9. In the evening of the same day - at 21.30 hours on 25 September 1992 - Madam Cheung gave a further statement to a woman sergeant at the offices of CAPO. This statement took a long time to complete. It was not finished until 0100 hours on 26 September 1992. There were a number of notable features about this statement:

(i) Madam Cheung said that she suspected that the first burglary was "the deed of an acquaintance", because no window or door lock had been damaged. And yet, the police who attended at her flat noted that there were obvious signs of a break-in, as the back door was damaged.

(ii) Madam Cheung claimed that after she returned to the flat with her son from the police station in the early hours of 14 September, after having made her burglary report, she paged the appellant. Madam Cheung went on to say:

"My son ... stayed with me to spend the night and he asked me why I was not sleeping and was making phone calls instead. I told him I wanted to ask Sergeant Tse to do me a favour by working harder on my case. Later on Sergeant Tse replied to me by phone and said he would investigate my burglary case. Then he asked me to go to have tea with him to talk about it further when I had time which I felt weird. When Sergeant Tse had hung up, I related to my son ... my earlier conversation with Sergeant Tse and also that he had asked me to have tea with him. I also said I wondered if there was anything wrong with Sergeant Tse."

(iii) As regards the loss of the ear-rings on 20 September, Madam Cheung said that she suspected her neighbour who lived in the flat below and had the keys to her flat. She said she had deliberately put the ear-rings in a conspicuous place to find out whether they would be stolen.

(iv) The complainant claimed that between the time of the first burglary report on 13 September and the day of the alleged indecent assault on 24 September, the appellant had phoned her a number of times suggesting that they should meet for tea - an allegation she did not make in her first statement.

(v) She claimed that she suspected the appellant's motives when he suggested visiting her at her flat to collect a sales invoice on 24 September: And yet she received him dressed in a bath-robe held together with a belt tied in the middle.

(vi) Whereas, in her first statement, Madam Cheung said that the appellant had arrived at her flat at "around 11.30am", she now said that he "rang the bell about 11 o'clock".

(vii) Whereas, in the earlier statement, she claimed that the appellant had asked if she was tired and "suggested" massaging her, she now said that the appellant pressed her left shoulder with his right hand and asked her to sit down on the floor in front of him "to facilitate him doing massage for me".

10. As regards the indecent assault itself, Madam Cheung made essentially the same allegation in both statements - that the appellant had lifted her up and carried her into the bedroom, twice. On the second occasion, her bath-robe had parted, her underpants were exposed and the appellant passed his hand over her private parts. She added in the second statement (absent in the first): "... during the time I struggled with Sgt. Tse, he said a sentence with the meaning of wanting to kiss my lower part but I don't remember at what moment he said it".

The appellant was interviewed

11. On 26 September 1992 the appellant was interviewed by a Station Sergeant about the complaint of indecent assault and he made a full statement, denying any wrong-doing. Apart from the first visit to Madam Cheung's flat with the police team in the early hours of 14 September 1992, the appellant said this:

"Two to three days later, exact time forgotten, the victim informed me through my pager to contact her. When I reached her on the phone, the victim asked me with a Mandarin accent if I was Sgt. TSE. I replied in the affirmative and asked her for what she looked for me. She said that she believed that the case was done by a familiar person who knew what time she would be away from home. However, she did not say who this familiar person was. She asked me about the development of the case. I said that the foreign currencies, ear-rings and finger-ring were ordinary items without serial numbers and were thus hard to trace and nevertheless, if she had sales memo and serial number of the lost watch it would be easier to trace it. Regarding the finger-ring and ear-rings, I would later inform SDPC 14510, the investigation officer of the case, to contact her and to take her to make a sketch of the stolen property. I also informed her that she could contact either SDPC 14510 or me if she had any question.

As far as I remember, in the afternoon of 21/9/1992, I was on leave. The victim contacted me again through my pager. On the phone the victim said that somebody went into her house and again stole a pair of ear-rings. She said that a report had been made to police and police had visited the scene, but she refused to make a statement. Her purpose in informing me was to request me to step up enquiries otherwise thief might go very often to her flat to steal. Eventually I suggested her to install anti-burglary lock and iron grille and then put down the phone."

12. That, as can be seen, constituted a total refutation of charge B on which the appellant was eventually found guilty.

13. As regards charge A, the appellant said that he was in the Wanchai Police Station on the morning of 24 September 1992. Around 11.15am he was tidying up documents in Room 114 and DSPC 7373 was taking a statement from a female victim of a false imprisonment case. Around 12.35pm he had finished and told DSPC 7373 that he was going out for a meal and also told WIP Wong Suk-yee the same thing before he left. Around 12.50pm at Lockhart Road near Stewart Road he saw Madam Cheung and then he went on:

"After we greeted each other, she asked me about the development of the case. I said that enquiries in the case were still going on but if she could supply the sales memo and serial number of the stolen watch it would be easier to trace the whereabouts of the stolen property. I also told her that if she had any inquiry or any information to supply, she could contact Mr Yim, the investigation officer of the case (i.e. SDPC 14510), directly. After hearing what I said, she appeared to be very angry. Using foul language with Mandarin accent, she swore at us, police, saying that she wondered what we police had been doing. She said that it was merely a report, making which the police did not make effort to investigate. She said that the things stolen were not important but the most important thing was to recover the stolen diamond/jade finger-ring. She added that due to the loss of the finger-ring, she had been suffering from insomnia, headache and emotional depression and she often had to take sleeping pills in order to get to sleep. She continued to say that she wondered what we police had been doing. I told her that she was just in fact insulting me. Then she continued to swear. I thus ignored her, saying that if she had any problem, she could contact us. I then walked away.

Around 13.00 hours, I returned to Wanchai Police Station to carry on my duty. I did not leave the police station until I went off duty at 18.35 hours.

On that day, apart from leaving the police station for meal, I also went out with SDPC 7373 and DPC 402 between 09.30 and 10.20 hours to handle a case of burglary (CCR 923252). In rest of the time, I was inside the police station."

14. The appellant's version of events was supported to a considerable extent by DSPC 7373 who said that on 24 September 1992 from about 11.15am he started taking a statement in Room 114 at the Wanchai Police Station. During the taking of the statement, the appellant frequently entered Room 114 to check on progress. This happened on several occasions and each time the appellant stayed 10-odd minutes; which, if true, rendered it impossible for the appellant to have been in Madam Cheung's flat at about 11 or 11.30am that morning.

The hearing

15. The hearing into Madam Cheung's complaint did not take place until one-and-three-quarter years later. Madam Cheung testified.

16. One striking discrepancy between her evidence and the two statements she made in September 1992 was this: In her statements, Madam Cheung had alleged that the appellant had lifted her up and carried her into the bedroom on both occasions; in her testimony she said that the appellant had pushed her into the bedroom each time. If the truth was that she was carried, she could not have been pushed.

17. Instead of examining this glaring discrepancy in the complainant's story, and entertaining the possibility that it was invented, the Adjudicating Officer side-stepped the issue. In summarising the effect of her complaint in his "judgment", he said that the appellant "manhandled" Madam Cheung into her bedroom. By the use of that expression, the Adjudicating Officer encompassed both possibilities - that she was pushed, alternatively, carried. It mattered not which: an approach which was explicable if the Adjudicating Officer had assumed that she was telling the truth in relation to her main complaint. It was wholly wrong if the burden rested throughout on the prosecution to prove the charge against the appellant.

The time of the alleged incident

18. In her testimony Madam Cheung did not give a time for the appellant's arrival at her flat on 24 September. This left the time as either "around 11.30am" in accordance with her first statement or "about 11 o'clock" as in her second statement. There was strong evidence before the Adjudicating Officer that, at about that time, the appellant was at the Wanchai Police Station. That evidence came from DSPC 7373 Leung Wing-hon who testified to the effect that starting from 11.15am on 24 September he was taking a statement in Room 114 and the appellant went into Room 114 to check on progress. When he was cross-examined, he reiterated the fact that the appellant went into Room 114 regularly, every 10 to 20 minutes. The following exchange then took place:

"Q. Do you remember the first time he came in to see you?

A. Not sure.

Q. Do you mean that you are not sure if the defaulter visited you between 11.30 and 12.30 hours?

A. I am sure that he did come in."

19. The witness was then shown his statement of 26 September 1992 and he was then asked:

"Q. Yesterday you cannot be sure whether or not D/Sgt. 9950 [the appellant] left the Police Station between 11.30 hours and 12.30 hours. Is that correct?

A. Correct.

Q. Then how could you say for sure that the defaulter did come in to see you taking a statement during that time?

A. I am not hundred percent sure whether he came in during that particular period. But I am sure he did visit me several times during the course of taking the statement."

The cross-examination ended with this passage:

"Q. Since you concentrated on the statement taking you didn't notice the presence or otherwise of D/Sgt. 9950?

A. Yes. D/Sgt. 9950 kept on going in and out, supervising his subordinates.

Q. Am I correct to say that he did come in during the period 11.15-11.30 hours and from 12.30 to 15.15 hours?

A. Yes."

20. On any fair view of the evidence of DSPC 7373 Leung Wing-hon he was supporting the appellant's version of events. And yet the Adjudicating Officer's conclusion was that the appellant's "assertion" remained uncorroborated.

21. One of the witnesses called by the prosecution was Mr Chen Wei-chou, a relative of the complainant. He had made a statement on 29 September 1992 and this was tendered in evidence as part of the prosecution case. In that statement he said:

"5. Between 11:50 am and 12 noon, I telephoned twice to her home, and she said that the sergeant had not arrived. I remember so clearly about the time of these two telephone calls made to her because it indicated the time on my office telephone."

Pausing there, and viewing the evidence objectively, one would immediately have concluded that there was something radically wrong with Madam Cheung's story. On any version of her story, by 12 noon the indecent assault must already have taken place. This necessarily raised the possibility that the event as alleged by her never occurred.

22. The matter goes further, for Mr Chen went on in his statement to say:

"6. Around 12:05 pm, I again telephoned the home of CHEUNG Sue-sueng, and she said that the sergeant in question was already at her home, and during the period up to 12:25 pm I telephoned her for about 3 to 4 times, and she told me that nothing was wrong. Regarding the telephone call at 12:25 pm, CHEUNG Sue-sueng told me that she had to go out, and so I did not telephone her again."

23. Again, pausing there, this passage could hardly be said to support Madam Cheung's story - apart from the allegation that "the sergeant" was at her home.

Madam Cheung was insulted

24. Mr Chen went on to say that around 12.40 pm he received a telephone call from the complainant telling him "emotionally that something had happened". She "did not release the detail of what had happened to her", but just told Mr Chen that "she had been insulted".

25. An insult cannot be equated with an indecent assault. On one view of Mr Chen's statement, it could be said that it was in fact consistent with the appellant's version of events: If Madam Cheung had taken the altercation at Lockhart Road as an "insult" she might well have complained to her relative "emotionally" about it. Madam Cheung had, according to her second statement, been suffering from insomnia and had not fallen asleep for two to three days prior to 24 September. By the afternoon of 24 September she might well have been in a highly emotional state and thought that the appellant had insulted her in the street.

The Adjudicating Officer's approach

26. The Adjudicating Officer's conclusion on the effect of Mr Chen's evidence was completely one-sided. He said that Mr Chen "corroborated the evidence by PW1 [Madam Cheung]", ignoring the fact that as regards the time of the alleged visit to the flat Mr Chen supported the appellant's version that he was not there in the flat at the time when the alleged indecent assault took place.

27. In summarising the effect of the prosecution case the Adjudicating Officer said this:

"In contrast, the prosecution case tells a logical, cohesive story. There are several instances where the relevant testimony of prosecution witnesses is at variance with written statements - mostly in regard to timings. But without exception, these are all minor; a matter of half an hour to an hour."

28. The difference of "half an hour to an hour" could have meant that the event as described by Madam Cheung never occurred at all: a possibility which the Adjudicating Officer seemed to have eliminated from his consideration.

Charge B

29. This charge arose from Madam Cheung's statement made at the CAPO office on 25 September 1992. She said that when she called the appellant to tell him that she had lost a pair of gold ear-rings, on 20 September, the appellant told her that she did not have to make another report and to regard it as missing on the first occasion.

30. As to this, the appellant's version of events, as related in his statement of 26 September 1992, was that the first time Madam Cheung contacted him through his pager was two to three days after the first report at the Wanchai Police Station. He returned her call. When she told him about the burglary she also said that a report had been made and the police had "visited the scene".

31. At the hearing in June 1994 it was established that the pager call to the appellant was made at 15.57 hours on 20 September 1992 - not in the afternoon of 21 September, as the appellant appeared to recollect. However, the timing of the call was not the crucial issue. There was no particular reason for the appellant to recall either the precise time or date. The crucial issue was the appellant's alleged response: Telling Madam Cheung, in effect, to make a false report.

32. What are the inherent probabilities of an experienced Detective Sergeant of good standing doing something like that?

33. The Adjudicating Officer did not approach the analysis of the evidence upon this basis. He focussed his attention on one fact: When did Madam Cheung make a 999 call, reporting the theft of her ear-rings? The prosecution adduced evidence that the 999 call was made at 17.15 hours. As the paging call to the appellant was at 15.57 hours, the Adjudicating Officer concluded that the conversation, which formed the basis of charge B, must have taken place before the 999 call. From this, the Adjudicating Officer concluded that Madam Cheung's evidence was "the correct version of events" and the appellant "did indeed advise her not to make another report of burglary".

34. This conclusion is vitiated by two fundamental flaws:

(i) It rested upon the assumption that Madam Cheung was incapable of mendacity: That is, that she could not possibly have been telling an untruth when, according to the appellant, she said she had already reported the theft to the police.

(ii) The Adjudicating Officer never weighed the inherent probabilities at all.

The burden of proof

35. Reading the Adjudicating Officer's "judgment" as a whole, the impression is inevitable that he was, in effect, looking to the appellant to prove his innocence.

36. In paragraph 53 of the "judgment", the Adjudicating Officer said this:

"The manner in which PW1 gave her evidence; her demeanour and her attitude; left an impression of truthfulness and sincerity which simply did not need corroboration."

37. In effect, the inconsistencies in the complainant's own story, the discrepancies in "timing", these could all be overlooked because her "demeanour" was so impressive. In contrast, the Adjudicating Officer adverted repeatedly to the fact that the appellant's version of events remained "uncorroborated". For instance, what the appellant said took place at Lockhart Road when Madam Cheung lost her temper and abused him and the police for not putting more effort into the investigation. In summarising the effect of the appellant's version, the Adjudicating Officer said this:

"He states that she told him she had been suffering from insomnia and depression as a result of the case. He said that there were casual spectators to the scene and that PW 1 was unaccompanied at the time. There is no supporting evidence for this version of events."

38. What "supporting evidence" might reasonably have been expected is difficult to imagine, unless it be suggested that the appellant should have realised that Madam Cheung was going to trump up a story against him, and should therefore have had the foresight to immediately stop the passers-by and obtain their identities as potential witnesses.

39. The Adjudicating Officer had convinced himself at an early stage that Madam Cheung was entirely truthful and reliable as a witness: to such an extent that when he said (at paragraph 53) that her testimony "simply did not need corroboration", he was saying in effect that it needed no evaluation either. There was in fact no such attempt: for instance, the possibility that Madam Cheung was neither carried nor pushed into the bedroom was never entertained, and the possibility that Madam Cheung had trumped up the charge of indecent assault was simply rejected out of hand.

40. In coming to his verdict on the two charges the Adjudicating Officer said this:

"The defaulter's defence to both these charges is that no such events took place. For the A) charge he says he was not even at the alleged scene of the incident - but the defence produced no convincing evidence in support of his alibi. For the B) charge the defaulter contends that PW 1 told him that she had already made a report to the Police and that there was no question of his giving advice as to whether or not to make a report to Police.

I find the general tenor of the prosecution evidence, particularly that of PW1, to be veracious. In direct contrast, I was not impressed with the veracity of DW1, the defaulter."

41. The impression that the Adjudicating Officer was, in effect, looking to the appellant to prove his innocence is reinforced when one considers the part of the judgment under the heading "motive for PW1 to frame the defaulter". The Adjudicating Officer said that there was no evidence whatsoever that the appellant had made triad enemies in the Karaoke business or had any connection with Madam Cheung or her Karaoke business (which was in Taiwan). The Adjudicating Officer then added: "I accordingly reject this allegation".

42. The "allegation" which the Adjudicating Officer was then trying was Madam Cheung's allegation of indecent assault. This was in effect turned on its head.

43. The experience of the law is that people sometimes do make false allegations. They do so from a variety of motives which would generally be beyond the competence of a tribunal to determine. The absence of a proved motive does not relieve the tribunal of its responsibility to evaluate the evidence.

44. If it was inherently improbable that Madam Cheung should have trumped up a charge against the appellant, it was equally improbable that someone in the appellant's position should have behaved in the way as alleged. The Adjudicating Officer did not approach his fact-finding function from this stand point of impartiality.

45. What the appellant was entitled to, in law, was a due inquiry into the charges. This he never got.

Standard of proof

46. We were, in the course of the hearing, referred to A.G. v. Tsui Kwok-leung [1991]1 HKLR 40, McAllister v. General Medical Council [1993] AC 388 and a number of other cases. I will not burden this judgment - already far too long - with yet another analysis of the law relating to the standard of proof in police disciplinary proceedings. In my judgment the matter can be approached very simply. Charge A was, in essence, one of indecent assault. This carried severe penalties for the "defaulter". To categorise the proceedings as "civil" does not end the matter. The standard of proof must be commensurate with the gravity of the charge. Here the tribunal seems to have required the prosecution to prove the case on a mere "balance of probabilities" which in my judgment is plainly unacceptable.

47. On this ground alone the finding of guilt on charge A is vitiated as a matter of law.

Conclusion

48. The tribunal's error is, in my judgment, even more fundamental. Mr McCoy is, in my view, correct in saying that the tribunal treated the appellant as though he had to prove his innocence. This was, in a sense, inevitable once the tribunal started from the premise that Madam Cheung was necessarily a truthful and reliable witness. The failure to properly evaluate her evidence meant, in effect, that the appellant had to prove his case.

49. The judge, in the court below, said it was true that the Adjudicating Officer was "guilty" of using the word "uncorroborated" with reference to the defence evidence. The judge was nevertheless not persuaded that "by the indiscriminate and cavalier use of [this] legal term ... the Adjudicating Officer had misdirected himself on the burden of proof". The judge failed to go to the core of the issue. The fault in the decision-making process did not simply lie in the misuse of a legal term. The Adjudicating Officer adopted an approach to the case which was fundamentally flawed.

50. Any tribunal, with no preconceived view as to Madam Cheung's veracity or otherwise, would have, at the end of the day, been left in considerable doubt as to whether her allegations were true.

51. The appeal must be allowed. I would grant an order of certiorari to quash the determination of the disciplinary tribunal made on 27 June 1994 and all consequential orders flowing from this judgment. The judge's order must be discharged and I would make an order nisi that the appellant should have the costs of the appeal and of the proceedings in the court below.

Bokhary JA:

52. We are here concerned with a decision reached in proceedings under the Police (Discipline) Regulations, Cap. 232. No appeal to the courts lie from such decisions. But they are subject to judicial review. Unlike an appeal which essentially concerns the merits of a decision, judicial review essentially concerns the legality of the decision-making process.

53. That is not to say that a court exercising jurisdiction by way of judicial review is bound to shut its eyes to the evidence. Sometimes the legality of the decision-making process can only be judged in the context of the evidence as examined and analysed.

54. I am in complete agreement with my Lord, the Vice-President's analysis of the evidence in the present case.

55. The first complaint made against the decision-making process here is that the Adjudicating Officer applied too low a standard of proof.

56. The case of Lanford v. General Medical Council [1990] 1 AC 13 bears some resemblance to the present case. It was an appeal to the Privy Council by a doctor whose name had been erased from the medical register upon his being found guilty of serious professional misconduct in that he had in effect indecently assaulted two female patients while medically examining them. As in the present case, a person's career was at stake.

57. Delivering the advice of the Privy Council, Lord Lowry said (at pp. 19H - 20A) that:

"[Counsel for the doctor] (rightly as their Lordships consider) submitted that the onus and standard of proof in these disciplinary proceedings and the relevant legal principles were those applicable to a criminal trial."

58. In Attorney General v. Tsui Kwok-leung [1991] 1 HKLR 36, this Court declined to follow that dictum, saying this instead (at p. 45 I - J):-

"Generally in civil proceedings, which, in our opinion, must include those conducted within the parameters of the Police (Discipline) Regulations, it remains good law that the civil standard of proof obtains albeit when considering, for example, an allegation of fraud, a higher degree of probability will be required than when considering an allegation of negligence. The degree of probability, falling short of satisfaction beyond all reasonable doubt, must be commensurate with the occasion even when the liberty of the subject is [not] at risk."

59. Since then, Lord Lowry's dictum in Lanford v. General Medical Council(supra) has been considered by the Privy Council itself. In McAllister v. General Medical Council[1993] AC 380, Lord Jauncey of Tullichettle, delivering the advice of the Privy Council, said (at p. 399 A - F) that:

"Their Lordships do not consider that the above dictum can be treated as having universal application in all cases arising before the committee. In charges brought against a doctor where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the onus and standards of proof should be those applicable to a criminal trial. However there will be many cases, where the charges which a doctor has to face before the committee could not be the subject of serious or any criminal charges at all. The committee is composed entirely of medical men and women learned in their profession and to require that every charge of professional misconduct has to be proved to them just as though they were a jury of laymen is, in their Lordships' view, neither necessary nor desirable. What is of prime importance is that the charge and the conduct of the proceedings should be fair to the doctor in question in all respects. It is not without significance: (i) that rule 50 of the Rules of 1988 clearly contemplates that the committee may consider evidence which would not be admissible in criminal proceedings; and (ii) that the rules nowhere provide that criminal standards of proof and corroboration must at all times apply."

60. So the criminal standard of proof is not applicable simply because a serious disciplinary charge is involved. But where the events giving rise to such a disciplinary charge would also found serious criminal charges, then it may be appropriate to apply that standard.

61. Here the allegation was against a police officer with a long and unblemished record. That allegation amounted to one of a bad case of indecent assault committed by him against the victim of a burglary which he was investigating in the course of his duty. He denied it. It boiled down to one person's word against another's. And his career and good name hung on the outcome.

62. Any distinction between what it took to prove that allegation in a criminal court and what it took to prove it in a disciplinary tribunal would, in my view, have been only theoretical and not real. It would be too fine a distinction to put into practice.

63. Indeed, even a theoretical distinction is difficult to formulate, explain or justify. In the course of the argument, counsel for the respondent seemed to suggest that what has to be excluded in order to prove a disciplinary charge of the present kind is a "considerable" doubt or a "real" doubt.

64. If there is one thing which this branch of the law can do without, it is the introduction of more labels. And I reject the suggested ones: especially as why a reasonable doubt is to be regarded as inconsiderable or unreal was not explained let alone justified.

65. Under the sub-heading "Standard of Proof", this is what the Adjudicating Officer said in his "judgment":

"48. The Defence quote a civil case, namely Bater v. Bater etc., as their argument for a criminal standard of proof being adopted in these domestic proceedings in which the A) charge is particularly serious in nature.

49. The consequences of a finding of 'Guilty' in a case of this nature must be serious, likely to attract the maximum punishment of dismissal. Whilst I accept that the Tribunal is bound to weigh the evidence up extremely carefully in a case such as this, the fact is that it is still a civil case and the civil standard of proof "on the balance of probability" remains. The normal rules of evidence in a criminal court, such as hearsay, do not apply."

66. Later on, in the penultimate paragraph of his judgment, the Adjudicating Officer said:

"68. I am left in absolutely no doubt whatsoever, taking the evidence as a whole, that the prosecution have proved both charges.

67. Now, the mere fact that the Adjudicating Officer said that he rejected the criminal standard of proof and chose the civil one instead would not necessarily drive me to conclude that he had really applied too low a standard when he actually got down to making his decision. The answer here does not lie in semantics.

68. By the same token, I would not hold that he had really applied a sufficiently high standard merely because he spoke of being "left in absolutely no doubt whatsoever". Sometimes - and the present case is such an instance - there are far more reliable indications of how a conclusion was reached than the emphatic language in which that conclusion is eventually expressed.

69. I am in complete agreement with what my Lord, the Vice-President says as to the Adjudicating Officer's approach to the evidence.

70. On the basis of the evidence and the Adjudicating Officer's approach to it, my conclusions are as follows.

71. First of all, he did not apply a standard of proof commensurate with the gravity of the case: applying too low a standard.

72. Secondly, he lost sight of where the onus lay: repeatedly rejecting the appellant's evidence because it depended on his word alone.

73. Finally, in the state in which it was left at the end of the case, the evidence brought forward with a view to supporting the charges was incapable of supporting either of them.

74. Accordingly, I would allow this appeal and make the orders which my Lord, the Vice-President proposes.

Godfrey J.A.:

75. In paragraph 49 of his "judgment" the adjudicating officer said this:

"49. The consequences of a finding of 'Guilty' in a case of this nature must be serious, likely to attract the maximum punishment of dismissal. Whilst I accept that the Tribunal is bound to weigh the evidence up extremely carefully in a case such as this, the fact is that it is still a civil case and the civil standard of proof 'on the balance of probability' remains. ......"

76. Whilst it is true that disciplinary proceedings are not criminal proceedings, I am of the opinion that the standard of proof in such proceedings as these requires at least this, that if, taking the evidence as a whole, there must be a reasonable doubt as to the guilt of the "defaulter", then he is entitled to a finding that the case against him has not been proved.

77. In the present case, in paragraph 68 of his judgment, the adjudicating officer said this:

"68. I am left in absolutely no doubt whatsoever, taking the evidence as a whole, that the prosecution had proved both charges."

78. Since, at the end of the day, the adjudicating officer had "no doubt whatsoever" as to the defaulter's guilt, he would have been bound to find the charges proved whatever standard of proof he had applied to them.

79. Accordingly, the defaulter has not satisfied me that the findings against him ought to be reviewed on the ground that the adjudicating officer misdirected himself as to the appropriate standard of proof.

80. But the matter does not rest there. In evaluating the evidence, the adjudicating officer seems to have relied exclusively on the impression that the complainant made on him when giving her evidence. He preferred her evidence to that of the defaulter. We in this court have not had the advantage which the adjudicating officer had of seeing and hearing the witnesses; but if we are satisfied that the adjudicating officer failed properly to use his advantage in that respect, we are entitled and bound to consider the evidence for ourselves. If, on reviewing the evidence for ourselves, we find that the only possible conclusion open to the adjudicating officer, on the evidence taken as a whole, must have been that there was a reasonable doubt as to the defaulter's guilt, we have to interfere; for then the proof tendered against the defaulter would have fallen short of the required standard. The fact that the adjudicating officer formed a favourable impression of the complainant as a witness would not get over this difficulty.

81. In this court we have reviewed the evidence; and in my judgment, the only possible conclusion, on the evidence taken as a whole, is that there must, indeed, be a reasonable doubt as to the defaulter's guilt. It would not be right for us to substitute our conclusions for those of the adjudicating officer merely because, on reading the transcript of the proceedings, we consider that we would have reached a different conclusion from him. But on the evidence, as analysed by Litton VP, I am satisfied here that the only possible conclusion open to the adjudicating officer was that there was a reasonable doubt as to the applicant's guilt. Had I formed the view that, taking the evidence as a whole, the adjudicating officer was entitled to find that there could be no reasonable doubt as to the defaulter's guilt, I would have declined to quash his decision, even if I had disagreed with him. But I have formed the opposite view, and accordingly I agree with Litton VP and Bokhary JA that the process by which the adjudicating officer arrived at his decision was flawed and that accordingly we must make an order of certiorari here.

Representation:

Mr G.J.X. McCoy (M/S Cheung, Chan & Chung) for Applicant/Appellant

Ms Lynda M.A. Shine (A.G.'s Chambers) for Respondent/Respondent