Lai Chun Hung v. Secretary for Civil Service and Another
Read the full judgment text of HCAL 484/2022 on BabelCite. This High Court CFI judgment was delivered on 9 August 2023.
1. The Applicant is a former staff member of the Correctional Services Department (“CSD”). His last rank was Assistant Officer II (“AOII”).
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HCAL 484/2022 [2023] HKCFI 1590 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 484 OF 2022 ________________________ BETWEEN
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________________________ D E C I S I O N ________________________ A. Introduction 1.The Applicant is a former staff member of the Correctional Services Department (“CSD”). His last rank was Assistant Officer II (“AOII”). 2.In 2016, he was charged with two disciplinary offences and was found guilty of both at the conclusion of a disciplinary hearing. By a decision (“Sentencing Decision”) dated 12 June 2019, the Commissioner of Correctional Services (“Commissioner”) awarded the punishment of “dismissal without retirement benefits” against the Applicant as regards the first charge. 3.The Applicant appealed against the Sentencing Decision to the Secretary of Civil Service (“Secretary”). By a decision dated 22 March 2022 (“Appeal Decision”), the Secretary affirmed the Sentencing Decision. 4.By a Form 86 dated 15 June 2022, and filed the next day, the Applicant sought leave to challenge both the Sentencing Decision and the Appeal Decision by way of judicial review. On 21 July 2022, I granted leave on paper. The substantive hearing was subsequently fixed for 13 June 2023. At the hearing, the Applicant was represented by Mr Antonio Tsui of Counsel. The Commissioner and the Secretary were represented by Mr Aaron Lam, Senior Assistant Law Officer (Civil Law) (Ag) and Mr Jonathan Ip of Counsel. 5.I reserved judgment at the conclusion of the hearing. This is my Judgment. B. Focus of the Argument 6.A myriad of complaints was raised in the Form 86 and adopted in the Form 86A, neither of which was signed by Mr Tsui. In his skeleton submissions, Mr Tsui condensed the various complaints into three main grounds, all of which are said to have arisen from or flowed from the improper procedure adopted in the disciplinary hearing. 7.The impropriety is said to be found in the adoption of a “PNG Procedure” rather than a “PG Procedure” – where PNG stands for “pleaded not guilty” and PG stands for “pleaded guilty” – even after the Applicant had pleaded guilty to the disciplinary offences. As the language of PG and PNG might suggest, the shape of the disciplinary hearing resembles the usual form of criminal proceedings conducted in a Court of law. 8.It is undisputed that the Applicant initially pleaded ‘not guilty’ to the disciplinary offences but later reversed his plea to one of ‘guilty’ during what I would loosely call a trial. Mr Tsui said that at that point the trial should have switched from the PNG Procedure to the PG Procedure, and the presentation of prosecution evidence against the Applicant should have ceased and the hearing should have moved to the stage of a plea in mitigation. However, the Adjudicating Officer (“AO”) – who was a Superintendent of the CSD assuming the adjudicatory role in the Disciplinary proceedings – continued to adopt the PNG Procedure and allowed the “Prosecuting Officer” (“PO”) – who was a CSD officer responsible for prosecuting the Applicant – to present more evidence against the Applicant. 9.From this theme, Mr Tsui formulated three grounds of review, as follows:
10.Central to all three grounds are the propriety of the procedures adopted in the disciplinary proceedings conducted before the AO, which has generated the materials forming the basis of not only the Sentencing Decision but also the Appeal Decision. The Appeal Decision was conducted on paper. Evidence, which Mr Tsui said had only come into being in the way it did was because of the wrongful continuation of the PNG Procedure, was also admitted into the decision making process leading to the Appeal Decision. Whilst not put exactly in this way, Mr Tsui’s positon, as I understand it, was that if his attacks on the procedural propriety of the disciplinary proceedings succeeds, both the Sentencing Decision and the Appeal Decision should fall. 11.Mr Tsui did not pursue other arguments raised in the Form 86 or the supporting materials, which, with respect, were presented in a rather scattered or incoherent manner. Therefore, I shall focus on these three broad grounds and refer only to facts material to the analysis of these three grounds in the Judgment. C. The Regime for Disciplinary Proceedings 12.To determine whether the actual procedures adopted were improper, it is necessary to see what (proper) procedures are envisaged under the relevant regulatory regime. C.1 Prison Rules 13.Provisions governing disciplinary matters against officers employed in prisons are to be found in Part V of the Prison Rules Cap 234A (“Prison Rules”). The then applicable version for the Applicant’s case was the one coming into effect on 12 November 2015. 14.Rule 239 of the Prison Rules sets out a list of disciplinary offences for which persons employed in a prison could be charged. Of relevance to this case are two disciplinary offences:
15.Rules 243 to 251 set out the procedures running from the entering of a charge to the award of punishment if the person is convicted. 16.Rule 243 provides for the procedure by which an officer could be charged. The process starts with a charge sheet which shall set out one or more of the specific disciplinary offences listed under Rule 239, as well as such particulars which should leave the officer with no misapprehension as to the charge against him. The charge sheet is to be handed to the officer charged at the earliest possible moment, together with a list of witnesses and their written statements which are proposed to be adduced in support of the charge. 17.Rule 244 provides that the officer charged shall, upon the receipt of the charge sheet, state in writing his reply to the charge and give the names of any witnesses he decides to call (and their witness statements) within 24 hours. 18.Rule 245 provides for the power to hear charges to officers in the rank of Superintendent. It is worth setting out Rule 245 in full since it directly concerns the PG Procedure and the PNG Procedure.
19.In gist, the Superintendent will only hear the charge if he is of the view that the case is within his competence and that his powers of punishment are sufficient if the charge is established at the end. Otherwise, he will refer the case to the Commissioner or Deputy Commissioner for hearing or for awarding punishment. Rule 245(1)(a) governs the PG Procedure which is expected to be triggered by an admission to the charge. Rule 245(1)(b) governs the PNG Procedure which is to be adopted when the accused denies the charge. 20.It can be noted that Mr Lam, on behalf of the Commissioner and the Secretary, placed some emphasis on the provision in Rule 245(2)(a) which expressly empowers the AO to hear “any other witnesses whom the Superintendent may consider desirable to call” when the accused has pleaded guilty. I will return to this point later. 21.Rule 246 sets out the rights of the accused in the conduct of the disciplinary hearing. 22.Rule 247 sets out the powers of the Superintendent in awarding punishment. He can only administer a fine, a reprimand, a severe reprimand, a combination of reprimand and fine, or certain hours of extra duty. 23.Rules 248 to 255B set out the powers of the Deputy Commissioner and the Commissioner on the hearing of a charge in awarding punishment. The Commissioner also has the option of further referring the case to the Chief Executive (“CE”). The Deputy Commissioner, the Commissioner, and the CE are capable of awarding punishments heavier than those that could be awarded by the Superintendent, with the CE capable of awarding the most severe forms of punishments. 24.In respect of punishments for Assistant Officers (to which rank the Applicant belonged), Rules 255 and 254(b) provide that an Assistant Officer who is found guilty of or pleads guilty to a disciplinary offence may be punished by the Commissioner or the CE by awarding reduction in rank, stoppage or the deferment of increment, forfeiture of pay in some circumstances, a fine not exceeding one month’s salary, severe reprimand, extra duties, dismissal without retirement benefits, compulsory retirement with full retirement benefits or reduced retirement benefits or without retirement benefits. Obviously the option of dismissal or compulsory retirement without retirement benefits is the most severe of all. 25.Rules 255C to 255K further set out matters concerning the reviews and appeals of either a guilty finding or a punishment awarded to the accused. Rule 255E(1) provides that the appeal shall lie to the CE in respect of a finding made or a punishment awarded by the Commissioner, and the appeal shall lie to the Commissioner in any other case. Rule 255E(2) allows the CE to delegate to the Secretary the determination of an appeal referred to him. 26.Rule 255H provides that for the purpose of any appeal against a finding, the CE may accept in whole or in part the record of the evidence already taken or may direct that the whole or any part of the evidence be taken again or that additional evidence be taken. C.2 Standing Orders and SDM 27.Apart from the Prison Rules, disciplinary proceedings against prison staff are also regulated by the CSD’s house rules published in two internal documents known as the “Standing Orders” and the “Staff Discipline Manual” (“SDM”). 28.Of particular relevance is Chapter 4 of the SDM, which concerns ‘Formal Disciplinary Proceedings’. Before turning to the more directly relevant provisions, it can be noted that:
29.It can be noted in passing that §4.43 expressly states that the disciplinary hearing is not a court of law, and proceedings should be conducted without undue formality. But I do not think that provision is particularly central to the analysis required for this case. 30.§§4.48 to 4.49 – headed “Taking plea” – provide that the plea shall be made by the officer charged himself and that he should be informed of his various rights in the conduct of the hearing. 31.Immediately following “Taking plea” is a section headed “Plea of guilty”, comprising §§4.50 to 4.54. As the heading suggests, these paragraphs set out what shall happen if the officer pleads guilty, i.e. the PG Procedure. These paragraphs read:
32.Mr Tsui’s emphasis was on §§4.50 and 4.54. He said since the Applicant pleaded guilty in the middle of the trial and the guilty plea was accepted by the AO, the PO should have ceased calling further evidence, and what should have followed is a plea in mitigation where the Applicant would say something and/or call evidence in mitigation, seeking a lenient punishment. On the other hand, Mr Lam relied on §4.51 to argue that the presentation of evidence by the PO after a guilty plea is permitted. I will return to these points later. 33.Naturally following the “Plea of guilty” section is the “Plea of not guilty” section, which comprises §§4.55 and 4.56. §4.55 explains that a not guilty plea will be entered, i.e. if the accused pleads not guilty or refuses to plead or remains mute in the proceedings. §4.56 says the PO will then present his case and state the witnesses and documentary evidence he intends to present at the hearing, i.e. the PNG Procedure is triggered. 34.§§4.57 to 4.81 set out the PNG Procedure. As said, the shape of the disciplinary hearing is broadly similar to that of criminal proceedings, except that other than the accused and the prosecution, the AO will also be entitled to call witnesses. The PNG Procedure is explained in a number of sections, the headings and broad summaries of which should suffice in outlining the procedure:
D. The Disciplinary Proceedings against the Applicant 35.The charge sheet was served on the Applicant on 31 August 2016. He was charged with two disciplinary offences – the unauthorised communication offence under Rule 239(1)(h) and the general breach of duty offence under Rule 239(1)(p). 36.The first charge reads “without proper authority communicates with any ex-prisoner or with a relative, or friend of any prisoner, or ex-prisoner contrary to rule 239(1)(h)(i) of the Prison Rules”. The particulars of the offence read “You, being an Assistant Officer II of Correctional Services Department, did, sometime between 2013 and 2014, without proper authority communicate with a [Ms Wong], who was the friend of the then prisoner, a [Mr Tsoi]”. 37.The second charge reads “commits any breach of duty contrary to Rule 239(1)(p) of the Prison Rules”. The particulars read “You, being an Assistant Officer II of Correctional Services Department, in or about early 2014, failed to inform your Head of Institution the solicitation or incitement made to you by a then prisoner, namely [Mr Tsoi], to introduce tea leaves which were contrabands into Pak Sha Wan Correctional Institution, and thus committed a breach of duty on the Correctional Services Department Standing Procedures 07-02(1) which stipulates [provision then set out]”. 38.There is no dispute that the Applicant did commit both offences, where he has pleaded guilty to the charges. 39.The disciplinary proceedings were triggered by a referral from the Independent Commission Against Corruption (“ICAC”). In 2014, the Applicant was investigated by the ICAC for suspected corruption offences arising from the same factual circumstances which underpinned the two disciplinary offences. In 2015, the ICAC closed the investigation with the conclusion that there was no evidence to substantiate the criminal offences, but decided to refer the case to the CSD. 40.While the charge sheet of the disciplinary offences was served in August 2016, the Applicant did not attend the 1st hearing until June 2017. The Applicant had refused to attend all the five hearings scheduled before that on medical grounds. 41.In the end, seven hearings were actually conducted: 1st Hearing (8 June 2017), 2nd Hearing (21 June 2017); 3rd Hearing (22 August 2017); 4th Hearing (29 September 2017); 5th Hearing (27 October 2017); 6th Hearing (23 February 2018); and 7th Hearing (30 May 2018). The long gap between the 5th Hearing and the 6th Hearing was caused by another period of sick leave. 42.The Applicant applied for legal representation in the 1st Hearing. The AO rejected the application in the 2nd Hearing. Apparently the reason for rejection was that the disciplinary offences even if substantiated would not warrant a punishment as severe as a dismissal. He was recorded to have said to the Applicant that:
43.The Applicant’s plea was taken at the 3rd Hearing. He pleaded ‘not guilty’ to both charges. 44.The PO started to present his evidence against the Applicant in the 4th Hearing. He proposed to call seven prosecution witnesses: the two ICAC officers who interviewed the Applicant on 19 June 2014 for the suspected corruption offences, two other ICAC officers who interviewed Ms Wong on the same day in connection to the same offences, Ms Wong, and two CSD officers who interviewed the Applicant on 15 September 2015 for the two disciplinary offences. The PO also proposed to adduce five exhibits: the Applicant’s ICAC interview records, Ms Wong’s ICAC interview records, the Applicant’s CSD interview records, and two other exhibits related to the Applicant’s work in CSD at the material time. 45.The first prosecution witness called was a Mr Fung (“PW1”), who was the CSD staff in charge of questioning the Applicant in the CSD interview. But the 4th Hearing was adjourned in the middle of PW1’s testimony, in order to allow the Applicant to see a doctor. 46.When PW1 continued with his evidence in the 5th Hearing, he produced all the 5 prosecution exhibits. The Applicant challenged the admissibility of Ms Wong’s ICAC interview records and his own CSD interview records. The hearing was adjourned for him to seek professional (presumably legal) opinion on the admissibility of those two exhibits. 47.Before the 6th Hearing was convened, the AO, on his own motion, reversed his earlier decision which rejected the Applicant’s application for legal representation. The decision was first made known to the PO on 16 January 2018, on which date a hearing was originally scheduled but the Applicant failed to appear. The PO made an application for trial in absentia in view the Applicant’s frequent failure to appear in hearings. The AO thought the appropriate course was to allow the Applicant to be legally represented based on a number of reasons. 48.The AO’s decision and reasoning was latter made known to the Applicant through a “Special Notice” dated 26 January 2018 issued by the PO. The body of the notice reads (as translated, underlining in original):
49.That Special Notice was served on the Applicant on 1 February 2018. On 7 February 2018, the Applicant wrote a statement to the AO to reverse his plea. He said he would plead guilty to the charges in the next hearing, i.e. the 6th Hearing which was conducted on 23 February 2018. 50.The 6th Hearing started by the PO’s reading out the Applicant’s statement to reverse his plea. This was followed by the AO’s summary of his three reasons for allowing legal representation, which were already canvassed in the Special Notice. The AO also asked again whether the Applicant wished for the hearing to be adjourned so that it could be restarted after he had arranged for legal representation, but that the hearing would continue if he decided not to have legal representation. The Applicant confirmed he did not need legal representation (no doubt because he had already said he would plead guilty to both charges). In passing, I would note that, whilst the AO had changed his mind about legal representation, and had given brief reasons as to why, it may be that the Applicant would not have fully appreciated those points (all the niceties of what might happen next) once he had indicated his intention to change his plea to one of guilty to both charges 51.As shown by the hearing transcripts, the 6th Hearing then proceeded as follows:
52.At this point, it is impossible to resist pointing out that, at least at first blush, something appears to have gone wrong with the procedure. Notwithstanding that the Applicant had changed his plea to one of ‘guilty’, the AO (1) invited the PO to present the prosecution case, (2) then invited the Applicant to present his defence case including by calling witnesses, (3) then invited the PO to make prosecution closing submissions, (4) then invited the Applicant to make his defence closing submissions, (5) then effectively rebuked the Applicant for moving to mitigation instead of seeking to advance submissions in support of a defence, (6) then purported to consider the evidence and the closing submissions, before (7) reaching a verdict on those materials, when clearly most of those steps were inapt and certainly no verdict was required following a guilty plea. 53.On the 7th Hearing, the AO gave reasons for his “verdict”. In doing so, the AO noted that the Applicant had changed his plea to one of guilty, and had agreed to the particulars of both charges, but then immediately reminded himself of the burden of proof and the standard of proof which he would apply to his analysis of the evidence. 54.After giving reasons for his verdict, the AO then asked the Applicant to make a plea in mitigation for both charges. The Applicant gave very brief mitigation for both charges. Thereafter, the AO imposed a “severe reprimand” for Charge 2. But he said Charge 1 (unauthorised communications) was very serious and his punishment powers were insufficient and thus he would refer it to the Commissioner. 55.As the AO explained it orally in the 7th Hearing, the seriousness lay in how the Applicant became acquainted with Ms Wong in the first place and their continued relationship. But since the Sentencing Decision (setting out the punishment for Charge 1) was made by the Commissioner, I shall focus on what information was laid before him rather than what the AO said in the hearing – though they overlap. E. The Sentencing Decision made by the Commissioner 56.The decision was made by way of an internal minute within the CSD. As is usual in government departments, the minute was drafted as a proposal or a recommendation made by the case officer to seek the endorsement from more senior officers. The minute was prepared by an officer at the rank of “SS(HR)”, ultimately addressing the Commissioner but passed through two more levels of officer along the chain of command. The two senior officers signed to support the recommendation while the Commissioner signed and expressly recorded his approval of the recommendation. None of the them added further comments besides signalling their support or approval. The recommendation was approved by the Commissioner on 11 June 2019. 57.At §12 of the minute, what the AO said in the 7th Hearing to explain the seriousness of the Charge 1 was quoted in part:
58.The officer’s analysis as to why a recommendation of dismissal without retirement benefits would be warranted runs from §§15-22, under the section headed “gravity of the misconduct/offence”. It may be said that these paragraphs are a more elaborate or expanded version of what the AO said which had already been quoted. §15 is the introductory paragraph. §§16 to 22 read (where ‘AOII LAI’ refers to the Applicant):
59.The internal minute then goes on to set out the disciplinary and service records of the Applicant, the mitigating factors, the customary level of punishment and concludes with the recommendation of dismissal without retirement benefits. 60.The mitigating factors noted included the Applicant’s claim that: (1) he had no contact with Ms Wong after the incident, therefore the same scenario would not happen again; (2) he promised amend his way after reflecting on his own; (3) he had expressed deep remorse; (4) he pleaded guilty to the charges with the hope to receive less severe punishment; and (5) he would like to serve in the CSD for the rest of his service. The minute then stated:
61.The precedent cases considered in the minute include two cases where the punishment awarded was “compulsory retirement” (though it seems from the minute at §30 that each case involved a removal punishment of compulsory retirement with retirement benefits. Having considered that, the minute identified that a removal punishment should be considered as the appropriate punishment to be awarded. 62.The recommendation of the award of punishment was phrased as follows:
63.From the minute, there does not seem to be any overt consideration of whether the removal punishment should be one imposed with retirement benefits or without retirement benefits – or why the latter. 64.The Applicant was informed of the Sentencing Decision by letter dated 12 June 2019. No reasons are given in the letter. But the reasons were given to the Applicant by letter dated 12 September 2019 upon the request of the Applicant. The reasons set out in the 12 September 2019 letter essentially replicate what is set out in the internal minute starting from the part already quoted above, except for some cosmetic changes. F. Sources of Aggravating Materials 65.Before moving on to the appeal and the Appeal Decision, it is convenient to digress from the chronology at this juncture, in order to set out the sources of the facts relied upon by the Commissioner as aggravating factors in the Sentencing Decision. 66.To recap what is quoted above, what was considered by the Commissioner (and earlier by the AO) as aggravating features could be summarized in three broad points:
67.As is reflected in the language, point (3) is perhaps what is considered as the most damaging amongst all the aggravating features in the internal minutes. The Applicant’s approach to Ms Wong was almost portrayed in a predatory manner. The picture painted is one of a CSD officer who took advantage of his position in approaching a woman whom he knew to be the wife of a prisoner in a pre-planned manner in order to develop a romantic relationship with her. The writer of the minute described such act as immoral, unlawful and bringing the CSD or even the entire government into disrepute. These points were all endorsed by the Commissioner. 68.Point (2) – that the Applicant knew that Ms Wong and Tsoi were friends as early as 2009 – was also given some emphasis. 69.Mr Tsui disputes the factual correctness of some of the aggravating factors relied upon by the Commissioner, which I will revisit in the context of Ground 3 below. 70.In any event, as I understand it, Mr Tsui’s main complaint lies in that most of the aggravating matters relied upon by the Commissioner – be they correct or not – were derived from materials which were only admitted after the Applicant had pleaded guilty, in particular Ms Wong’s ICAC interview record. He said it would be unfair to the Applicant for the Commissioner to rely on them in sentencing the Applicant. 71.Further, I think it can be said that, whilst the justification subsequently offered for looking at this material was to examine the appropriate context of the matters giving rise to the charges, there is a real flavour that ultimately the penalty award imposed was significantly driven by matters which were not themselves the direct subject of the charge but related to a much wider picture of events over a much longer period of time. 72.There is no dispute that the aggravating features relied on by the Commissioner came from the two ICAC interviews. Both point (2) and point (3) – how the Applicant approached Ms Wong back in 2006, and that the he knew that Ms Wong and Mr Tsoi were friends as early as 2009 – came from Ms Wong’s ICAC interview record. 73.In her ICAC interview, Ms Wong said that:
74.Ms Wong’s account is not corroborated by the Applicant’s evidence. In his ICAC interview, he said he met Ms Wong in around 2008 or 2009 but he did not remember how he met her. In his CSD interview, he said he could not remember how or when he met Ms Wong. But he said that he did not know that she was a friend of a prisoner when they met. He also said that he was not sure whether Mr Tsoi and Ms Wong knew each other. 75.Point (1) – the content of communications – came from the ICAC interview records of both the Applicant and Ms Wong. Those concerning what Ms Wong asked of the Applicant came from the Applicant’s ICAC interview. That the Applicant told Ms Wong that Mr Tsoi asked her to send him letters came from Ms Wong’s interview. 76.As already said, the two ICAC interview records were produced by PW1 in the 5th Hearing alongside other exhibits but only admitted into evidence in the 6th Hearing. G. The Appeal Decision 77.By letter dated 23 June 2019 issued by the Applicant to the Civil Services Bureau, the Applicant appealed against the decision of the Commissioner to impose the dismissal punishment on him. He indicated that he would provide full grounds of appeal subsequently. The Applicant was later legally represented in the appeal. 78.I note that the appeal eventually made by the legal representatives on 29 June 2020 was made against both conviction and sentence of Charge 1 (though the current judicial review only concerns the Sentencing Decision). The grounds of appeal against the punishment included the argument that:
79.The appeal was conducted on paper. There was no oral hearing, but only the exchange of written correspondence between the Applicant and the Secretary. Therefore, notwithstanding the possibility provided for in the rules, the Secretary did not direct that the whole or any part of the evidence be taken again or that additional evidence be taken. 80.By memorandum dated 4 February 2021, the Commissioner provided his comments/views on the grounds of appeal. It can be noted that the Commissioner recognised that the continuation of the hearing by the AO after the Applicant’s guilty plea meant that “it might be arguably that some of the procedures set out in paragraphs 4.50, 4.52 to 4.54 of the Manual had not been followed by the AO during the hearings”. However, the Commissioner opined that no prejudicial effect had been caused (for reasons he then explained). The views of the Commissioner were summarised and provided to the Applicant’s solicitors for their response. The response was apparently provided on 7 February 2022, repeating similar grounds of appeal as had been earlier put forward. 81.By letter dated 22 March 2022, the Secretary upheld both conviction and sentence of Charge 1. 82.Similar to how the Sentencing Decision was made, the Appeal Decision was made by way of an internal minute which was prepared by a junior officer with his or her reasoning and recommendation for the approval of the Secretary. The Secretary endorsed the recommendations without adding any comments of his own. Attached to the minute were numerous enclosures, but I have not been provided with them (at least not in that form). 83.§10 of the internal minutes summarised the aggravating features relied upon by the Commissioner in awarding the punishment of dismissal without retirement benefits. Mr Lam, by comparing this paragraph with CSD’s internal minutes submitted for the Commissioner’s approval, said that the Secretary or the CSB did not consider all of the Commissioners/CSD’s observations or conclusion as material. But §10 was in fact purporting to be a summary of what the Commissioner considered as relevant and materials in reaching the sentencing decision. I think §10 is a fair summary, albeit that it does not include each and every detail captured in the CSD’s internal minutes.
84.Paragraph 13(b)–(g) set out the Applicant’s grounds of appeal against the sentence:
85.The Secretary rejected those grounds based on analysis as contained in §16 of the internal minutes. In my summary, those grounds were that:
86.It would fair to say that the Secretary has endorsed the reasoning of the Commissioner based on his finding of facts drawn from evidence before him, which evidence the Secretary also considered relevant. H. Ground 1 87.Ground 1 boils down to (a) whether the actual procedure adopted by the AO departed from those envisaged by the Prison Rules and/or the SDM; and (b) if so, whether such departure produced substantive unfairness to the Applicant. 88.Mr Lam said that the procedures were proper and in any event, there was no substantive unfairness. 89.His analysis that the procedures were proper runs in three steps:
90.At the oral hearing, Mr Tsui raised a new point and argued that the procedures adopted were in breach of Rule 245(1). I will deal with this point later in this Judgment. Putting that aside, Ground 1, as it is originally framed in the Form 86 or in the written submissions, is not a legality challenge. The complaint is not that the AO has no power as such to call further evidence after the accused has pleaded guilty under Rule 245, but that the procedures adopted were in breach of the SDM. Ground 1 challenges the Commissioner’s breach of his own internal policy, not the law. 91.Mr Lam said the procedures adopted were not in breach of the SDM, but were an exercise of discretion by the AO in deciding what procedures to use in the circumstances not covered by the SDM. He sought to pin Mr Tsui to §15 of his written submissions in support of the contention that Mr Tsui had agreed that that the SDM does not provide for the procedures in the case of a plea reversal. At §15 of his written submissions, Mr Tsui said:-
92.But §15 is not consistent with Mr Tsui’s overall written or oral submissions for Ground 1. For example, §23 of his written submissions reads:
93.The reference to §4.52 is likely a typographical error; Mr Tsui was obviously referring to §4.54. I also ascribe no particular legal meaning to the phrase “legitimate expectation”. The overall tenor of Mr Tsui’s oral submissions (if not his written submissions) was clear – to comply with the SDM, and once the AO has accepted the Applicant’s guilty plea, the calling of prosecution witnesses or production of prosecution evidence should cease immediately and the proceeding should go to the stage of mitigation. In other words, the PG Procedure provided by the SDM is applicable regardless of whether the guilty plea was tendered at the beginning or only at a later stage of the trial. 94.I agree with Mr Tsui. On a proper reading of the SDM, the PG Procedure or the PNG Procedure will be applicable whenever the corresponding plea is entered. I do not agree with Mr Lam that §§4.50 to 4.74 of the SDM only cover the circumstances where the plea tendered at the beginning is adhered to throughout the trial, or that it has no application if there is a reversal of plea in the middle of the trial. Mr Lam’s reading is not supported by the text of the relevant paragraphs in the SDM:
95.The text of the SDM itself does not support Mr Lam’s reading. Nor did he put forward any practical, logical, or fairness concerns which would suggest that the PG Procedure the PNG Procedure should only be applicable if the corresponding plea entered into at the beginning of the trial is maintained throughout. He said there was a discretion for the AO to decide what procedures to use, but he did not attempt to explain why the AO exercised his discretion (assuming that he did have such discretion) the way he did. He did not say it was practically difficult to cease the calling the prosecution evidence at that point. Nor did he suggest that fairness would demand the PNG Procedure to continue. Indeed, his express position at the oral hearing was that he did not know why the AO acted as he did. 96.The fact that the prosecution was in the middle of presenting prosecution evidence is simply a feature that may occur when an accused decides to reverse his plea in the middle of a trial. This in itself is not a reason why the prosecution case should be allowed to continue to run once it has started. 97.I have come to the conclusion that the actual procedure adopted by the AO has departed from the normal course as set out in the SDM. No justification was provided as to why the normal procedure was departed from. 98.Turning to the question of whether the departure from the SDM has resulted in any unfairness to the Applicant. Mr Tsui submitted that the improper procedure adopted by the AO has produced substantive prejudice to the Applicant. I think his submissions could be broadly summarized as follows:
99.Mr Lam’s replies were as follows:
100.But, I agree with Mr Tsui that the improper procedure adopted by the AO has resulted in real and substantive prejudice to the Applicant in the sentencing stage.
101.Ground 1 is made out. 102.Given my conclusion on Ground 1, it is not necessary to discuss the new point raised by Mr Tsui at the oral hearing. I shall cover the point briefly. Mr Tsui submitted that Rule 245(3) requires the AO (being a Superintendent) to refer the case to the Commissioner when he has formed the view that his powers of punishment would not be sufficient if the charge is established on consideration of the report and the written statements. He said that the AO had already formed the view that that his powers of punishment may not be sufficient at the time when he granted the application for legal representation in early 2018, as evident in the reasons he gave. So, it was at the point when he should have referred the case to the Commissioner. But he did not, in contravention of Rule 245. 103.Though I see some arguable force in the point, but being one which is also potentially fact-sensitive, I agree with Mr Lam that the Applicant should be barred from raising this point which was only raised for the first time at the hearing. I. Ground 2 104.Ground 2 is closely connected to Ground 1. To recap, the Applicant’s case was that the AO had either misunderstood the established procedures set out in the SDM, or that he had deliberately departed from the SDM in order to admit the five prosecution exhibits to aggravate the offence. The latter case would suggest a real danger of bias on the part of the AO. 105.The bulk of Ground 2 is but a logical extension of Ground 1. There is no evidence to suggest that the AO deliberately adopted a procedure in breach of the SDM. In all likelihood, the AO seems to have misunderstood the SDM. This is perhaps most clear from the AO’s on the one hand expressly accepting a guilty plea on the basis of the particulars agreed by the Applicant, then going on to consider a “verdict” as to whether the charge was “proven”, having reminded himself of the burden and standard of proof. 106.But, as Mr Lam pointed out, this would add no further dimension to Ground 1. If necessary, I would also find that Ground 2 is made out (in that the AO misunderstood the procedures set out in the SDM). J. Ground 3 – Irrationality 107.Ground 3 is that imposing the punishment of dismissal without retirement benefits was Wednesbury unreasonable for one or a combination the following reasons:
108.Whilst all the points were grouped under the umbrella of unreasonableness, some of them do not easily fit into the what might be usually framed as a conventional irrationality challenge. 109.The first point is a procedural challenge. It is also a re-run of Ground 1, with which I have already dealt. There is not much utility in assessing whether the decision-maker’s evaluation of the evidence and the sentence imposed the based on the evidence is reasonable or not, given my finding in Ground 1. 110.For completeness, I will briefly consider other points under the irrationality head on the assumption that the evidence relied upon by the Commissioner or the Secretary, especially the two ICAC interview records, could have been and was properly admitted into evidence (and without breach of any public law requirement). 111.As to the facts said to be “fabricated” against the Applicant, most of them were either factual inferences or evaluative findings endorsed by the Commissioner and Secretary, based on the evidence from the prosecution exhibits. Mr Tsui criticized the Commissioner for giving full weight to Ms Wong’s account in her ICAC interview as to how the two became romantically involved. It was then inferred that the Applicant had approached Ms Wong in a pre-planned manner to develop an intimate relationship with her back in 2006, knowing that she was connected to a prisoner where the Applicant worked. From there flow the comments that the Applicant had a chaotic private life, had immoral personality traits, had taken advantage of his position, breached the trust reposed in him, had conflicts of interest, and affected the prison security. Mr Tsui also complained that the Commissioner concluded that the Applicant knew that Ms Wong and Mr Tsui knew of each other based on Ms Wong’s evidence that the Applicant was in her place when Mr Tsui came to visit her in 2009. There were also more minor complaints as to the reference that the communications between the couple concerned “illicit plans”, that they repeatedly engaged in discussion concerning Mr Tsoi, etc. 112.These are not facts “fabricated” by the Commissioner or Secretary, but are unfavourable inferences or evaluative findings drawn against the Applicant. They are capable of being reasonably supported or inferred from the prosecution evidence. 113.Mr Tsui said adverse inferences should only be drawn if they are irresistible, which language is reminiscent of the criminal standard of proof. But it is well established that the civil standard of proof applies in disciplinary proceedings: R (Kuzmin) v General Medical Council [2019] 1 WLR 6660. The inferences drawn by such a tribunal need not be irresistible. 114.That said, a tribunal’s reasoning process, including the drawing of inferences, is still subject to the scrutiny of the judicial review court through the lens of irrationality. But irrationality is a high threshold. It is not the function of the Court to interfere with a tribunal’s factual findings or inferences drawn unless the findings or inferences are wholly unsupported by evidence: see Yeung Cheong Fat v Public Service (Discipline) Investigation Committee [2004] 4 HKC 462. I do not think it was irrational in the public law sense for the Commissioner to draw those inferences as he did. 115.But Mr Lam did concede that there were some factual inaccuracies which featured in the Sentencing Decision and the Appeal Decision.
116.I agree with Mr Lam that those minor inaccuracies had played no material part in the Commissioner or the Secretary’s reasoning. 117.On taking into account matters outside the offence period, as pointed out by Mr Lam, in the absence of express or implied prescription or prohibition by the statue, a decision maker is entitled to the take into account factors he considers relevant, and to accord with weight he sees fit, subject to the irrationality challenge: M v Permanent Secretary for Security [2019] HKCA 507, §12. There is no general rule to prevent the Commissioner or the Secretary from taking into matters outside the offence period in the sentencing stage. I agree with Mr Lam that it was not irrational for the Commissioner to consider the Applicant’s relationship with Ms Wong before 2013 because that is clearly a relevant consideration in assessing the Applicant’s vulnerability to conflicts of interests, his integrity as a CSD officer and whether he was suitable to continue working in the CSD. I also agree that it was potentially relevant to an assessment of the seriousness of the conduct to consider whether the impugned communications were isolated or part of an ongoing pattern, and in what context they were made. Nor would I say that the Commissioner was necessarily irrational in according too much weight to those matters. But I have already made the point that there is a strong flavour that the heaviest penalty was awarded not just because of the seriousness of the offence seen in context, but was significantly driven by a wider view of the Applicant’s character taking real account of events falling well outside the circumstances giving rise to the actual charges. 118.I also agree with Mr Lam there is no substance in the so-called ‘double jeopardy’ point. Although the background leading to Charge 1 and Charge 2 are broadly connected, the two charges target different conduct. Charge 1 targets the unauthorised communication between the Applicant and Ms Wong. Charge 2 targets the Applicant’s failure to report Mr Tsoi’s solicitation to introduce contraband into the prison. In any event, there could be no real prejudice to the Applicant even if some sort of “totality principle” is to be applied in awarding punishment for both charges. The significance for severe reprimand imposed for Charge 2 has been practically reduced to nil, now that the Applicant was to be dismissed without retirement benefits for Charge 1. 119.There is also no real merit in the argument that the punishment of dismissal without retirement benefits was disproportionate to the offence committed. 120.Mr Lam drew my attention to the principle that the Court should not lightly interfere with a sentencing decision passed by professional disciplinary bodies:
121.As I understand it, the disproportionality is said to have arisen from either the Commissioner’s failure to take into consideration that the Applicant and Ms Wong were relatives through the connection of their son, or by comparison to other cases. 122.I do not agree with Mr Tsui’s submission that the relationship between Ms Wong and the Applicant was a mitigating factor which would reduce the Applicant’s unauthorized communication with her to a technical breach. For the Commissioner and the Secretary to have seen the cohabitation or close relationship between the two as giving rise to an aggravating factor was a rational view to take (even if that view would not be shared by everyone). 123.Nor can the Applicant gain much mileage by comparing his sentence with that passed in other cases. Whilst the Commissioner and the Secretary may look to other penalties imposed in similar cases, such previous cases are not binding as such, and the Court will only interfere where it is shown by reference to earlier penalties that the present penalty imposed is irrational: see Chan Kam Choi at §§17-18. 124.Mr Tsui pointed to two cases (without identifying them by case numbers or other identifiers) where he said the CSD staff concerned had committed more serious conduct but were only awarded compulsory retirement. The two cases may be those referenced in the internal decision-making minutes. In the first case, the staff member carried out pecuniary transaction with a prisoner for settling gambling debts and subsequently contacted the same prisoner after his release without approval. In the second case, the staff member was solicited to introduce cigarettes into the prison in exchange for pecuniary gain and he failed to report the matter to his Head of Institution. That staff member then communicated with the same prisoner’s mother without authorization and claimed himself to be a friend of that prisoner. 125.Though perhaps a harsher decision, I cannot see how the Sentencing Decision could be shown to be irrational by reference to the two cases relied upon by Mr Tsui. Nor was it irrational in the overall circumstances for the Commissioner to impose dismissal without retirement benefits in light of the factual findings he has made. I have already briefly mentioned that the minutes do not seem to show express consideration whether to impose a removal penalty with retirement benefits (as opposed to a removal penalty without retirement benefits). But, I also note that the view was taken and expressed in the internal documentation that the circumstances of the case warranted the heaviest potential punishment, including as a deterrent to others. 126.If necessary, I would find that Ground 3 is not made out. K. Were the Procedural flaws “cured” in the Appeal Decision? 127.As I already alluded to earlier, the Applicant did not launch an independent attack on the Appeal Decision. What is said is that the errors made by the Commissioner in making the Sentencing Decision were endorsed rather than corrected by the Secretary in the Appeal Decision. The Secretary endorsed the Commissioner’s Sentencing Decision in terms of both the reasoning and the evidence or factual findings relied upon. 128.Given my findings in respect of Ground 1 and Ground 2, both the Sentencing Decision and the Appeal Decision should fall away. 129.But Mr Lam argued that any procedural flaws in reaching the Sentencing Decision were “cured” in the Appeal Decision. He said that the Secretary considered the Applicant’s appeal against the Sentencing Decision on a de novo basis. Even if there were any irrelevant factors or improper inferences that had been considered by the Commissioner in reaching the Sentencing Decision, any defect as such would have been cured by the Appeal Decision. 130.He said that the appeal was conducted in a procedurally fair manner. All available documents were disclosed to the Applicant. The Applicant was given sufficient opportunity to make representations and to have the last word. The Appeal Decision was supported by carefully considered reasons, which covered all the Applicant’s key complaints. 131.There is no clear or absolute rule as to whether the defects in natural justice or procedural unfairness appearing at the original hearing could be cured through subsequent appeal proceedings: see Calvin v Carr [1980] AC 574. 132.In the circumstances of the present case, I do not agree that such procedural impropriety which has tainted the Sentencing Decision was “cured” in the Appeal Decision. I do not agree that the appeal could be said in the circumstances of this case to have been conducted on a de novo basis. Under Rule 255H, the Secretary has power to accept in whole or in part the record of the evidence already taken, or to direct that the whole or any part of the evidence be taken or that additional evidence be taken. In the present case, the Secretary had accepted all the record of evidence taken by the AO. The appeal was conducted on paper rather than by a re-hearing (in the sense of taking any new evidence, or any calling of materials, as might be subject to challenge etc). 133.The very nature of the error and procedural impropriety leading to the Sentencing Decision almost necessarily meant that it could not be cured on the appeal, unless a fundamentally different approach had been adopted. The procedural error in the proceeding before the AO was not cured. L. Result 134.The application is allowed based on Ground 1 (and, if necessary, Ground 2). 135.I grant the following relief:
136.Though I do not think it necessarily helpful to proscribe how that reconsideration should take place, the Commissioner should of course take into account the matters I have dealt with above, and in particular why I have thought it necessary and appropriate to quash the Sentencing Decision. It may be that the procedure has in effect to be taken back to the point where the Applicant has pleaded guilty to the charges on the basis of the particulars as formulated. It was at that point at which the public law errors occurred. How matters are taken from that point without public law error is a matter for the decision-maker, not the Court. For the avoidance of doubt, I say nothing about what would be the appropriate sentence reached on a process which satisfies the requirements of public law. 137.In light of my decision, and in the broad exercise of my discretion as to costs, I see no reason why the costs should not follow the event. Therefore, I order the Applicant’s costs to be paid by the respondents, to be taxed if not agreed.
Mr Antonio Tsui, instructed by Ivan Tang & Co., for the applicant Mr Aaron Lam, Senior Assistant Law Officer (Civil Law) (Ag.), of the Department of Justice and Mr Jonathan Ip, instructed by the Department of Justice, for the respondents |
Cases cited in this judgment