Chan Kin Man v. Commissioner of Police

HCAL 2139/2023

[2023] HKCFI 3145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2139 OF 2023

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J U D G M E N T

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A.  Introduction

1.The Applicant is a former senior police constable of the Hong Kong Police Force.

2.In disciplinary proceedings before a Police Force Disciplinary Tribunal, he faced three charges – Charges A, B and C – of ‘conduct calculated to bring the public service into disrepute’. He was acquitted on Charge A, but convicted on Charge B (after trial) and Charge C (on his own guilty plea). He was awarded ‘Severe Reprimand’ with the additional punishment of ‘Compulsory Retirement with Full Retirement Benefits’.

3.Following the Applicant’s appeal by way of petition to the Commissioner of Police, the delegated Deputy Commissioner of Police (Management) (“DCP MAN”) confirmed the conviction on Charge B, but varied the terminatory award to one of ‘Dismissed without Retirement Benefits from the Force’ (“Decision”).

4.By Form 86 dated 29 November 2023, the Applicant seeks leave to apply for judicial review so as to quash the Decision, on the two proposed grounds of review that (1) there was a procedural unfairness, when the Applicant was not able to secure a fair trial, and (2) the increased penalty award on Charge B was irrational.

5.The Form 86 does not seek an oral hearing. Having considered the materials filed, it seems to me to be appropriate to determine this case on the papers.

6.This is my Judgment.

B.  Background

7.In December 2019, the Applicant was charged with three counts of ‘conduct calculated to bring the public service into disrepute’. All three charges arose on the complaint of a Ms Wan Ka-Po (“Ms Wan”).

8.In passing, I note that Wan had apparently originally made a criminal complaint in 2016, but no criminal proceedings were ever pursued against the Applicant.

9.The particulars of the three disciplinary charges were as follows (sic):

Charge A:  … you are charged that sometime between 2012 and 2015 in Hong Kong, whilst you were a serving police officer, you did solicit immoral activities, namely taking indecent photos in underwears and in naked with charges, from female [Ms Wan], such act being conduct calculated to bring the public service into disrepute.

Charge B:  … you are charged that sometime in 2015 in Hong Kong, whilst you were a serving police officer, you did have sexual relationship, at a charge, with female [Ms Wan], such act being conduct calculated to bring the public service into disrepute.

Charge C:  … you are charged that on 2016-08-21 in Hong Kong, whilst you were a serving police officer, you did use government property for personal purpose, namely you falsely signed $100,000-HKD on a cheque belonged to “Tuen Mun District Junior Police Call Council” and sent a photo copy of it to female [Ms Wan] via “Whatsapp”, such act being conduct calculated to bring the public service into disrepute.

10.Though the Applicant originally pleaded not guilty to all three charges, he subsequently changed his plea to one of guilty on Charge C. That charge is not central to the present intended challenge, and it need not be considered further.

11.On 15 January 2020, the Applicant appeared before the Disciplinary Tribunal comprising an Adjudicating Officer (“AO”). On that occasion, the Prosecution confirmed that there were no key prosecution witnesses to testify in the disciplinary proceedings. In other words, the original complainant Ms Wan was not going to be called as a witness.

12.On 5 November 2020, the disciplinary proceedings commenced and the Applicant pleaded not guilty to all three charges (though, as I have mentioned, he later reversed his plea on Charge C).

13.Though the AO had no power to compel a civilian witness to attend the disciplinary hearing, compulsion might have been achieved by an application to the Court of First Instance (“CFI”) for a subpoena to ensure her attendance. But, Chapter 3 of the Force Discipline Manual (“FDM”) identifies that such action to request a subpoena should only be taken in consultation with ‘SP Discipline’ and if: (a) there is no likelihood to secure a conviction without the evidence of the civilian witness(es); (b) the charge(s) is so serious that the defaulter, if convicted, would in all likelihood face a terminatory award; and (c) the civilian witness(es) is likely to come up to proof if he is compelled to attend the hearing. No application to the CFI was made for a subpoena to seek to compel Ms Wan’s attendance at the disciplinary proceedings.

14.In this context, reference can also be made to §5 of Annex M (Civilian Witnesses) to the FDM, which provides:

Notwithstanding the possibility of compelling a civilian witness by subpoena to attend a disciplinary hearing, such hearing should be allowed to continue if there is other evidence to prove the offence. As a general rule, a disciplinary hearing should continue if the gravity of the case does not warrant subpoena action, but there is other supporting evidence to secure a conviction. For example, while a civilian witness is absent from the hearing but the witness statement is available, the Adjudication Officer may still admit the statement as evidence and will adjust the “weight” to be applied to this evidence.

15.This provision was later expressly acknowledged and applied by the AO.

16.On 27 November 2020, the Applicant’s Counsel made an application for a permanent stay of proceedings on the abuse of process ground, because the key prosecution witness would not testify in the forthcoming disciplinary hearing, which would prevent a fair trial if the prosecution were to be wholly based on hearsay evidence, with no opportunity for the defence to cross-examine the only key witness as to reliability and credibility.

17.Following further submissions, and advice from the Legal Adviser, the AO refused the application for a stay by his decision on 24 February 2021.

18.The matter proceeded to a contested hearing on Charge A and Charge B. On 18 October 2021, the AO gave his Summary of Proceedings and Judgment. That is a lengthy, 57-page document, which seems to me to identify a careful and detailed approach to the matter. Amongst other things, the AO canvassed the following:

(1)  The burden and standard of proof applied by him. The AO recognised that:

(a)  the burden of proof rested with the Prosecution,

(b)  the standard of proof is the civil standard, and

(c)  a more serious allegation must be regarded as being more inherently improbable, and will need more compelling evidence to prove it on a balance of probability.

(2)  The elements to be proved on each of the charges.

(3)  The various submissions made and the legal advice given on, and the ruling regarding, the application for a stay of proceedings. The stay was refused.

(4)  The various submissions made and the legal advice given on, and the ruling regarding, the Applicant’s objection to the tendering of his video-recorded interview (“VRI”) and Statement. The objection was dismissed.

(5)  The various submissions made and the legal advice given on, and the ruling regarding, the Applicant’s objection to calling a prosecution witness, who was the taker of Ms Wan’s statements. The AO ruled that the issue was mainly about the admissibility of Ms Wan’s statements, and the objection was rejected. But the AO stated that he would adjust the weight of the evidence as appropriate to maintain fairness at the hearing.

(6)  The Prosecution case, including a detailed review of the examination and cross-examination of the prosecution witnesses.

(7)  The Defence case, including a detailed review of the examination and cross-examination of the Applicant and one defence witness.

(8)  The Final Submissions by the Prosecution.

(9)  The Final Submissions by the Defence.

(10)  The Legal Adviser’s legal advice on the closing submissions.

(11)  The Reasoning for Judgment.

19.The Reasoning included, amongst other aspects, the following:

(1)  As the Defence case focused mainly on the credibility of the Applicant and his defence witness as the backbone of defence, the AO would employ his profound experience and professional knowledge in the Police Force to engage in the fact-finding exercise on the credibility and reliability of their evidence.

(2)  The Applicant was not an honest and reliable witness – a conclusion explained in detail by reference to the inconsistencies in the Applicant’s evidence, including as against agreed exhibits, and his evasive nature.

(3)  There being no corroborative evidence from the Prosecution side as to Ms Wan’s two witness statements, and because the Applicant did not have any chance to cross-examine Ms Wan about her version, no weight would be given to the statements “in a fairness consideration”.

(4)  The AO also warned himself not to draw any undue influence from those two statements.

(5)  The Prosecution had not made out the first element of Charge A, and there was no need to examine the second element. There was insufficient evidence on the balance of probability to prove Charge A as a whole.

(6)  There was sufficient evidence, on balance of probability, to substantiate the first element of Charge B that on 21 December 2015, i.e. sometime in 2015, the Applicant did have sexual relationship, at a charge, with Wan.

(7)  In that regard, the AO did not believe that the Applicant was telling the whole truth about his dealing with Wan. There were so many discrepancies revealed between his testimony and the various exhibits, particularly for the events on 21 December 2015, and in the AO’s view, that was because the Applicant just made up stories or excuses.

(8)  There was also sufficient evidence on balance of probabilities to establish the second element of Charge B.

(9)  There was sufficient evidence to establish both elements of Charge C (on the Applicant’s own guilty plea).

20.The AO considered his power of award insufficient and referred the guilty findings of the charges to the Force Discipline Officer’s Deliberation on Disciplinary Proceedings. On 23 May 2022, the Force Discipline Officer (“FDO”) handed down his Deliberation. He stated that:

(1)  He had reviewed all the relevant papers, and agreed with the AO’s decisions, and the proceedings were conducted in a fair and impartial manner.

(2)  There was sufficient evidence to support the guilty finding on Charges B and C, and the not guilty finding on Charge A was reasonable.

(3)  The procedures were in order and the findings were safe.

(4)  As for Charge B, it is indisputable that the Applicant and Wan had sexual intercourse and the Applicant paid Ms Wan after the sexual intercourse on the same day. The issue in question was whether the money paid was for sexual intercourse or for the pre-agreed photo taking as alleged by the Applicant.

(5)  He agreed with the analysis made by the AO that the Applicant was not an honest and reliable witness, because there were many discrepancies amongst the Applicant’s testimony and the agreed exhibits, and the Applicant was being either ambiguous, evasive, shaky or he failed to answer or give proper explanations to a number of key questions, such as the fees paid to Ms Wan, the pre-agreed photo taking arrangement and his so-called romantic relationship with Ms Wan.

(6)  He was convinced on the balance of probability that it was more likely that the money paid by the Applicant to Ms Wan on the incident day included the charge for his sexual intercourse with Ms Wan.

(7)  The instant case was very serious in nature and cast grave doubt on the Applicant’s integrity.

(8)  That was powerfully aggravated by his adamant denials to the offence in the disciplinary proceedings, showing that he had no sense of remorse at all, and his claim that the incident had not attracted any public attention did not add weight to his argument for a lenient punishment.

(9)  Having considered the very serious nature, in particular Charge B, and the overall circumstances of the case, the Applicant’s police service record, disciplinary record and mitigation, he considered an award of ‘Severe Reprimand’ with an additional punishment of ‘Compulsory Retirement with Full Retirement Benefits’ for Charge B and an award of ‘Severe Reprimand’ for Charge C were appropriate.

21.In June 2022, the Applicant indicated his intention to appeal. After three extensions of time, the Applicant provided a Petition dated 12 December 2023, petitioning the Commissioner of Police not to find a conviction and/or not to issue an award of compulsory retirement in respect of Charge B. The Petition was settled by the Counsel who had represented the Applicant at the Disciplinary Tribunal before the AO. The Petition was based on three grounds of appeal:

(1)  Ground 1 – There was an error in accepting Ms Wan’s statement as evidence without her attendance at the hearing.

(2)  Ground 2 – There was an error in adopting the standard of proof without considering a higher degree of probability commensurate the gravity of the complaint.

(3)  Ground 3 – The award passed by the FDO was manifestly excessive.

22.The Petition was dealt with by the DCP MAN in his Deliberation dated 10 August 2023, which included the following:

(1)  The centrepiece of the appeal was against the guilty finding on Charge B and the terminatory punishment imposed.

(2)  The arguments advanced on Ground 1 were extremely weak, because:

(a)  when dealing with the issue, the AO had indicated he would adjust the weight of Ms Wan’s statements as appropriate to maintain fairness;

(b)  the AO clearly eventually decided to give no weight to Ms Wan’s statements, and reassured that no undue influence would be drawn from the statements;

(c)  therefore, the AO did not rely on Ms Wan’s statements in arriving at the guilty finding on Charge B;

(d)  the Applicant was not deprived of his right to have a fair trial since the Prosecution had tendered other evidence, namely the Applicant’s VRI and Statement, to support the charge;

(e)  there was no procedural defect in the handling of evidence, nor any unfairness by the AO.

(3)  The assertion on Ground 2 put forward on the standard of proof adopted by the AO was flawed, because:

(a)  after the Applicant pleaded not guilty, the AO told the parties that the burden of proof rests with the Prosecution and the standard of proof is the civil standard;

(b)  but the AO also clearly stated that in assessing the probabilities, a more serious allegation must be regarded as being more inherently improbable, and will need more compelling evidence to prove it on the balance of probability;

(c)  the same standard of proof and burden of proof were also set out in the AO’s Summary of Proceedings and Judgment;

(d)  the AO identified the key issues and explained his logic in arriving at the guilty finding for Charge B (which the DCP MAN rehearsed);

(e)  the FDO agreed with the AO’s analysis;

(f)  it is irrelevant whether the Applicant had developed an intimate or romantic relationship with Ms Wan after the incident on 21 December 2015, not least when the Applicant had agreed that at the moment he had sex with Ms Wan on that day they were not yet in a boyfriend and girlfriend relationship;

(g)  the DCP MAN agreed that, on the balance of probability, it was more likely than not that the Applicant paid Ms Wan for sexual intercourse;

(h)  further, the AO was entitled in his capacity to apply his common sense, professional judgment and practical experience to assess the evidence and issues and credibility;

(i)  there were no flaws in the AO’s application of the law of standard of proof, common sense and reasoning to justify interfering with his findings;

(j)  there were no compelling grounds capable of shifting the balance of probabilities in the Applicant’s favour.

(4)  As to Ground 3, not only did the ground of appeal have no merit, the previous award for Charge B given by the FDO was too lenient, because:

(a)  the case is very serious, where it can be noted that the Applicant first became acquainted with Ms Wan when she was merely around 15;

(b)  regardless of what the Applicant claimed about their relationship, the act of him, being a police officer, becoming acquainted with a girl of such a young age and subsequently taking photographs of her in underwear would not meet the level of conduct expected of him by members of the public;

(c)  there is no doubt that the Applicant is an amateur photographer, but the Applicant’s admission of taking underwear photos with a teenager like Ms Wan, and his evasive attitude, identified that the Applicant was neither an honest nor reliable witness and he was not telling the whole truth;

(d)  on the balance of probabilities, it appears that the Applicant used his photography skills to get to know the opposite sex, including youths and underage girls, in the name of looking for models, then fish around and exploit the girls’ financial needs for immoral purpose;

(e)  the Applicant eventually took advantage of Ms Wan’s vulnerability and immaturity, and engaged in a sexual relationship with her at a charge;

(f)  the nature of the case is far more serious and nasty than simply seeking a sexual service by remuneration;

(g)  the Applicant’s discipline, professionalism and judgment were in grave doubt, and the DCP MAN had lost confidence in the Applicant’s suitability to continue discharging his constabulary duties;

(h)  the fully justifiable and appropriate award on Charge B was ‘Severe Reprimand’ with the additional punishment of ‘Dismissal’.

(5)  Hence, the altered award imposed.

C.  Intended Grounds of Review

23.As already stated, there are two intended grounds of review relating to (1) fairness and (2) irrationality.

24.In the Form 86, those grounds are identified as follows (sic, emphasis in original):

Ground 1: Fairness

4. The first ground put forward was one of procedural fairness, in that the Applicant was not able to secure a fair trial, viz., the key witness refused to attend the disciplinary hearing, contrary to his constitutionally protected right to a fair trial under Article 10 and 11 of the Hong Kong Bill of Rights Ordinance, Cap 383.

5. In serious case, such as the Applicant’s case where termination of service was awarded, and the evidence of a civilian witnesses vital to the determination of the case, the prosecution should apply to the Court of First Instance for subpoenas to ensure her attendance or the tribunal should grant a temporary/permanent stay of proceedings.

6. The Applicant was not given a fair opportunity to cross-examine the crucial missing witness, to put forward his case and to rebut the prosecution case. A trial was therefore deemed unfair.

Ground 2: Irrational

7. The Force Discipline Officer (“FDO”) awarded the Applicant ‘Severe Reprimand’ with additional punishment of ‘Compulsory Retirement with Full Retirement Benefits’ on Charge (B).

8. The Applicant appealed by way of petition to the Commissioner of Police not to find a conviction on Charge (B) and/or not to issue an award of ‘Compulsory Retirement with Full Retirement Benefits’.

9. The Deputy Commissioner of Police (Management) stated that by virtue of the terminatory award of Charge (B), the Applicant was ‘dismissed without retirement benefits from the Force.

10. The increased award in Charge (B) is irrational and arbitrary by saying “… the award for Charge (B) given by the FDO is in fact too lenient”. If the Applicant did not exercise my right to appeal, he would be allowed to retain his benefits. It is a very heavy blow to him and his family, as he was the sole breadwinner of the family. It is undoubtedly the most severe punishment imposed to any defaulter.

25.I can deal with each ground in turn. Neither has any merit.

D.  Ground 1: Alleged Unfairness

26.It seems to me that this ground proceeds upon a fundamental misunderstanding. Though it is correct that the AO permitted the Prosecution to produce the evidence of the prosecution witness police officers who interviewed Ms Wan and took two statements from her – and those witnesses were cross-examined on behalf of the Applicant – the AO ultimately gave absolutely no weight to the two statements of Ms Wan on the basis that it would be unfair to do so, not least where the Applicant had not had the opportunity to cross-examine her on those statements – his very argument here.

27.In other words, there was for all practical purposes no evidence from Ms Wan relied upon by the AO in coming to his conclusions. What Ms Wan had said in her statements, and what she might or might not have said in oral evidence, was therefore beside the point. Nor was there any material given any weight, which had somehow been adduced through the back door.

28.The Applicant has suggested that he was denied the opportunity of posing the question to Ms Wan whether he had paid Ms Wan for sex, when she might have replied in the negative. But she might have replied in the positive. In some ways, the Applicant was arguably in a better position than having had to cross-examine Ms Wan, and thereby to risk her answers not being supportive of his case. This was because ultimately no weight at all was given to anything that Ms Wan had said as was recorded in her two statements. Further, though I place no weight on this point, if the Applicant were to have thought that Ms Wan would give helpful evidence were she to be called as a witness at the Disciplinary Tribunal, I do not think there was anything to have prevented the Applicant from seeking to call Ms Wan as his witness.

29.The AO’s conclusions which led to his finding of guilt on Charge B came essentially from the evidence of what the Applicant had himself said in the VRI and Statement, and in his evidence at the Disciplinary Tribunal. The Applicant admitted making a payment to Ms Wan after they had sexual intercourse on the relevant date in 2015, and the AO disbelieved his explanation or story as to why he did so – for reasons which were explained in some detail and which were later upheld. There is no challenge in these proceedings to the admission of the VRI and Statement, nor to any part of the evidence as was given by or elicited from the Applicant at the Disciplinary Tribunal. The weight to be given to the evidence as a whole was a matter for the decision-maker(s).

30.Contrary to the suggestion raised by the intended ground, the Applicant in fact did have a fair opportunity fully to put forward his case, as he did, and to rebut the Prosecution case based upon any evidence upon which the AO placed any weight.

31.There was no arguable unfairness in the trial process conducted by the AO.

E.  Ground 2: Alleged Irrationality

32.The only assertion made on this ground is simply that there was a finding that the previous award given by the FDO was in fact too lenient – perhaps together with some element of expression of regret from the Applicant that if he had not exercised his right to appeal, he might have been allowed to retain his benefits.

33.For the DCP MAN to have formed the view that the previous award given by the FDO was in fact too lenient does not seem to me to be arguably irrational. It was fully explained in the Deliberation in a logical and coherent manner. It was properly open to the DCP MAN to view the Applicant’s conduct in overall context.

34.In any event, the appropriate punishment to be awarded in such disciplinary circumstances are ordinarily recognised by the Courts to be something to which a significant margin of appreciation will be given to the decision-maker. I see no arguable basis in this case for judicial interference.

F.  Result

35.The Applicant’s application for leave to apply for judicial review fails to identify any reasonably arguable ground of review with any realistic prospect of success.

36.In the circumstances, the application stands to be dismissed and I so order. As I have dealt with the application on the ex parte basis upon which it was made, I make no order as to costs.

Francis Kong & Co., Solicitors for the applicant