Lam Sze Ming and Another v. The Commissioner of Police

CACV000912/2000

CACV 912/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 912 OF 2000

(ON APPEAL FROM HCAL NO. 1150 OF 2000)

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Coram: Hon Mayo VP, Hon Cheung JA and Hon Yeung JA in Court

Date of Hearing: 28 June 2002

Date of Judgment: 23 July 2002

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J U D G M E N T

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Hon Cheung, J.A. :

The history

1.On 30 September 1995 the police conducted a gambling raid at a premises in Kowloon City and the two applicants were among the 15 persons found inside the premises. The two applicants were at that time serving policemen. Arising from this raid, two prosecutions were initiated. First, a prosecution in the District Court by the Independent Commission Against Corruption ("ICAC") in which a number of persons were charged and convicted of the offences of conspiracy to operate a gambling establishment and accepting advantages. The two applicants were not the defendants in that trial. Second, a police prosecution in the magistracy in which the two applicants were charged together with others with the offence of gambling in a gambling establishment. They were all acquitted.

Disciplinary proceeding

2.The police then instituted defaulter or disciplinary proceedings against the two applicants and other police officers found in the gambling raid. They were charged with "Conduct calculated to bring the public service into dispute" contrary to Regulation 3(2) of the Police (Discipline) Regulations Cap. 232 ("the Regulations"). The complaint was that they frequented the same premises for the purpose of unlawful gambling between June 1995 and 29 September 1995 (i.e. the date before the gambling raid). The 1st applicant Lam Sze Ming was described as D3 and the 2nd applicant Yeung Yat Wing D4 in the disciplinary proceeding. They were both found guilty and dismissed from the police force. Judicial review was commenced by them to challenge the decision. The application was dismissed by Burrell J. The applicants now appeal against the decision.

The witnesses

3.Among the witnesses that gave evidence for the prosecution in the disciplinary hearing were PW3 Lai Po Keung ("Lai") and PW4 Au Tsz Lung ("Au"). There were originally among the persons charged in the magistrate court. Immunity was, however, offered to them and they ceased to be defendants in the magistrate court and they testified in the District Court. Lai was a former policeman and one of the operators of the gambling establishment. Au was an employee at the gambling establishment. Lai and Au did not give evidence in the magistrate court.

The evidence

4.In the disciplinary hearing Lai agreed to the suggestion put by the 1st applicant that the 1st applicant had visited the premises for "chatting and drinking, but had not taken part in illegal gambling". He also agreed that the 1st applicant was not aware the premises was a gambling establishment at the police raid. Lai did not mention the 2nd applicant visiting the premises.

5.When the prosecutor re-examined Lai, the following took place :

"Q. : About the second question by D5, it was about the raid on 30 September 1995, you said you slept in the room?

A. : Yes.

Q. : You were not aware of what was going on in this sitting room. Is that correct?

A. : Yes.

Q. : Do you agree it was entirely contradictory to what you had testified in the District Court?

A. : If I did not give such evidence in District Court, I would be charged with more offences.

Q. : So your evidence is false in District Court and led to conviction of three persons in order to suit your own interest?

A. : No, you can't say that.

Q. : Please clarify.

A. : ICAC would use all means to get me to give statement which was against my wish."

6.Au testified that he had seen both the 1st and 2nd applicants gambled at the premises before 30 September 1995. They were there on one or two occasions. On those occasions commission money was taken for the gambling.

7.The 1st applicant's evidence at the disciplinary hearing was that he only visited the premises once or twice prior to 30 September 1995 for drinking and chatting. On 30 September 1995 he was there drinking, chatting and watching television. He suggested Au could be confused and mistook him to be unlawfully gambling there. The 2nd applicant's evidence was also that he went to the premises on 30 September 1995 to drink and chat. He was watching the television when the police raided the premises. He suggested that Au had lied to implicate him.

The judgment

8.The Judgment of the Disciplinary Tribunal ("the Tribunal") stated that :

" Concerning the tainted witness aspect, the tribunal notes that the evidence of PW 3 and PW 4 as prosecution witness for the ICAC case had been tested and gone through in the District Court, resulting in a conviction of corruption and gambling charges against the syndicate organizers and operators. Thus, the creditability of their testimony as a tainted witness should not be doubted unless there is evidence to prove otherwise.

Basing on this argument, PW 4's testimony which is consistent to that in the District Court trial and with his statement (P Exh 16) should therefore carry more weight. However, there are doubts in PW 3' testimony before these proceedings because it is contradictory to his own statement (P Exh 14), and not consistent with the statements he made to ICAC (not produced), bases (sic) upon which, he subsequently testified in the District Court."

Grounds of appeal

9.The grounds of appeal relied upon by the applicants, are now two. First, procedural fairness requires the disclosure by the prosecutor to the applicants of the transcript of the District Court proceedings and also the cautioned statements of Lai and Au given at the time of arrest by the police. Second, the Tribunal had applied the wrong burden and standard of proof.

District Court proceedings

10.The prosecutor in her affirmation filed in the court in the below stated that before the disciplinary hearing began, she knew Lai and Au had given evidence in the District Court. She did not tell the applicants about this because the evidence they gave in the District Court was not relevant to the proceedings. The evidence of Lai given in the District Court only became relevant during the evidence he gave in the Tribunal when he contradicted the evidence he gave in the District Court. She did not have a transcript of the District Court proceedings. One of the applicants had asked her for a copy of the transcript during the disciplinary hearing and she told him she did not have a copy and advised him how he could obtain one himself.

Procedural fairness

11.The argument of the applicants is that if the evidence is relevant, it should be disclosed to the defence. Rule 7 of the Regulations stated that "A defaulter charged with under these regulations shall be given copies of or reasonable access to such police records and other documents as he requires and which are necessary to enable him to prepare his defence but not including these records for which the Government claims privilege."

12.The applicants were not tried in a court but in a domestic tribunal. However, they were charged with a very serious offence and when convicted would face serious penalty including dismissal. In my view, procedural fairness as affirmed in R. v. Secretary of State for the Home Department ex parte Doody [1994] 1 A.C. 531 requires the prosecution to provide all relevant materials to the applicants so as to enable them to properly present their case.

13.In the present case, both Lai and Au had given evidence in the District Court resulting in the conviction of the persons charged. As seen from the questions and answers cited above, Lai did not dispute in the disciplinary hearing that he had given contradictory evidence in the District Court. Hence the real issue is not on the content of the evidence in the District Court, but rather the fact that he had given testimony contrary to those he gave in the disciplinary hearing. The transcript of the District Court would not have advanced the applicants' case as far as Lai is concerned. In the light of this, the fact that the prosecutor had not provided the transcript of the District Court proceedings to the applicants cannot be a ground of complaint.

14.As for Au, it was not suggested that he had given any contradictory evidence in the District Court. In the light of this, in the context of the disclosure of the District Court transcript, I fail to see why the transcript is of relevance which needs to be disclosed.

Cautioned statement

15.However, in relation to the challenge based on procedural fairness, the most difficult aspect is on the non-disclosure of the original cautioned statements of Lai and Au made to the police at the time of their arrest. This is recognized by the learned judge. The prosecutor had disclosed three statements of Lai dated 19 October 1995 (to ICAC), 11 June 1996 (to police) and 27 June 1996 (to police) respectively. She had also disclosed 3 statements of Au dated 6 December 1995 (to ICAC), 11 June 1996 (to police) and 27 June 1996 (to police) respectively.

16.She stated that she had disclosed all documents in her possession that she considered relevant. Since there is no denial that she had possession of the two cautioned statements, the only reasonable inference one can draw from what she said is that she had considered these two statements to be irrelevant.

17.In applying the principle of fairness it is important to bear in mind the context of the decision. The fact that the prosecution possesses many documents relating to the case does not mean every one must be disclosed. What is important is the disclosure of documents which have a direct bearing on the case. The basic requirement is that relevance must be considered in the context of both the prosecution and defence case. Documents which may advance the defence's case clearly fall within this category. It is not logical that some but not all of the previous statements of the witnesses should be disclosed.

18.In this case, the three previous statements of Lai are in respect of the following matters :

1. The 1st statement of 19 October 1995 to ICAC dealt with the setting up of the flat for gambling purposes and the events of 30 September 1995. Both applicants were said to be present that date and gambled. The last matter is not something of issue in this case. Although the 2nd applicant was not someone he knew.

2. The 2nd statement of 11 June 1996 to the Police identified both applicants as being involved in gambling on 30 September 1995. He identified the 2nd applicant as having been there on earlier occasions. He also said the 1st applicant came to gamble.

3. The 3rd statement of 27 June 1996 to the Police referred to the telephone numbers of the persons who used the flat for gambling. He also said that he had been shown photographs of persons using the flat. He did not specifically mention the applicants.

19.In respect of the three statements of Au,

1. The 1st statement dated 6 December 1995 to the ICAC stated how the flat was set up for gambling. It did not mention either the applicant having anything to do with the establishment before 30 September 1995.

2. The 2nd statement dated 11 June 1996 to the Police stated the 1st applicant was in the flat on one or two occasions when he came and gambled. He made no mention of the 2nd applicant.

3. The 3rd statement dated 27 June 1996 to the police identified a number of persons who used the flat but did not mention the applicants.

20.The prosecutor had not explained why these six statements were relevant to both the prosecution and defence and yet the two cautioned statements were not. Having considered the content of the six statements, at the very least, if the prosecutor was of the view that the two cautioned statements were irrelevant, then she should disclose their contents first. This was not done. If the prosecutor had actually used Lai's own statement (i.e. the 1st statement) to cross examine him because he had given contrary evidence, then clearly she should recognize that the defence may likewise use the two cautioned statements for the same purpose.

What the Tribunal said

21.The Tribunal stated in its judgment that it considered the events of 30 September 1995 to be highly relevant notwithstanding that the applicants were acquitted of the criminal charge. It held that their presence in a gambling establishment would assist it in drawing inference on what they would be doing there on their previous visits. It would also help to assess whether the premises would have been used as a gambling establishment. The Tribunal clearly recognized the importance of the evidence of Lai and Au. It said that :

" The testimony of (Lai), (Au) and DW 1 are most crucial to the prosecution and the defence. The degree of weight put on their evidence is vital for the tribunal in deciding whether the defaulters should be found guilty or not guilty of the charge."

22.As a matter of fact the Tribunal had attached great weight to the evidence of these two witnesses as can be seen from the passage cited at paragraph 8.

23.Both Lai and Au were at one time charged with the same crime as the two applicants. They had given evidence under immunity. Their evidence must be carefully scrutinized. Although Lai's evidence in the Tribunal did not implicate the applicants, Au's evidence clearly did. It is important for the applicants to be provided with all the former statements made by Au including that of his cautioned statement made at the time of his arrest. This is required to test the credibility of Au. I really cannot see how the challenge on non-disclosure can be overcome by the prosecution producing his other statements. Furthermore if the Tribunal itself, as shown in the extract of its judgment, relied on the disclosed statements of Lai and Au to assess their credibility, then clearly the Tribunal ought to be provided with the rest of their statements in order to ensure that a fair assessment had been made.

24.Lai's cautioned statement may also become relevant if it in fact supports his evidence given in the Tribunal. After all the Tribunal is concerned with his credibility.

Principle of fairness

25.The common law principle on disclosure of material by the prosecution is based on fairness and the principle of open justice and it would be contrary to that principle for the prosecution to withhold material that might undermine the prosecution case or assist the defence : R. v. Brown (Winston) [1998] A.C. 367.

26.Under administrative law, the House of Lords in Doody clearly stated that since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer. This requirement clearly embraces the disclosure of the previous statements of two witnesses who at one time were defendants in a criminal trial together with the applicants. In order to fully advance their case, the applicants must have their cautioned statements so that their credibility can be tested in cross-examination or addressed in the submission. The Tribunal can only assess their credibility by reference to all their previous statements.

The prosecutor's decision

27.If a duty to disclose exists, then clearly it is not an answer to say that once the prosecutor had considered the matter then the Court can not go beyond her decision. This is clearly not how the supervisory jurisdiction of the Court is exercised, otherwise the principle of fairness or natural justice does not even need to be considered. The issue here is simply whether the cautioned statements belong to the same type of documents that need to be disclosed. They clearly are.

Duty to disclose

28.It is said that the applicants had not challenged the prosecutor's statement on what she considered to be relevant. I do not think the matter is to be dealt with a mechanical matter. The issue of non-disclosure of the cautioned statements was clearly before the court. The relevance of Lai and Au's previous statements for the purpose of dealing with their credibility was also clearly identified. It would be superfluous to require the applicants to say "I challenge the prosecutor's statement".

29.The applicants' lawyers admitted that they had not asked for the cautioned statements when they lodged the judicial review proceedings, although it was said that the applicants themselves had asked for the statements but was refused by the prosecutor. The applicants did not have legal representation in the Tribunal.

30.In my view it is not correct to decide the case on the basis of whether the applicants themselves or their lawyers had made the request or not. If the principle fairness imposes a duty on the prosecution then obviously this must be observed irrespective of whether a request had been made or not. The duty to disclose is not a point taken for the first time at this appeal. It was relied upon as a ground in the judicial review application. The learned judge did not decide the issue on the basis that the applicants had not made any request. The Commissioner of Police ("the Commissioner") in its Respondent's Notice had also not relied on this in support of the decision. The question of request is a non-issue.

31.The learned judge held that the adjudicator was in a position to make a proper decision and did make a proper decision after a full and fair investigation and hearing. However, with the non-disclosure of the two documents which belong to the same type of relevant documents, I fail to see how it can be said that a proper decision had been made.

Result of non-disclosure

32.The failure by the prosecution to disclose relevant material is a ground for quashing the decision of the Tribunal even when the fault is not based on dishonest conduct of the prosecutor or when the Tribunal itself was not guilty of non-disclosure. The issue is whether the defence was given a fair trial : R. v. Leyland Justices, ex p Hawthorn [1979] 1 Q.B. 283.

33.It is irrelevant whether there is any suggestion that the prosecutor deliberately withheld the documents or not. The learned judge said that in practical terms, the applicants' complaint amounts to a failure by the prosecutor to seek out and collect material which did not form part of her case. He held that it was not her duty to do so. With respect, I disagree. The requirement of disclosure is based on fairness. The principle is the same whether it is under the criminal or administrative law. This requirement transcends the basic duty of the prosecutor in presenting her side of the case. In the context of this case, the non-disclosure of Lai and Au's cautioned statements clearly prevents a fair hearing being given to the applicants.

34.Mr. Coleman, counsel for the Commissioner, in his written submission stated that the established principle in the Leyland line of cases is that a challenge may lie when unfairness in the conduct of proceedings results from some failure by the third party, when that failure may be regarded as analogous to collusion, perjury or fraud; but since there is no allegation in the present case that the failure to disclosure is one which is fraudulent or analogous to fraud, therefore the non-disclosure does not avail the applicants.

35.This is a misreading of Leyland. The case does not require a non-disclosure to be fraudulent or analogous in nature before the court can quash the decision. The reference to fraud and collusion is simply to highlight the fact that a misdeed does not need to be carried out by the tribunal itself. This is clear from Leyland itself where the court held that:

" However, if fraud, collusion, perjury and such like matters not affecting the tribunal themselves justify an application for certiorari to quash the conviction, if all those matters are to have that effect, then we cannot say that the failure of the prosecution which in this case has prevented the tribunal from giving the defendant a fair trial should not rank in the same category.

We have come to the conclusion that there was here a clear denial of natural justice. Fully recognizing the fact that the blame falls on the prosecutor and not on the tribunal, we think that it is a matter which should result in the conviction being quashed. In my judgment, that is the result to which we should adhere."

36.In fact the true principle is clearly set out in the English Court of Appeal decision in R. v. Criminal Injuries Compensation Board ex p A [1997] 3 WLR 776 at page 793 :

" It has long been established that fraud, collusion, perjury and the like provide grounds for judicial review even though there has been no error or misconduct on the part of the tribunal itself. The principle established by the line of cases culminating in Ex parte Scally [1991] 1 Q.B. 537 is that a challenge may also lie when unfairness in the conduct of proceedings results from some failure on the prosecutor's part even where no one has been guilty of fraud or dishonesty; that failure itself may be regarded as analogous to fraud."

37.In the House of Lord [1999] 2 AC 330, Lord Slynn of Hadley stated that :

" It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness."

38.See also Jiang Enzhu v. Lau Wai Hing [1999] 3 HKC 8.

Discretion

39.Judicial review is a discretionary remedy. Where there is a clear breach of the principle of fairness, the only situation when a remedy should be refused is on the basis that having considered all the circumstances of the case, the discretion should not exercised in favour of the applicant : see the recent decision of this Court in Leung Fuk Wah v. Commissioner of Police CACV 2744/2001. The Commissioner had decided not to disclose the two cautioned statements in the court below or invite the court to exercise the discretion against the applicants. This being the case, there simply is no material upon which the court could exercise its discretion.

Conclusion

40.On my part, I would allow the appeal, quash the judgment of the tribunal on this ground and order a rehearing. This being so, it is necessary to further consider the issue of whether the Tribunal had erred on the standard and burden of proof.

Hon Yeung, J.A.:

41.Natural justice demands that an accused must be given a fair hearing. A fair hearing must always include a fair opportunity for the accused to know the case against him and what evidence has been given and what statements have been made affecting him.

42.There is of course a duty on the part of the prosecution to make disclosure of material that might undermine the prosecution case or assist the defence.

43.But the rules of natural justice must not be stretched too far and the extent of the duty of disclosure on the part of the prosecution must depend on the facts of each case.

44."The so-called rules of natural justice are not engraved on tablets of stone." (per Lord Bridge in Lloyd v McMahon [1987] AC 625 at 702.) Tucker LJ observed in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118:

" The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth."

In R v Home Secretary ex p. Moon (1996) 8 Admin. LR 477 at 480, Sedley J also said:

" The well attested flexibility of natural justice does not mean that the court applies differential standards at will, but that the application of the principles (which, subject to known exceptions, are constant) is necessary as various as the situations in which they are invoked."

45.I cannot subscribe to the suggestion that all the previous statements of Lai and Au made to the police at the time of their arrests must be disclosed just because they belong to the category of documents that need to be disclosed. There is in my view no such thing as a category of relevant documents that need to be disclosed. Every document should be considered individually to decide if it is relevant.

46.I do not agree that the applicants must have the cautioned statements of Lai and Au so that their credibility can be tested in cross-examination or addressed in the submission or that the Tribunal can only assess their credibility by reference to all their previous statements.

47.It must depend on the nature and contents of those cautioned statements. It may well be that there is nothing significant in the cautioned statements at all.

48.Regulation 7 of the Police (Discipline) Regulations provides that "A defaulter charged under these regulations shall be given copies of or reasonable access to such police records and other documents as he requires and which are necessary to enable him to prepare his defence but not including those records for which the Government claims privilege."

49.Such regulation does not detract from the basic premises that a defaulter is only entitled to be provided with copies of relevant documents.

50.The applicants had been supplied with 3 statements from each of Lai and Au. There was a positive assertion by the prosecutor on oath that she had disclosed all documents in her possession that she considered relevant.

51.The applicants were aware of the existence of the cautioned statements and the assertion by the prosecutor. The applicant did not challenge such assertion. There was no indication that they had asked for the disclosure of the cautioned statements.

52.If the applicants had challenged the assertion of the prosecutor or demanded for the disclosure of the cautioned statements, the Tribunal would have the opportunity to adjudicate on the matter.

53.When the matter went before Burrell J by way of a judicial review application, again there was no attempt to seek discovery of the cautioned statements.

54.In judicial review proceedings, interlocutory facilities such as discovery of documents and interrogatories are made available wherever the justice of the case required (Order 53, rule 8). The applicant did not avail themselves of such facilities. Their lawyers frankly admitted that they had not asked for the cautioned statements when the judicial review proceedings were lodged. Could they then on appeal complain that they had not been given a fair hearing because they had not been supplied with the cautioned statements?

55.There is a limit to the rules of natural justice.

56.A party who, for tactical or other reasons, had taken a deliberate course of action, should not be allowed to invoke "the rules of natural justice" so as to avoid the consequences of his decision.

57.Ultimately, the question is whether the applicants' right to a fair hearing had been compromised.

58.Looking at the entire background of the case, I am not satisfied that there was any procedural unfairness to vitiate the decision of the Tribunal.

59.Further in judicial review proceedings, the court is not concerned with technical infringement of natural justice. The court will only set aside a decision if it can be demonstrated that there have been some real prejudice or a real risk of injustice to the complainant.

60.In The Queen v Director of Immigration and the Refugee Status Review Board, ex parte Do Giau and others [1992] 1HKLR 287, Mortimer J said at page 314:

" In law there is not technical procedural irregularity or breach of natural justice. Actual injustice or a real risk of it must be shown. Although not in a judicial review Cumming Bruce, L.J. succinctly stated the principle in George v Secretary of State [1979] PCR 609 at 621:

'....I do not for a moment accept that, on the authorities, there is any ground for the view that there is such a concept known to the law as a technical breach of natural justice. 'A breach of natural justice' means that because of what has happened.... either somebody has actually suffered injustice, or there is a real risk that somebody has suffered injustice.'"

61.There was no suggestion, let alone evidence to show that the non-availability of the cautioned statements in question had resulted in any actual injustice or any real risk of injustice to the applicants.

62.A case of actionable procedural unfairness or breach of natural justice had not been made out.

63.The applicants also contended that the Tribunal had failed to apply the proper criteria to their cases because a wrong standard of proof was adopted.

64.It must be borne in mind that the Tribunal is not a judge nor a judicial officer. He has not to obey set rules of procedure other than those set out in Regulation 9 of the Police (Discipline) Regulations.

65.At the end of a very lengthy "judgment", the Tribunal concluded with the following remark:

" After carefully and critically examining the evidence presented by both parties and their written submission, the tribunal believe what PW4 testified before the proceedings is the truthful event and is convinced with no doubt that the defaulter did frequent the premises for the purpose of unlawful gambling. As all the ingredients in the charge have been established, the tribunal is therefore, obliged to find the defaulters D3, D4, D5 and D7 guilty of the charge."

66.I have the benefit of reading the draft judgment of Mayo VP. I agree with his observation that in the overall context of the judgment, it has not been demonstrated that the Tribunal erred in any way on the burden and standard of proof.

67.The judgment of Burrell J cannot be faulted.

68.I would dismiss the appeal.

Hon Mayo, V.P. :

69.I have had the advantage of sighting in draft Cheung JA's judgment.

70.While I agree entirely with the principles he refers to I regret that I disagree with the conclusion he reaches in relation to the non-disclosure of Lai and Au's cautioned statements which they gave shortly after they were arrested.

71.The problem which I see is that the issue of non-disclosure was not satisfactorily canvassed before Burrell J on the judicial review.

72.It is apparent that the prosecutor in the disciplinary proceedings when preparing the prosecution case did consider all of the statements made by Lai and Au and came to the conclusion that the contents of the cautioned statements were not relevant to the disciplinary proceedings.

73.The prosecutor although not legally qualified was an experienced prosecutor who was familiar with the legal requirements relating to the disclosure of documents to a defendant in such proceedings. She stated on affirmation that she had formed this view.

74.In my opinion the important matter to be considered is that no one has seen fit to challenge the prosecutor's judgment on this. This is of relevance so far as the judicial review proceedings are concerned.

75.The applicants were legally represented and although in the circumstances it might seem to be surprising that no issue was taken on this it remains true that the prosecutor's opinion was never called in question notwithstanding the fact that the way in which the disciplinary proceedings were conducted was at the heart of the judicial review.

76.This was how Burrell J dealt with this matter in his judgment:

"In relation to (i) above, PW3 and PW4's original 'cautioned statements' to the Police, the position is a little more difficult but I am nonetheless satisfied that non-disclosure does not amount to a breach of natural justice for the purpose of these proceedings. Firstly, one must not lose sight of the fact that it is the adjudicator's decision which is the subject of this judicial review. The Prosecutor is a third party. It is nonetheless open to the court to quash a decision based on the conduct of a third party, even where the conduct complained of was not dishonest, which may nonetheless have distorted or vitiated the process which culminated in findings against the applicants. I have come to the conclusion that the fairness of these proceedings were not adversely affected by the Prosecutor's failure to provide the two cautioned statements. Their statements to the ICAC were disclosed. The primary issue for determination was whether these applicants had frequented the premises for the purpose of unlawful gambling. Credibility of witnesses was obviously an issue, as in almost every piece of litigation. The investigation was thorough, the hearing lengthy and the judgment detailed and comprehensive.

These were internal disciplinary proceedings in which, as acknowledged by the applicants, the normal rules of evidence and procedure in criminal proceedings do not apply and which are not heard by a trained professional lawyer or judge. I am satisfied that the adjudicator was in a position to make a proper decision and did make a proper decision after a full and fair investigation and hearing. The commentary at page 431 of de Smith's Judicial Review of Administrative Action is apposite when describing procedural fairness :-

'Tucker L.J. in Russell v. Duke of Norfolk said that "there are, in my view, no words which are of universal application in every kind of domestic tribunal ... whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case".

The content of fair procedures is therefore infinitely flexible. It ranges from mere consultation at the lower end, upwards through an entitlement to make written representations, to make oral representations, to a fully fledged hearing at the other extreme with most of the characteristics of a judicial trial. What is required in any particular case is incapable of definition in abstract terms. ... In the recent case of Doody, Lord Mustill in summarising the effect of the authorities said: "The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.'"

In practical terms, the applicants' complaint amounts to a failure by the Prosecutor to seek out and collect material which did not form part of her case. This was not her duty. It cannot be said, in this case, that her failure to do something which she was under no duty to do, amounts to unfair conduct or a breach of natural justice."

77.With respect I do not think that the Judge can validly be criticised for the way in which he dealt with the matter.

78.As above indicated the applicants' legal advisers had not taken issue with the Commissioner of Police on the exercise of the prosecutor's judgment when she came to the conclusion that the said cautioned statements were not relevant.

79.I do not consider that it can properly be suggested that this being the case it was necessary for Burrell J to attempt to resolve the issue of his own volition.

80.This being the case I have come to the conclusion that we would not be justified in interfering with Burrell J's assessment of this issue.

81.I have also come to the conclusion that if the Adjudicator's reasons are considered in their overall context it has not been demonstrated that the Tribunal erred in any way on the burden or standard of proof.

82.For these reasons I am of the view that this appeal should be dismissed.

83.By a majority this appeal is dismissed. We make an order nisi that the respondent will have the costs of the appeal.

Representation:

Mr. Alex Lai instructed by Messrs Y.T. Szeto & Co. for the Applicants

Mr. Russell Coleman instructed by Department of Justice for the Respondent

Application by the 1st and 2nd Applicants out of time to the Court of Final Appeal refused by Court of appeal dismissed. Please refer to CACV912/2000 dated 23 July 2002