Tsui Kwok Leung v. Attorney General
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1. This is an application for judicial review. The applicant, Tsui Kwok Leung, is a Police Constable of some 14 years' service. The proceedings in respect of which he applies are disciplinary proceedings which had been brought against him under the Police (Discipline) Regulations, Cap.232.
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HCMP002369A/1989 1989, MP No. 2369 --------------------- H E A D N O T E --------------------- The applicant, a Police Constable who had been found guilty (by a Superintendent) on 3 disciplinary charges, made an application for judicial review seeking certiorari to bring up and quash those findings, the confirmation thereof and award of punishment thereon (by a Chief Superintendent) and the decision (of the Commissioner of Police) dismissing the appeal against such confirmation. In arriving at those findings, the Superintendent said : "The defence has not managed, in my view, to rebut the case presented by the prosecution." It was held that those words alone would entitle the applicant to succeed because they indicated that the Superintendent "... failed to appreciate the full implications of the onus of proof being fairly and squarely on those bringing charges whether disciplinary or criminal." Nevertheless, as there had been full argument on it, the Court went on to deal with the complaint that the Chief Superintendent had got the standard of proof wrong when he said that "... there was more than sufficient evidence, on the balance of probabilities, to confirm ..." the Superintendent's findings. It was held that the applicant was also entitled to succeed on the basis of that complaint. The Court rejected the argument that the Privy Council's decision in Lanford v. General Medical Council [1989] 2 All E.R. 921 was in conflict with earlier decisions of the Board, and stated that :-
1989, MP No. 2369 IN THE SUPREME COURT OF HONG KONG HIGH COURT MISCELLANEOUS PROCEEDINGS --------------------- BETWEEN
Coram: Bokhary J. in Court Dates of hearing: November 9, and 10, 1989 Date of delivery of judgment: November 10, 1989 ----------------------- J U D G M E N T ------------------------ 1. This is an application for judicial review. The applicant, Tsui Kwok Leung, is a Police Constable of some 14 years' service. The proceedings in respect of which he applies are disciplinary proceedings which had been brought against him under the Police (Discipline) Regulations, Cap.232. 2. In those proceedings he faced, and was found guilty of, three disciplinary charges. All three charges arose out of an incident at an off-course betting centre in Wanchai on the evening of April 7, 1988. The applicant (who was off-duty at the time) and a man by the name of Hung were among those standing in a queue to place their bets on a horse race. 3. Something happened as between these two gentlemen. It resulted in the applicant catching hold of Mr Hung's tie, placing him under arrest for attempting to pick his i.e. the applicant's pocket, and escorting him to Wanchai Police Station. 4. What really happened? On Mr Hung's account, it would appear that the applicant had barged in front of him to place a bet ahead of his turn in the queue, and that everything that happened thereafter was the applicant's improper reaction to Mr Hung's act of remonstrating with him over such queue-jumping. "Not so", said the applicant. According to him, he had acted properly in arresting Mr Hung because Mr Hung had - or at least because he believed that Mr Hung had - attempted to pick his pocket. Moreover, according to applicant, his act of catching hold of Mr Hung's tie was justified, or at least excusable, because he feared that Mr Hung might otherwise have fled. 5. In the result, Mr Hung was not charged with anything; and the applicant was charged with three offences against discipline. 6. The "charge sheet" was not among the papers filed by the applicant; but it was produced at the hearing by consent. I propose to direct that it be marked as Exhibit No. 1. 7. Each offence is charged as having been committed in the betting centre on April 7, 1988. 8. Charge A is of conduct calculated to bring the public service into disrepute, contrary to regulation 3(2)(m) of the Police (Discipline) Regulations. The particulars state that in the course of arresting Mr Hung, the applicant - and here I quote from the particulars :-
9. Charges B and Care both of neglect of duty, contrary to regulation 3(2)(h) of the Regulations. As in the case of Charge A, the particulars under Charges B and C relate to the arrest of Mr Hung. Quoting from them, the particulars under Charge B say to the applicant :-
The particulars under Charge C - quoting from them - say to the applicant :-
10. On March 20, 1989, the applicant appeared before a Superintendent, sitting in Wanchai Police Station, to constitute a tribunal under Part II of the Police (Discipline) Regulations. The appellant pleaded not guilty. The case against him was presented by an Inspector. He was defended by a Senior Inspector. The Superintendent heard the witnesses - including Mr Hung and the applicant - being examined, cross-examined and re-examined. He received written submissions from both sides. The hearing was spread out over several days in March and April 1989. 11. On April 25, 1989, the Superintendent gave his decision, finding the applicant guilty on all three charges. He gave his reasons. In doing so, he delivered what he described in the record which he kept as a "judgment". In light of the way in which the matter was argued before me, it is necessary to rehearse in full what the Superintendent said, which is as follows :-
As to punishment, this is what Superintendent said :-
Such a reference apart, the matter had in any event to go before a more senior officer. Regulation 14(1) of the Police (Discipline) Regulations provides :- "Within 14 days from the date of any finding or award made by an appropriate tribunal, a senior police officer shall - (a) in respect of the finding -
(b) in respect of any award, where he confirms or varies the finding -
(c) where the appropriate tribunal has sent the Defaulter Report to him because it considers a punishment which it can award is insufficient, make an award which he shall announce personally or communicate in writing to the defaulter." 12. On May 5, 1989, the matter came before a Chief Superintendent, the District Commander of Wanchai, under regulation 14(1). The Chief Superintendent kept a careful note of the proceedings before him. Again in light of the way in which the matter was argued before me, it is necessary to rehearse in full what the Chief Superintendent said, which is as follows :-
13. The applicant appealed to the Commissioner of Police. The appeal was submitted on June 7, 1989. It was dismissed. Such dismissal was communicated to the applicant by a memorandum dated June 28, 1989, which concludes thus :-
14. Pausing here, I am bound to say that the papers placed before me show that the officers who dealt with the matter approached it in a most conscientious manner. Nevertheless, it is said on the applicant's behalf, that they made fundamental errors in regard to the onus and standard of proof. And, of course, as everybody - not least of all judges - know, you can sometimes be mistaken, and seriously mistaken, even if you are generally competent and have done your best. 15. Reverting to what the Superintendent said, this is the passage of which complaint is made on the applicant's behalf :-
16. This, it is argued by Mr McCoy for the applicant, reverses the onus of proof. The result, he submits, is that the Superintendent got the onus of proof wrong and that he also got the standard of proof wrong since there is no foundation for getting the standard right once you have put the onus on the wrong side. That is not quite the way in which Mr McCoy put it; but that is the effect, as I understand it, of what he said. Put that way, I agree with that submission as to the result of the Superintendent's approach. Ms Hartstein's argument is that notwithstanding what the Superindent said, there was no error as to the onus (or standard) of proof in his approach since, before he came to the question of rebuttal, he had already referred to having heard all the witnesses including the applicant, to having carefully watched their demeanour, to the straightforward nature of the evidence of the "prosecution witnesses", and to having no doubt as to the honesty of their testimony. The argument was developed by Ms Hartstein with great ability. But here is the snag to it : If the Superintendent thought that the applicant had "... to rebut the case presented by the prosecution ..." - and his words show that he did think along those lines - then he was in fundamental error, and such error would permeate and vitiate his whole approach to the evidence from start to finish. To say that the onus of proof was reversed always sounds dramatic. And I do not think that it is necessarily the best way to describe what happened here. I prefer to say that the Superintendent failed to appreciate the full implications of the onus of proof being fairly and squarely on those bringing charges whether disciplinary or criminal. In the absence of a presumption, those facing charges have nothing to rebut and no obligation to give or adduce any evidence. 17. What I have said so far is sufficient to dispose of this matter in favour of the applicant, who seeks an order of certiorari to quash : the findings of guilt made by the Superintendent; the confirmation of those findings by the Chief Superintendent; the award of punishment made by the Chief Superintendent, and the Commissioner's decision upholding such findings, confirmation and award. 18. But I should - since I have heard full argument thereon - also deal with the other basis on which certiorari is sought. 19. Here, the applicant's complaint is directed against the Chief Superintendent's confirmation of the Superintendent's findings on the basis that - to quote what the Chief Superintendent said : "... there was more than sufficient evidence, on the balance of probabilities, to confirm ..." those findings. 20. Here, there is a dispute between counsel as to the applicable law. Mr McCoy relies on the very recent decision of the Judicial Committee of the Privy Council in Lanford v. General Medical Council [1989] 2 All E.R. 921. At p.925e, Lord Lowry, delivering the Board's advice in an appeal from a determination of the Professional Conduct Committee of the General Medical Council, said :-
Ms Hartstein drew my attention to a number of authorities including the decision of the Court of Appeal in Re a Solicitor [1988] 2 H.K.L.R. 137, which was an appeal from a determination of the Disciplinary Committee of the Law Society. Mr Justice Barker, with whose judgment the other two members of the Court agreed, said at p.145 B-G :- "Secondly, I must deal with the standard of proof required of the Law socity in respect of charges laid by it before the Disciplinary Committee. Counsel for the Law Society is reported as saying at p.212 of the transcript :
The Disciplinary Committee appeared to have acted on this concession because they held that the allegations of misconduct of the solicitor had been proved beyond reasonable doubt. This concession was in my opinion wrongly made. In Tarnesby's case Lord Pearson said at p.6 of the judgment :
In Bhandari v. Advocates committee [1956]1 WLR 1442 where the appellant had been found guilty of professional misconduct as, an advocate. Lord Tucker said at p.1452 :
This dictum in my judgment represents the law of Hong Kong and should in future be followed." Ms Hartstein says that the view of the law contained in that passage conflicts with, and should be followed in preference to, the view later taken by the Privy Council in Lanford v. Generlal Medical Council (supra). Naturally, she does not so submit on the strength of the Court of Appeal's authority, but rather on the basis of Tarnesby v. General Medical Council, Privy Council Appeal No. 21 of 1969, July 20, 1970, (unreported) and Bhandari v. Advocates Committee [1956] 1 WLR 1442, both of which are of course themselves decision of the Privy Council. In the 1970 case the Privy Council was sitting on appeal from the General Medical Council in Britain. In the 1956 case the Board was sitting on appeal from the Court of Appeal of Eastern Africa and, therefore, in its traditional role as the ultimate court of the Empire and Commonwealth. 21. I regard myself as bound by decisions of the Judicial Committee of the Privy Council, whether reached in an appeal from Hong Kong, from some other territory outside Britain or from a body in Britain such as the General Medical Council. 22. Ms Hartstein says that the relevant decisions of the Privy Council are in conflict, that I must choose between them, and that in making my choice I am not bound to follow the latest decision since it does not make any reference to the earlier decisions with which it - according to Ms Hartstein - conflicts. 23. She draws my attention to the decision of the Privy Council in Eaton Baker and Another v. The Queen [1975] A.C. 774. There, at page 788, Lord Diplock, delivering the advice of the majority, said that where the rationes decidendi of two decisions of the Board conflict one another and the later decision does not purport to overrule the earlier, the local courts may choose which ratio decidendi they will follow, and in doing so they may act on their own opinion as to which is the more convincing. 24. In deciding which view is more convincing, I ought of course to decide on the basis of which course I think the Privy Council it self is most likely to adopt in resolving the conflict, if conflict there be. 25. It seems to me that the very first thing I must do is to see if the latest decision really does conflict with the earlier ones. And one should be slow to attribute any conflict to decisions of the Privy Council. I think one should also be slow to assume that the Privy Council has merely assumed, without deciding upon, the correctness of a proposition when, as in Lanford v. General Medical Council (supra), the Board said, albeit it parenthesis, that the proposition had been "rightly" advanced by counsel. 26. Having given the matter the best consideration I can, I do not think that there is in truth any conflict between Lanford v. General Medical Council (supra) and the earlier cases. Between that case and the earlier ones, we have the decision of the House of Lords in Reg. v. Home Secretary, ex parte Khawaja [1983] 2 WLR 321 where (at pp.344H - 345A) Lord Scarman explained the position in these words :-
Lords Scarman then went on to discuss cases such as Bater v. Hater [1951] P.35 and Hornal v. Newberger Products [1957] 1 QB 247. The standard which the House of Lords laid down is one directed to a preponderance of probability but applied flexibly so that the degree of proof required is made a proportionate to the gravity of the allegation and the consequences of its being found proved. 27. So it is "largely a matter of words" when discussed among lawyers; but the words chosen are crucial when they are employed for the "guidance" of non-lawyers having to decide issues of fact in a judicial or quasi-judicial setting. It is not only on juries that non-lawyers have to do that. They sometimes have to do that in discplinary enquiries. 28. I am unable to attribute to the decision of the Privy Council in Lanford v. General Medical Council (supra) any real conflict with earlier decisions of the Board. 29. In my judgment, on the authority of the Privy Council's recent decision, the best guidance which the Courts can give disciplinary tribunals is to tell them that when they are dealing with allegations of wrongdoing so serious as to have a grave effect, if proved, on a person's career or livelihood, they ought not to find such person guilty of such wrongdoing if they have a reasonable doubt - and it is of course a reasonable doubt, not a fanciful doubt- as to whether he is indeed guilty. Of course, such tribunals should understand - and be given to understand if necessary - that the more serious an allegation the more compelling must be the evidence to remove reasonable doubt of guilt. 30. This approach appears not to have been the Chief Superintendent's approach. On any view, he does not appear to have required anything more than proof on a mere balance of probabilities. It is true that he used the words "more than" when he said that "... there was more than sufficient evidence, on the balance of probabilities, to confirm the findings of guilty ..." But that cannot be read as a statement that there was sufficient evidence on more than a balance of probabilities to confirm such findings. 31. There are, on the face of the record, serious errors in the decision-making process. An order of certiorari will go to bring up the findings, confirmation, award and decision here in question and quash them. They are brought up and quashed accordingly. 32. [Submissions on question of sending charges back for fresh determination and on costs] 33. At one stage Ms Hartstein raised the question of my ordering that the charges be sent back for fresh determination. Mr McCoy says that I should not, and indeed cannot, do anything of that sort and that, in any event, it is quite unnecessary since the applicant's superiors are at liberty if they see fit to pursue those charges afresh. In light of that stance taken by Mr McCoy, Ms Hartstein does not press me to make any order to the effect that the matter be sent back; and I do not make such an order. 34. Mr McCoy also asks for the costs of these proceedings. Ms Hartstein offers no opposition to that. Accordingly, I make an order for costs in favour of the applicant. 35. Before parting with this matter, I would like to express my indebtedness to counsel on both sides for their very considerable assistance.
Representation: Mr G. McCoy and Ms E. Robertson (instructed by Helen A. Lo & Co.) for the applicant Ms V. Hartstein (of the Attorney General's Chambers) for the respondent |