Yeung Kwok Fai v. The Commissioner of Police and Another

HCAL000076/1997

A.L. No. 76 of 1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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Coram: The Hon. Mr. Justice Yeung in Court

Date of Hearing: 15 January 1998

Date of Handing Down of Judgment: 27 January 1998

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J U D G M E N T

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1. The applicant Yeung Kwok Fai, a Senior Inspector of Police of the Hong Kong Police Force was charged with four disciplinary offences under the Police (Discipline) Regulations, namely:-

(a) Contravention of Regulation 3(2)(j) Police (Discipline) Regulations.
(Contravention of Police Orders)

Particulars: Senior Inspector Yeung Kwok-fai, of the Royal Hong Kong Police Force, you are charged that on 27 February 1995, at the Administration and Support Sub-Unit Office, Wong Tai Sin Police Station, in Hong Kong, you did make a statement to Chief Inspector Eric Garbett in connection with the discharge by the Police Force of any of its duties and functions, namely an investigation into the safe custody of a case exhibit, a Rolex watch; that the valuable property envelope S/N B218059 containing the Rolex watch in question was opened in court as requested by the prosecutor on 26 January 1995, such a statement being false in a material particular.

(b) Contravention of Regulation 3(2)(j) Police (Discipline) Regulations.
(Contravention of Police Orders)

Particulars: Senior Inspector Yeung Kwok-fai of the Royal Hong Kong Police Force, you are charged that on 28 February 1995, at room 207B, Airport Police Station, in Hong Kong, you did make a statement to Chief Inspector Yam Chiu-fan in connection with the discharge by the Police Force of any of its duties and functions, namely an investigation into safe custody of a case exhibit, a Rolex watch; that the valuable property envelope S/N B218059 containing the Rolex watch in question was opened for the prosecutor's examination on 26 January 1995, such a statement being false in a material particular.

(c) Contravention of Regulations 3(2)(j) Police (Discipline) Regulations.
(Contravention of Police Orders)

Particulars: Senior Inspector Yeung Kwok-fai, of the Royal Hong Kong Police Force, you are charged that on 27 February 1995, at the Administration and Support Sub-Unit Office, Wong Tai Sin Police Station, in Hong Kong, you did make a statement to Chief Inspector Eric Garbett in connection with the discharge by the Police Force of any of its duties and functions, namely an investigation into the safe custody of a case exhibit, a Rolex watch; that the valuable property envelope S/N B218059 containing the Rolex watch in question was brought back from court to Wong Tai Sin Police Station on 26 January 1995 by you personally, such a statement being false in a material particular.

(d) Contravention of Regulations 3(2)(j) Police (Discipline) Regulations.
(Contravention of Police Orders)

Particulars: Senior Inspector Yeung Kwok-fai, of the Royal Hong Kong Police Force, you are charged that on 28 February 1995, at room 207B, Airport Police Station, in Hong Kong, you did make a statement to Chief Inspector Yam Chiu-fan in connection with the discharge by the Police Force of any of its duties and functions, namely an investigation into the safe custody of a case exhibit, a Rolex watch; that the valuable property envelope S/N B218059 containing the Rolex watch in question was opened for the prosecutor's examination on 26 January 1995, such a statement being false in a material particulars.

2. The hearing commenced on 20th of May 1995 and on the 23rd of May 1996, the applicant was convicted by Superintendent N.D. Howcroft, the Appropriate Tribunal (the Tribunal) of all 4 charges. Superintendent Howcroft referred the case to the Commissioner of Police under Regulation 23(4) of the Police (Discipline) Regulations on the question of punishment as he considered his powers of punishment insufficient.

3. The Commissioner of Police forwarded a report to the Governor in accordance with Regulation 27(2) with the recommendation that the applicant be compulsorily retired with such pension, gratuity or other benefits as the Governor may determine. The applicant was informed of such decision and of his right to make representation to the Governor in the form of a written petition on 22nd July 1996.

4. The applicant did forward a written petition to the Governor on 19th August 1996 setting out in details why he considered the convictions against him were unsafe and unsatisfactory.

5. The applicant was further invited to commend on the recommendation by the Commissioner that he should be compulsorily retired.

6. Despite the further representation made by the applicant, on 19th May 1997, the Secretary for the Civil Service directed that the applicant be compulsorily retired from the service with a deferred pension.

7. The present judicial review application was taken out by the applicant on 19th August 1997 for an order of certiorari to quash the decision of Superintendent N.D. Howcroft that the applicant was guilty of the 4 charges, the confirmation of such decision by the Commissioner of Police and the decision of the Governor confirming the decision of Superintendent N.D. Howcroft and directing that the applicant be compulsorily retired from the Police Force.

8. The applicant was a senior inspector of police with 19 years service. At the material time, the applicant was the Commander of the Administration and Support Sub-Unit at the Wong Tai Sin Police Station in charge of the handling of court exhibits. He took over such duty on 19th January 1995.

9. A Rolex watch came into the custody of the police on 4th June 1993 and it passed through a number of policemen's hands before it came into the custody of the applicant following his posting on 19th January 1995.

10. The said Rolex watch was examined twice by a Mr. Chiu King Shui, an employee of Rolex first on 27th January 1994 when he stated that the watch was genuine, and again on 27th February 1995 when he stated that some of parts of the watch were fake.

11. The applicant was charged with the offence of theft of some of the working parts and the dial of the Rolex watch. The applicant was initially convicted of the charge. On appeal Mr. Justice Duffy came to the conclusion that there was insufficient evidence to show that Mr. Chiu had the necessary expertise and therefore "there was no evidence before the court demonstrating how it was that some parts were the watch were fake and some parts were genuine." Mr. Justice Duffy concluded the fact that the Crown did not prove by admissible evidence that the parts of the watch found in February 1995 were fake was fatal to the conviction. The conviction of theft against the applicant was therefore quashed.

12. The factual background of the allegation against the applicant was perhaps well reflected in the judgment of Duffy J. as follows:-

"Evidence was led that until the time that the Appellant (applicant) had charge of the exhibits, and therefore of the watch, none of the police officers who had had the watch in their custody had tampered with it. On 27th February 1995, a check was conducted on the Appellant's safe. During the check a discrepancy was noted between the number on a Valuable Property Envelope (VPE) kept in his safe and that recorded in his safe register. The Appellant was questioned about this and made a statement. In that statement the Appellant said that the exhibits in relation to this case had been opened in court on 26th January 1995, and then resealed in another VPE. He also said that the prosecuting counsel in the case had requested that the old VPE be opened in court, because he wanted to have a look at the exhibits. He said that when he returned from court, he put the old VPE in the safe and forgot to put it in a new envelope. It was only later when checking the safe that he realised his mistake. He said that he had been unaware that he had to make an entry in the register. The exhibits and the old VPE were placed in a new VPE. On 28th February 1995, the Appellant was cautioned in relation to the theft of parts of the watch and gave an interview under caution. Once again he repeated that the VPE containing the watch had been opened in court on 26th January in order to show it to the prosecutor. He said that after court the exhibit was taken back to the police station and put into the safe, but he had forgotten to put in into an additional VPE and have it resealed. He discovered his mistake on 20th February when he opened the safe, so he told the property clerk to put it into an additional VPE on his behalf. He said that between the time it was replaced in the safe on 26th January until he discovered it in the old VPE on 20th February, no one else had touch it. In that interview, he admitted that he himself wore a Rolex watch."

13. In the disciplinary proceedings against the applicant, it was alleged that the statements given by the applicant to Chief Inspector Eric Garbett on 27th February 1995 that the Valuable Property Envelope S/N B218059 containing the Rolex watch was opened in court as requested by the prosecutor on 26th January 1995 and that the same Valuable Property Envelope was brought back from court to Wong Tai Sin Police Station on 26th January 1995 by him personally were false. When the applicant was interviewed under caution by Chief Inspector Yam Chiu-fan on 28th February 1995, he again repeated the same false statements.

14. At the disciplinary proceeding before the Tribunal, apart from Chief Inspector Garbett and Chief Inspector Yam, Mr. Harish Hariram Melwaney and Miss Louisa Lai Nga-man, the two prosecutors involved in the cases concerning the Rolex watch in question also gave evidence. Their evidence was not challenged at all.

15. Indeed, it was not disputed at all that the statements given by the applicant to Chief Inspector Garbett and Chief Inspector Yam on the 27th and 28th February 1995 that the Valuable Property Envelope S/N B218059 containing the Rolex watch was opened in court as requested by the prosecutor on 26th January 1995 and that the same Valuable Property Envelope was brought back from court to Wong Tai Sin Police Station on 26th January 1995 by him personally were false. The contention of the applicant was that it was a mistake due to faulty memory.

16. The applicant gave evidence before the Tribunal. He repeated the suggestion that the statements he gave were incorrect. He said the mistake was the result of mistake of memory.

17. The Tribunal did not accept the explanation put forward by the applicant and concluded that he knowingly made the false statements in question. The applicant was convicted accordingly and hence the present application.

18. At the outset, Mr. Dykes on behalf of the applicant informed that court that the only decision being challenged was the decision of the Tribunal finding the applicant guilty of the charges. There was no independent complaint against the decisions of the Commissioner of Police and that of the Governor. But if the finding of Tribunal was quashed, so must be the decisions of the Commissioner of Police and the Governor.

19. In support of the present application, Mr. Dykes raised three matters. Firstly it was suggested that there had been procedural unfairness when the Tribunal refused the applicant's application to adjourn the hearing on the 20th May 1996. Such refusal in the circumstances of the case was against natural justice and the court should exercise the discretion to quash the resulting decision of the Tribunal.

20. Secondly it was suggested that the charges in question were defective in that they had failed to identify the "material particular" referred to in the charges which was said to be false.

21. Thirdly it was suggested that the Tribunal had not given adequate reasons for its findings against the applicant.

(1) The refusal to adjourn:

22. Police (Discipline) Regulations provide the following:-

"17. Preliminary procedure

..........................

(4) Where a charge or charges are to be heard before an appropriate tribunal consisting of a single police officer, the defaulter shall be notified in writing of-

(a) the charge or charges;

(b) the name of the officer constituting the appropriate tribunal;

(c) the place of the hearing; and

(d) the time and date of the hearing, which shall not be earlier than 7 clear days after service of the notice.

19. Procedure

(1) The Commissioner or a senior police officer shall appoint a prosecutor and the defaulter may be represented by-

(a) an inspector of his choice; or

..........................

21. Hearing

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(7) The appropriate tribunal may adjourn the case from time to time and where an application is made for an adjournment it shall be shown by the applicant that such a course would serve the ends of justice and any adjournment granted shall be for a reasonable period only."

23. There was no dispute that the notice under Regulation 17 dated 9th of May 1996 together with the relevant statements and documents, were served on the applicant on 10th May 1996, 10 days before the hearing. On 16th of May 1996, a copy of the brief facts was also faxed to the applicant.

24. The applicant said it was his intention to appoint Chief Inspector Wong Chun Chiu to represent him at the disciplinary proceeding. However Chief Inspector Wong was not available on 20th May 1996 due to his duty commitment, Woman Senior Inspector Yip Ching-han, Peggy was therefore briefed to attend the hearing on 20th May 1996 with a view to apply to adjourn the hearing. The application to adjourn was refused and the hearing proceeded.

25. Women Senior Inspector Yip stated in her affirmation the following:-

" 3. I understood from him (the applicant) that Chief Inspector Wong Chun Chui had agreed to act as his defence representative but Chief Inspector Wong was not available on 20th May 1997 (sic), the day of hearing. I was requested by the applicant to represent him on that day to apply for an adjournment so that Chief Inspector Wong could take up conduct of the case at a later stage when he would be available.

4. Although I had no previous experience whatsoever in disciplinary Proceedings, I was willing to assist by agreeing with the applicant to take up the case to the extent of applying for an adjournment after I learned from Chief Inspector Wong that would normally be granted especially if the charges were of serious nature. I was advised by him to submit 2 grounds in support; his unavailability and sufficient (sic) time for preparing the case.

5. On 20th May 1997 (sic), I attended the said Proceedings and made the application for adjournment on those grounds. It is now my understanding that the transcripts of the said proceedings did not record my submission about Chief Inspector Wong's unavailability and he would require more time to prepare the defence case. However, the Adjudicating Officer refused my application and insisted the case to proceed forthwith. I then telephoned Chief Inspector Wong and told him what happened. He then briefed me on the procedure and asked me to proceed with the case as there was no other option opened to me. The case was concluded on the next day and the applicant was found guilty on all 4 charges."

26. The applicant was entitled to be represented by an inspector of his choice. But the right is not an absolute one. He was only entitled to be represented by an inspector who was willing and able to represent him. If the inspector of his choice was unwilling or unable to represent him for one reason or another, he must get someone else.

27. The applicant could not insist to have Chief Inspector Wong knowing that he was unavailable on the hearing day. He could not on the one hand ask Woman Senior Inspector Yip to represent him and on the other hand said that she was not his chosen representative as he only asked Woman Senior Inspector Yip to apply for an adjournment. If he did, he ran the risk of his application for adjournment being refused.

28. Mr. Dykes argued that the applicant must be given a reasonable opportunity to prepare his case. He cited the case of Reg. v. Thames Magistrates, ex p. Polemis [1974] 1 W.L.R. 1371. The principle is well established and no one can argue against it. But the applicant had been given reasonable opportunity to prepare his case. There was no dispute that the notice under Regulation 17 was served on the applicant 10 days before the hearing, a period longer than the statutory requirement.

29. The Tribunal had taken into consideration all relevant matters in deciding not to grant the application to adjourn. The Tribunal did however indicate that after the prosecution case, adjournment of the defence's case could be considered if necessary. The matter was not pursued.

30. The decision not to adjourn could not be described as "Wednesbury" unreasonable, as Mr. Dykes seem to have conceded. He however argued that the question was not whether the decision not to adjourn was one which no reasonable tribunal could make, but whether the refusal resulted in unfairness.

31. Such observation was supported by Lloyd LJ in R. v. Panel on Take-overs and Mergers. ex parte Guinness plc [1989] 1 All ER 509 when he said at page 531;

"Counsel for the panel argued that the correct test is Wednesbury unreasonableness, because they could, he said, be no criticism of the way in which the panel reached its decision on 25 August. It is the substance of that decision, viz the decision not to adjourn the hearing fixed for 2 September, which is in issue. I cannot accept that argument. It confuses substances and procedure. If a tribunal adopts a procedure which is unfair, then the court may, in the exercise of its discretion, seldom withheld, quash the resulting decision by applying the rules of natural justice. The test cannot be different just because the tribunal decides to adopt a procedure which is unfair."

32. Having said that, Lloyd LJ recognised the importance to bear in mind the view of a specialist tribunal in deciding what was fair as he continued in his judgment:

"Of course the court will give great weight to the tribunal's own view of what is fair, and will not lightly decide that a tribunal has adopted a procedure which is unfair, especially so distinguished and experienced a tribunal as the panel."

33. Lord Donaldson MR made similar observation at page 526;

"I also remind myself, as a general proposition, that a decision whether or not to adjourn a hearing is par excellence a matter for the exercise of judicial discretion by the court of the tribunal seised of the matter and that it is well settled that, on an appeal from such a decision, an appellate court will not intervene only on the ground that it think that it would have reached a different decision. It must be satisfied that the first instance decision was wrong in principle or, which is usually the same thing, that it resulted from a self-misdirection............................

As I have already indicated, I think that, at least in the circumstances of this appeal, it is more appropriate to consider whether something has gone wrong of a nature and degree which require the intervention of the court, rather than to approach the matter on the basis of separate heads of Wednesbury unreasonableness and unfairness or breach of the rules of natural justice. In passing I would, however, accept that whether the rules of natural justice have been transgressed is not to be determined by a Wednesbury test: could any reasonable tribunal be so unfair ? On the other hand, fairness must depend in part on the tribunal's view of the general situation and a Wednesbury approach to that view may well be justified. If the tribunal's view should be accepted, then fairness or unfairness falls to be judged on the basis of that view rather than the court's view of the general situation."

34. On the matters before the court, there was no basis to suggest that the decision not to grant the application for an adjournment could be said to be unfair.

35. The allegation against the application was very serious. But as pointed out quite rightly by Mr. Logan for the respondents, the case was a simple one, particularly when the allegation against the applicant was not disputed and the only issue was whether the applicant made the untrue statement knowingly.

36. There was no indication that the applicant was not defended properly and competently by Woman Senior Inspector Yip. There was not even suggestion to that effect.

37. In judicial review applications, the court is not concerned with technical breach of natural justice. The court is concerned with actual injustice or a real risk of injustice.

38. Mortimer, J. said in The Queen v. Director of Immigration and Refugee Status Review Board, ex parte Do Giau and Others [1992] 1 HKLR 287 at page 314;

"In law there is no 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] CPR 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."

39. I am not satisfied at all that the refusal of the Tribunal to adjourn the hearing could give rise to any complain which justified the interference of the court.

(2) The Defective Charges

40. Mr. Dykes argued that the charges were defective and invalid as the "material particular" said to be false had not been identified.

41. It might not be necessary to reproduce the particulars of the charges again, but the material particular said to be false was clearly set out. The material particulars for the A and B charges were identical, namely "that the valuable property envelope S/N B218059 containing the Rolex watch in question was opened in Court as requested by the prosecutor on 26 January 1995" and those for the C and D charges were "that the valuable property envelope S/N B218059 containing the Rolex watch in question was brought back from Court to Wong Tai Sin Police Station on 26 January 1995 by you personally."

42. The charges need only to state such particulars as may be necessary for giving reasonable information as to the nature of the charges so as to enable an accused person to know what is being alleged against him by the prosecutor. There could be no doubt that the applicant was at all material time aware of what was being alleged against him in the 4 charges. Indeed, he agreed with the allegation but claimed to have made mistake due to faulty memory.

43. The 'Brief Facts' of the case was supplied to the applicant on 16 May 1996, four days before the hearing. Such "Brief Facts" had not been relied on by the prosecution. But it repeated what was already set out in the particulars of the charges. There was never any indication nor suggestion that the applicant was not clear about what was being alleged against. There was no application for further particulars and none could have been made as they had already been set out in the charges.

44. Mr. Dykes relied on Ex p. Daisy Hopkins (1891) 17 Cox C.C. 444 and M'Donald v. Lanarkshire Fire Brigade Joint Committee (1959) S.C. 141.

45. With respect, those cases dealt with special facts of their own and had no application to the present case at all.

46. Indeed Mr. Dykes had made a similar submission before Findlay J. in Yu Yau Tak v. The Commissioner of Police H.C.A.L. No. 62 of 1997.

47. Findlay J. said at Page 3 of his judgment :-

"The false statement alleged is 'you had logged on duty at 0825 hours'. It is not possible to divide this statement into particulars, that is, parts. It describes only one act. It follows that there is only one particular in the statement alleged; and, if there is only one particular in the statement, it cannot help but be the material one. It must be the material one for there is no other. It is only where it can be said that a statement alleged to be false contains more than one particular that there must be a designation of which of them is said to be the material particular. Mr. Dykes says that the material particular is described in paragraph 10 of written closing submission. But this is not so. It adds nothing to the identity of the particulars of the false statement. What paragraph 10 does is to describe in what way it is alleged that the statement was false. It does not identify which of several particulars in the allegedly false statement is the material one. Indeed, as I have said, in this case this would not have been possible. The purpose of the requirement in a charge of this nature to identify the material particular in a false statement is so that the officer charged and the tribunal know which of several particulars in the statement is alleged to be the material one. If there is only particular, this does not arise; it is sufficient to recite the statement containing only the one particular, and say that it was false in this material particular. This is what the charge said in this case, and it is not, in my view, deficient."

48. With respect, I agree with the view of Findlay J. This is no merit in this point whatsoever.

(3) Inadequate Reasons

49. Mr Dykes argued that the reasons given by the Tribunal were not adequate as they do not meet the substance of the case as it was before the Tribunal. It was suggested that the Tribunal has taken into notional standards when it referred to what an officer of similar experience would do or would be able to remember. There was also the suggestion that the use of the phrases such as "difficult to believe", "hardly credible" might suggest that the Tribunal was adopting a standard of proof other than proof beyond all reasonable doubt.

50. The Tribunal had clearly identified the issue involved. The applicant had admitted that the statements he gave were incorrect. The only issue was whether false statements were made as a result of a faulty memory. The applicant gave evidence to support the suggestion that the false statements were made as a result of faulty memory. The Tribunal had carefully considered his explanation and rejected such explanation. The Tribunal also gave detailed reasons.

51. In examining the reasons advanced by the Tribunal, it must be remembered that it was an administrative tribunal. The Adjudicating Officer was a senior police officer with no requirement of proper legal training. At the same time, his experience would no doubt bring in his special knowledge about the police and what could reasonably be expected of a police officer.

52. The Tribunal had in no uncertain term, rejected the explanation of the applicant. Once the Tribunal rejected the explanations of the applicant, the conclusion that the applicant made the false statement knowingly was inescapable.

53. The reasons for rejecting the explanation of the applicant and for convicting him were not Wednesbury unreasonable.

54. It must also be remembered that in judicial review proceedings the court has a limited role to play. As observed by Nazareth V.P. in Au Yeung Kwok Hing v. A.G. Civil Appeal No. 205 of 1994 at page 22 of the judgment:-

"It is helpful to have regard to some of the considerations which have led to the well-established nature of the court's limited supervisory jurisdiction in judicial review. It is to the Commissioner and his officers that the determination and punishment of disciplinary charges have been entrusted by the legislation, and not the courts. And in discharging that function, the former are entitled, and must be presumed to have been expected, if not required, to bring to bear their knowledge and experience of the requirements and operations of the Police Force; and likewise to assess awards in the light shed by the nature and circumstances of the misconduct, upon the desirability and appropriateness of the offending officer remaining in the Force."

55. I have considered carefully the facts of the case and the submissions by counsel. None of the matters raised by the applicant, individually or collectively justify the interference by the court of the decision of the Tribunal.

56. The application must therefore be dismissed.

57. I also make an order nisi that the applicant is to pay the respondents' costs of the proceeding to be taxed if not agreed. The order nisi on costs will be made absolute 14 days after the handing down of the judgment.

(Wally YEUNG)

Judge of the Court of First Instance

Representation:

Mr. Philip Dykes, S.C. instructed by M/s. Chong, Leung & Co. for Applicant

Mr. David Logan, S.G.C. for Respondents