Cheng Wai Kit v. Commissioner of Police

HCMP003208/1996

1996, No.MP3208

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

_______________

_______________

_______________

Coram: Hon Sears, J. in Court

Date of hearing: 24 April 1997

Date of judgment: 24 April 1997

________________

J U D G M E N T

________________

1. The applicant attended a chit-fund party which had been organized by his brother-in-law, Mr Kwok Sai Kit, on about four to five occasions between March and August 1993. On 2 August whilst in a restaurant called the Frequent City Restaurant ("the Restaurant"), the Organized Crime and Triad Bureau conducted a raid and arrested a number of persons who were there including this applicant and a WPC. It was abundantly clear to everybody, including this applicant, that at least from that day he knew that Kwok Sai Kit and Kwok Sai Mo who were his brothers-in-law had themselves engaged in criminal activities and two other persons whom I should refer to as "Law" and "Lai" were triads.

2. In May and June, he gave statements to police officers. For some unknown reason, there was very substantial delay. When charges were ultimately brought against this applicant together with the woman police constable, they were not laid until March 1996. Very substantial time had elapsed. They were not given any proper reason for this. It is of course quite wrong for disciplinary proceedings to hang over people's heads for a long time or indeed for a substantial period of time to pass between when a charge should have been brought to when it actually is. Justice delayed is justice denied.

3. This police operation had been apparently underway for a number of months. It had as the Hong Kong Police Force revealed, a code name. I am not quite sure what the upshot of this very long investigation was. Only one person was charged with running an illegal chit fund and was subsequently convicted. A number of persons that were present in this Restaurant were police officers, indeed this Restaurant appears to have been utilized by police officers as much as anybody else. The charges were brought and they were as follows.

4. There was a charge that he contravened Police Orders because he associated with known criminals or triad persons, and there is set out four persons, Lai, Law and his two brothers-in-law. There were three charges of making statements which were false in a material particular which were contained in the statements in August 1993, May and June 1994. He was acquitted of the 2^nd Charge, convicted of the other two, sentenced to a severe reprimand on Charge A and a reprimand on the other two. When it was reviewed by a senior officer he was dismissed from the Service.

5. He brings this application because he says there are grounds on which this Court can quash these convictions.

6. The role of the court in judicial review is well known insofar as disciplinary proceedings are concerned. The court does not sit in an appellate capacity nor does it seek to utilize its own judgment for that of the Commissioner. The Ordinance has entrusted these matters concerning discipline to the Commissioner and it is for him and for him alone to determine them. Nevertheless the court does have a supervisory jurisdiction as it does over other tribunals exercising disciplinary matters and naturally when persons' livelihood are at stake, it is entitled to scrutinize matters to see whether or not they are lawful.

7. Given all the evidence that was given in the proceedings, the adjudicating officer approached the matter very properly. He listened obviously to all of the evidence. Insofar as Charge A is concerned, the two issues for the adjudicating officer to consider was first of all, whether or not the applicant had associated with these persons and secondly, did he know, at the time of that association, of their triad criminal backgrounds. At one time I was minded to think that the 1^st Charge may have be duplicitous in that there were four persons named, but on all the material before me, I do not consider this is so in that the persons whose names had been particularized were dealt with by the adjudicating officer in a separate manner. Whilst naturally I would accept that if he had been convicted of two and not guilty of two, in one sense the charge might have had to be amended, the whole object of this type of charge is whether or not the applicant knows what really is the case which is against him and the duty is a duty to act fairly by the tribunal. I do not consider therefore that there is anything in the point that four persons were named.

8. The adjudicating officer, in my judgment, approached the matter very fairly because he first asked himself the question whether or not there had been an association, and secondly, whether or not he knew of the triad criminal backgrounds. Insofar as the first matter is concerned with "association", this is a standard English word, I do not know what its Cantonese equivalent is, what it means really what it says namely that there must be some relationship. It may perhaps be on a single occasion but generally, it would be on more than one occasion when one can say that there was an association rather than a short social meeting. I have asked to see the videos that were shown to the tribunal, these of course being the undercover videos of a number of occasions in March and May when what was said to being called "the chit-fund meeting" occurred. Sometimes on paper one does not get the flavour of what is going on. Having seen the videos, I have no doubt at all from the evidence that there was an association here by this police officer. His conduct, I would have thought was reckless, attending chit-fund meetings, and he would have known himself that it would give rise to disciplinary charges against him. Although it is clear that his wife is there, it seems to me looking at the videos that he was part and parcel of the meeting and he clearly had associated with these persons.

9. The difficult point of Charge A is whether or not he knew of the criminal activities of these persons. His two brothers-in-law had criminal convictions. It is not necessary for me to deal with that aspect because the adjudicating officer found that he was not convicted and as indeed conceded by Mr Bradley very properly that, although there was one single finding made on Charge A, Charge A related really to his association with the triads. It is a question of fact indeed when people associate with criminals, whether that is a breach of the police regulations. I would not think it covers minor matters such as breaches of traffic regulations, it covers matters of an association with real criminals.

10. However, it is unnecessary to consider any matter with regard to what relationship or association one can have with relatives, even if they are criminals, because, as I said, it is conceded that here the finding was a finding in respect of these two triads. There is no doubt at all on the evidence that they indeed were triads. The adjudicating officer again therefore approached the matter on a very high standard of proof which, in my judgment, ought to prevail in disciplinary tribunals and which affect people's livelihood, namely, that the charge has to be proved beyond reasonable doubt. There is no absolute standard such as that in criminal cases but generally speaking nowadays disciplinary tribunals, whatever the profession or occupation they are dealing with, do utilize a standard which is commensurate with the criminal standard.

11. The method by which proof of knowledge of people with triad criminal background is concerned may well be a difficult one. The persons Lai and Law had some criminal convictions, but it was quite clear that they were active triads engaging in criminal activities. The prosecution sought to rely upon evidence called from police officers who gave evidence, e.g. PC10727 Pak Chi Pang, who gave evidence that in 1986, that would be some seven years before the incident, that he had been posted to Shamshuipo. He said at a time, he did not particularize, that he was walking with another police officer and the person Law was pointed out to him as a triad. Other evidence was given which indicated that a junior officer, who also gave evidence that he knew the person called Lai who belonged to the 14K. There is no doubt that officers in this division did know about these persons. This particular officer had provided information to the OCTB on criminals that were known. He had never had any dealing with the applicant. He had served in the DATS which was, of course concerned with triads. There was a conversation, when Law and Lai had been present, about losing a million dollars, whether Sergeant Cheng heard this or not, I do not know, but in my judgment I have looked all the evidence in some detail, there is very strong suspicion in this case that Sergeant Cheng knew that D2 may well have been engaging in criminal activities. That may have been caused by the conversations that were occurring in 1993. The evidence of earlier years does not drive me to the conclusion that he did know that they were triads at that time. The adjudicating officer said :

"If his subordinantes and colleague knew that LAI and LAW were well-known characters involved in some sort of illegal activities in the divisional area, I could not accept that his knowledge of Law and LAI could be less than that of his junior colleagues."

In my judgment, although, as I said, I consider there is a strong suspicion, it may be that on occasions senior officers do not know more than their junior colleagues. This was not on the evidence which was presented, a logical and reasonable conclusion for the officer to come to bearing in mind as he had recognized that there was a criminal standard of proof, e.g. I can transpose this to ordinary criminal terms that had this evidence been led, no judge could have come to the conclusion so that he was sure that this man did know that Lai and Law were triads.

12. I accept, of course, readily that the police disciplinary tribunal is entitled to act upon hearsay evidence and that the adjudicating officer is entitled to use his own knowledge of police matters and this court is not permitted to substitute its own view on that sort of consideration. The evidence does not disclose that he did know before 1993. The position become a little more blurred in 1993 because of the conversation that occurred in June. Although, again, I respect the views of the tribunal and the police senior officer, it does not demonstrate that he knew at that time that Law was the operator of a gambling house and an apartment housing a gambling den and when the officer said "I am convinced that he knows that Lai and Law are of dubious criminal character", the mere fact that he uses the word "convinced", does not enhance his finding when one examines the evidence.

13. I do not speak Cantonese and I am not Chinese, however, when I viewed the videos myself today, these two persons did appear to me to be persons of very shady nature. They gave the appearance, purely from a visual point of view, that they may well have been engaged in criminal activities. This police officer, as I said, clearly was reckless in his association with these two, particularly as he was involved in this chit-fund. They were unsavoury characters. I do not know that I can say that that turns them into triads. As was said in cross-examination, the expert cannot tell a triad merely by looking at him at all. In my judgment, had there been some other evidence which will link this applicant with either of those triads, in other words, that a report had been brought to his attention whilst as station sergeant that these were suspected triads or something of that nature, or for example that another officer spoke directly to the applicant and told him that these were triads. Had that type of evidence been given together with this other evidence, the adjudicating officer would have been fully justified in coming to the conclusion to which he did.

14. Having examined the matter as fairly as I consider one should, the conclusion which he came to was unsupported by the evidence. Therefore it was unreasonable in the way in which that word is used in proceedings for judicial review. In my judgment, therefore Charge A should have been dismissed.

15. Charge B was dismissed. This was a conversation that occurred in August and I think the adjudicating officer was very fair in his approach in this charge. I think possibly he erred on the sign of caution. Had he convicted him, this court would not have been in a position to set it aside. The position becomes more serious for this applicant because on 17 May, he was interviewed by his senior police officer. I should have indicated that the police raid and subsequent inquiries revealed that there were a number of police officers who were associating with these triads, a woman police constable was charged and acquitted, other police constables were reprimanded. It seemed wrong for police officers to visit this Restaurant and meet these unsavoury characters." Clearly the police was fully justified in taking action as they did. When this conversation occurred in May, the applicant was unaware that he had been secretly filmed over a period in these restaurants, where what were said to be chit-fund meetings occurring when these triads and the brothers-in-law were present. So he was asked a number of questions :

"Q. Do you know a Chinese male called Law Tak-shing, nicknamed Wu So Shing?

A. I know him however I am not on familiar terms with him.

Q. Do you know his background?

A. I am not clear.

Q. How do you come to know him?

A. It was my brother-in-law Kwok Sai Kit who introduced him to me. However I do not know his background. I am not on familiar terms with him.

.....

Q. Do you associate with Lai Ping-wai and Law Tak-shing, i.e. that is make friends with them, you meet them often or occasionally?

A. No."

It was said by Mr McCoy that this was a rolled-up question in that three were being asked. In my judgment, this police office is an experienced and adult person, he knew very well what was being asked, in other words, was he really a friend of them and had he met them often or occasionally? That was the subject of Charge C.

16. Later on, in another interview which occurred in June, i.e. two weeks later, he was interviewed by Detective Senior Inspector, he said that he knew he is from the Organized Crime and Triad Bureau and making investigation into police inspectors having associated with triad elements or other characters. He was asked a series of questions and at the very end, he was asked "You've mentioned that you know Law Tak-shing but not familiar with him, when did you come to know him?" He said "He is a friend of Kwok Sai-kit and when I went to look for my wife at the coffee company, I went across Law Tak-shing by coincidence. Sai-kit introduced him to me. Law might be introduced to me by Wong Man-wai, I do not have any contact or personal connection with both." These were deliberate evasive lies that the police officer was telling and he was telling them for a reason, because he knew from August the previous year that he was under actual investigation for associating with triads. He did not know however that he had been secretly filmed and as far as he was concerned, the only evidence that there was was that he admitted he had these chit-funds. What he was doing in these answers was to deflect the impression that he was an associate. The adjudicating officer said this : "In respect of B and C Charges, I find the evidence overwhelming and therefore find him guilty of the charges."

17. I respectfully adopt what the adjudicating officer said. It is submitted here by Mr McCoy in his usual able way in putting forward his argument on this difficult aspect of the case that the applicant did not give any evidence on this. He was not cross-examined so it may be he did not have any defence to this. These were deliberate lies being told to make the investigating officers think that this police officer had no triad connections. In my judgment, he was clearly guilty of the charges of misleading the police by making these deliberate lies. As I said, I understand the unusual position he found himself, he obviously wanted to cover his tracks. Whether these lies were because he was panicking in that the evidence that he knew the police had and that he also knew that these were triads, that he now knew that they were triads, he knew that he was liable to get into trouble because he was, on any view, having a chit-fund party with triads. That may have been one of the matters that was in his mind. But I have no doubt at all that he committed these offences.

18. When he came before the adjudicating officer for Charge A which I have quashed, which would appear to be the more serious charge, he was given a severe reprimand. He was also recommended for a warrant for dismissal. On C and D Charges, he was reprimanded. When the matter went further and there was a review from the senior officer, he said this :

"However, the charges the Defaulter was convicted on were very serious. A senior NCO who associated with triad personalities and known criminals would have serious consequences, damaging not only the defaulter's own reputation and integrity, but also that of the Force. Even more so, the Defaulter as a Senior NCO, in the course of the OCTB enquiry, on two proven occasions, made statements to a senior inspector which were false in a material particular. Such deliberate course of action will make the Commissioner lose confidence in the Defaulter's integrity not only a Station Sergeant but also as a Police Officer."

The sentence was increased on each charge to compulsory retirement with benefits which meant he loses his job, he gets his pension but he cannot actually get his pension for 13 years. What this police officer did and his conduct obviously makes him guilty of those offences.

19. What I propose to do is to quash Charge A and the convictions on Charges C and D stand. I think, as a matter of fairness, I should remit the matter to the Commissioner for him to reconsider the sentence in the light of the judgment of the court. Questions of sentence are essentially for the tribunal entrusted with control over a particular profession. They know better than anyone else what is and what is not an appropriate sentence. This court does not interfere with their sentence unless the case is really extreme. These were serious matters. However, I think it only right that I should draw to the Commissioner's attention the following considerations :

(1) He has been acquitted of Charge A which was associating with known criminals;

(2) The evidence disclosed that the attendance at the chit-fund was probably as a result of his wife became involved;

(3) There is no evidence that this police office misused his position or indeed did anything as a police officer which would compromise his or the Force's integrity;

(4) That this charge was hanging over his head for a substantial period of time. This is unfair, people should not have matters of this nature hanging over their heads for three years and there is no indication, as far as I know, that in the three years that he was awaiting his charge, he has done anything other than faithfully serve the Police Force;

(5) He is a person who had served 22 years and received some outstanding commendations during this time.

The Commissioner will consider, I am sure, those matters and perhaps inquire into the reasons why these lies were told. Judges when they direct juries on lies, are entitled to indicate that people may tell lies for a variety of reasons. He clearly was wishing to play down his part in what had happened. Whether that justifies a conclusion that the senior police officer made that such deliberate course of action will cause the Commissioner to lose confidence in his integrity as a police officer is a matter essentially for him, because, as I said, the Ordinance has entrusted these matters to the Commissioner. What sentence, therefore, that he would wish to impose is a matter of him.

20. So what I do is I remit the matter to the Commissioner for him to re-consider the sentence in the light of the court's judgment.

Representation:

Mr G.J.X. McCoy, inst'd by T.C. Foo & Co., for Applicant

Mr N. Bradley, C.C. and Mr Chisum Ho, C.C. (Crown Solicitors), for AG/Respondent