Fu Kin Chi, Willy v. The Secretary for Justice

FACV No. 2 of 1997

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 1997 (CIVIL)
(ON APPEAL FROM CACV No. 34 OF 1997)

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Appeal Committee: Chief Justice Li, Mr Justice Ching PJ, Mr Justice Bokhary PJ, Mr Justice Power NPJ and Sir Daryl Dawson NPJ

Date of Hearing: 26 February 1998

Date of Judgment: 5 March 1998

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J U D G M E N T

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Chief Justice Li:

1. The question arising in this appeal is whether a police officer is obliged to assist in a police investigation into possible disciplinary offences by him by answering questions although his answers might tend to incriminate him in such offences.

2. The appellant (who was a police officer at the material time) submits that a police officer is not so obliged and that he is entitled to refuse to assist in the investigation by exercising the privilege against self-incrimination. The respondent submits that he is so obliged because the privilege against self-incrimination has been abrogated by statute. The Court of Appeal (by a majority) upheld the respondent's submission.

3. The question before us is essentially one of statutory interpretation and the Court's task is to ascertain the intention of the legislature.

The facts

4. The appellant was at the material time a Senior Police Inspector, having risen from the rank of constable since 1980 when he joined the Police Force.

5. In late July 1993, a disturbance occurred at a karaoke lounge in Tsimshatsui East. The alleged victims were middlemen in connection with the supply of a number of portable telephones. The supplier had been paid $240,000 but he disappeared and the portable telephones were never delivered. On the night in question, the middlemen went to the karaoke lounge to explain to the buyers. They alleged that they were assaulted, unlawfully detained and intimidated. During the disturbance, a person entered the room and claimed to be "YT DATS Fu Sir" (Yaumatei District Anti-triad Squad). He then assaulted and intimidated one of the victims, threatening him to come up with the money.

6. As a result of an investigation by the police, it was suspected that the appellant (whose surname is Fu) was involved in the disturbance. Further investigations led the police to suspect that the appellant had allowed another person to pay the fees of a portable telephone he had used for some time, that he organised an unauthorised chit fund involving police officers and that he had associations with triad members. Between 13 September 1993 and 4 February 1994, the appellant was interviewed on a number of occasions. These interviews were initially conducted by Chief Inspector Tse Keung and later by Chief Inspector S B Tarrant who took over on 30 November 1993. The questions asked at first concentrated on the disturbance at the karaoke lounge and later extended to the various matters referred to above.

The interviews prior to 4 January 1994

7. On 13 September 1993, after an identification parade when the appellant was identified by one victim but at which another witness present at the disturbance failed to identify him, the appellant was interviewed under caution. He said: "I haven't done it and I have nothing to say". He was interviewed again later that day under caution. He answered various questions, denying the allegations put to him and saying he could not remember whether he had ever been to the karaoke lounge in question.

8. On 14 September 1993, after a brief interview under caution in the afternoon, the appellant was taken under caution and with his consent to the karaoke lounge in the evening. The staff did not recognise him. The appellant said he had never been to the karaoke lounge before.

9. On 30 December 1993, he was interviewed but not under caution. Chief Inspector Tarrant had now taken over. The appellant answered various questions relating to his family background, the business activities of his father in law, the portable phone and the alleged chit fund.

The interviews on 4 January 1994

10. The appellant was interviewed under caution between 1630 and 1725 hours and between 1729 and 1850 hours. At the outset, he maintained that he did not want to answer any questions concerning the portable telephone or any other matter. He was nevertheless asked various questions concerning the portable telephone to which he replied that he did not wish to say anything. In the second part of the interview, Chief Inspector Tarrant told him that it was his duty to answer questions put to him in furtherance of an investigation and that he was ordered to do so. The appellant maintained that he was entitled to remain silent. He was then told that his answers would not be used in criminal proceedings but would only be used in possible future disciplinary action and ordered to answer. He maintained his right to silence. This he continued to do, when asked about the portable telephone and the alleged chit fund, even after another senior officer reminded him of his duty to answer and that he would be the subject of disciplinary proceedings if he refused. The only question he answered with a simple "yes" was when he was asked whether he knew three police officers.

11. By his solicitor's letter dated 5 January 1994 to the Police, the appellant stated that he was not willing to be interviewed or give any statement to the Police, would not assist in any investigation or answer any question as might at any time be put by the Police and would not be willing to be a witness.

12. On 15 January 1994, the appellant participated in a further identification parade but was not identified by another victim. (This was a different person from the victim who had taken part in the earlier identification parade.)

The interview on 4 and 5 February 1994

13. This is the crucial interview for the purposes of this appeal.

14. By the time this interview took place, Chief Inspector Tarrant had reached a firm conclusion that there was no chance of any criminal charges against the appellant and that a disciplinary investigation should be pursued.

15. The interview lasted from 2340 hours on 4 February to 0045 hours on 5 February. At the outset, Chief Inspector Tarrant told him that his statement "cannot and will not" be used against him in any criminal proceedings but was to be used for internal police investigations including possible disciplinary action against him. He was reminded that it was his duty as a police officer to assist. Chief Inspector Tarrant explained that he was not in a position to say what disciplinary action might be taken. But a report would be submitted for legal advice. The appellant requested that his solicitor be present. This was acceded to although Chief Inspector Tarrant said he was not entirely convinced that the appellant was entitled to have a solicitor present. Questions were asked as to whether the appellant knew various individuals and whether he was present at the karaoke lounge on the night in question. The appellant refused to answer the questions and maintained a right to silence upon legal advice.

16. Prior to this interview, the appellant's solicitor had sent a letter by fax in the afternoon of 4 February to the Police. This letter reiterated his position in the earlier letter save that there was no reference to his unwillingness to be a witness.

The disciplinary charges

17. The appellant was charged with two disciplinary charges under the Police (Disciplinary) Regulations, namely:

"(A) Charge, Contravention of Police Order, contrary to Regulation 3(2)(e) of the Police (Discipline) Regulations, 1982.
Particulars: ... you are charged that on the afternoon of 4.1.94 ... you refused to obey a lawful order given to you by Mr S.B. Tarrant, ... namely to answer questions relating to a police investigation.

(B) Charge, Conduct to the prejudice of good order and discipline contrary to Regulation 3(2)(c) of the Police (Discipline) Regulations, 1982.
Particulars: ... you are charged that between 2340 hrs on 4.2.94 and 0045 hrs on 5.2.94 ... you being a serving police officer ... failed to assist in a police investigation being conducted by Mr S.B. Tarrant, such conduct being to the prejudice of good order and discipline."

The disciplinary proceedings

18. The disciplinary proceedings were conducted by Superintendent F J De Oliveira, the appropriate tribunal constituted under the Police (Discipline) Regulations. The prosecution was undertaken by a Chief Inspector and the appellant was defended by a Senior Inspector. After the appellant pleaded not guilty on 31 March 1994, hearings took place between 24 April and 27 June 1995. On 17 July 1995, Superintendent De Oliveira announced his finding acquitting the appellant of Charge A but convicting him of Charge B. In his reasoned judgment, the Superintendent in acquitting the appellant of Charge A gave him the benefit of the doubt. He found that events took several turns at the interviews on 4 January. Although Chief Inspector Tarrant believed that when the appellant was ordered to answer, he was pursuing a disciplinary investigation, the appellant could well have confused the situation and thought that it was a criminal investigation when he refused to answer. As regards Charge B, Superintendent De Oliveira found that the approach of Chief Inspector Tarrant on 4 February was entirely different from the start of the interview when he made clear that it was a disciplinary investigation. He found that the appellant used the excuse of the right of silence to avoid answering questions relating to the disciplinary investigation, and that he must bear the responsibility for accepting the legal advice given to him by his solicitor. He concluded:

" I believe that in respect of the 'B' CHARGE the defaulter deliberately tried to obstruct a legitimate enquiry into apparently well founded allegations as to his possible misconduct. This attacks the very basis of integrity, professionalism and discipline upon which this Police Force relies. Accordingly, I find that the 'B' CHARGE is appropriate and fully proven, and I find the defaulter 'GUILTY' of this charge."

19. On 20 November 1995, the Commissioner of Police informed the appellant that his appeal against the finding of guilt in relation to Charge B had been dismissed and that a report of the case would be forwarded to the Governor in accordance with Regulation 27(1) of the Police (Discipline) Regulations which provide for this course where it appears to the Commissioner that dismissal or compulsory retirement is merited. The appellant made representations to the Governor. On 17 January 1996, the Secretary for the Civil Service wrote to the appellant informing him that he, in the exercise of the authority delegated by the Governor, had directed that the appellant be compulsory retired with a deferred pension.

The judicial review challenge

20. The appellant challenged by judicial review the finding of guilt on Charge B and the disciplinary sanction. He relied on two grounds. First, he had a right to remain silent. Secondly, he relied on the ground of bias.

The judgment at 1st instance

21. Yeung J dismissed his challenge on both grounds. In relation to the first ground, the arguments before him focused on the appellant's right to remain silent as a criminal suspect.

The Court of Appeal

22. By a majority, the Court of Appeal dismissed the appellant's appeal. The majority (Litton VP, as he then was, and Liu JA) held that the privilege against self-incrimination against possible disciplinary offences had been overridden by statute. Godfrey JA, dissenting, held that it had not been. The majority also dismissed the ground of bias. Godfrey JA did not deal with this ground.

Leave to appeal

23. On 18 June 1997, the Court of Appeal (Mortimer JA, as he then was, Liu and Godfrey JJA) granted leave to appeal to the Privy Council.

24. On 1 July 1997, the People's Republic of China resumed the exercise of sovereignty over Hong Kong and the Hong Kong Special Administrative Region of the People's Republic of China was established under the principle of "one country, two systems" exercising a high degree of autonomy. On that date, the Court was established as the final appellate court of the Hong Kong Special Administrative Region. The appellant's appeal to the Privy Council came to the Court instead.

The question

25. At the hearing before us, Mr John Bleach SC, who appeared for the appellant (not having done so in the courts below), abandoned the ground of bias. The only question therefore is whether the appellant was entitled to remain silent.

The nature of the crucial interview

26. As regards the interview on 4 and 5 February, in my judgment, it is clear from the evidence that:

(1) Chief Inspector Tarrant was conducting a legitimate investigation into possible disciplinary offences committed by the appellant and the questions he asked were proper questions within the scope of the investigation.

(2) The appellant knew that it was a disciplinary investigation and not a criminal one, and that he was asked to assist by answering questions and his answers could and would not be used against him in any criminal proceedings.

(3) Chief Inspector Tarrant made plain to the appellant that it was his duty to assist in the disciplinary investigation and that he was in effect ordered to answer the questions.

27. As I understand his arguments, Mr Bleach SC for the appellant did not challenge the position set out above.

Common law privilege

28. At common law, a person has the privilege from being compelled to answer questions, the answers to which might tend to expose him to any punishment or penalty (including a disciplinary one) and this privilege is capable of application in non-judicial proceedings. That this is the position at common law was accepted by Mr Robert Tang SC who appeared for the respondent and was clearly established by decisions of the High Court of Australia in Pyneboard Pty Ltd v. Trade Practices Commission (1983) 152 C.L.R. 328; Sorby v. The Commonwealth (1983) 152 C.L.R. 281; and Police Service Board v. Morris (1985) 156 CLR 397.

29. In R. v. Director of Serious Fraud Office ex parte Smith [1993] AC 1 (at p.30), Lord Mustill in a judgment which is invariably quoted on this subject pointed out that "the right of silence" does not denote any single right but refers to a disparate group of immunities which differ in nature, origin, incidence and importance and also the extent to which they have already been encroached upon by statute. He identified six immunities or privileges. The privilege with which we are here concerned is the second identified by him, namely:

" A general immunity, possessed by all persons and bodies, from being compelled on pain or punishment to answer questions the answers to which may incriminate them."

Whether abrogated by statute

30. Lord Mustill observed (at p.40):

" That there is strong presumption against interpreting a statute as taking away the right of silence, at least in some of its forms, cannot in my view be doubted. Recently, Lord Griffiths (delivering the opinion in the Privy Council in Lam Chi-ming v. The Queen [1991] 2 A.C. 212, 222) described the privilege against self-incrimination as 'deep rooted in English law', and I would not wish to minimise its importance in any way. Nevertheless it is clear that statutory interference with the right is almost as old as the right itself. Since the 16th century legislation has established an inquisitorial form of investigation into the dealings and assets of bankrupts which is calculated to yield potentially incriminating material, and in more recent times there have been many other examples, in widely separated fields, which are probably more numerous than is generally appreciated.

These statutes differ widely as to their aims and methods. In the first place, the ways in which the overriding of the immunity is conveyed are not the same. Sometimes it is made explicit. More commonly, it is left to be inferred from general language which contains no qualification in favour of the immunity. Secondly, there are variations in the effect on the admissibility of information obtained as a result of the investigation. ... Finally, the legislation differs as to the mode of enforcing compliance with the questioner's demands. ....

In the light of these unsystematic legislative techniques there is no point in summarising the various statutes drawn to our attention. They do no more than show that the legislature has not shrunk, where it has seemed appropriate, from interfering in a greater or lesser degree with the immunities grouped under the title of the right to silence. ...."

31. The crux of this appeal is whether the common law privilege has in this case been abrogated by statute. The relevant statute is the Police Force Ordinance, Cap. 232, including the Police (Discipline) Regulations made thereunder. The question is whether the statute reveals clearly either by express words or necessary implication that the intention of the legislature was that the privilege should not be available to a police officer in a disciplinary investigation. The punishment or penalty to which a police officer might be subjected in a disciplinary proceeding is, of course, a disciplinary one. The abrogation of the privilege where a disciplinary offence is also a criminal offence raises another question, but it would seem that the protection of the police officer in that situation would lie in the inadmissibility in criminal proceedings of evidence elicited involuntarily rather than in the privilege against self-incrimination. It is unnecessary to pursue that question here.

32. There are no express words in the statute which have specifically excluded the privilege and the respondent does not submit that there are any such express words. The respondent's case is one of abrogation by necessary implication.

33. As was pointed out by Gibbs CJ in Police Service Board v. Morris (at p.40), in deciding whether a statute impliedly excludes the privilege, much depends on the language and character of the statutory provisions and the purpose they are designed to serve. Mr Robert Tang SC for the respondent submits that:

(a) The privilege against self-incrimination in respect of possible disciplinary offences (as opposed to criminal offences) has been implicitly abrogated since its operation would undermine the statutory scheme under which the disciplinary investigation was carried out.

(b) Such privilege has been abrogated by the Ordinance by necessary implication, particularly section 30 in the context of the statutory scheme.

The statutory scheme and provisions

34. I turn to examine the statutory scheme under the Police Force Ordinance and the relevant provisions:

(1) The Police Force is a disciplined force under the supreme direction of the Commissioner. See section 4.

(2) The Ordinance lays down the duties of the Police Force. See section 10. As one would expect, the duties specified include preserving the public peace, preventing and detecting crimes and offences and preventing injury to life and property. In short, the Police Force is charged with the maintenance of law and order.

(3) Before entering on the duties of a police officer, every officer must take an oath or declaration of office which is now in the following form:

"I will well and faithfully serve the Government of the Hong Kong Special Administrative Region according to law as a police officer, that I will obey uphold and maintain the laws of the Hong Kong Special Administrative Region, that I will execute the powers and duties of my office honestly, faithfully and diligently without fear or favour to any person and with malice or ill-will toward none, and that I will obey without question all lawful orders of those set in authority over me."

35. See section 26 and the Schedule and section 2A and Schedule 8 of the Interpretation and General Clauses Ordinance added by section 5 of the Hong Kong Reunification Ordinance.

(4) Part III of the Ordinance deals with discipline and duties. Section 30 in Part III provides:

"30. Police officers to obey lawful orders

Every police officer shall obey all lawful orders of his superior officers whether given verbally or in writing and shall obey and conform to police regulations and orders made under this Ordinance."

(5) Section 31 in Part III confers on the Commissioner the power of summary dismissal of any police officer whom he is satisfied is guilty of contravening police regulations or any police orders whether given verbally or in writing.

(6) The Chief Executive in Council (previously the Governor in Council) may make police regulations which may provide for discipline and punishments. See section 45(1)(d).

(7) The Police (Discipline) Regulations have been made. Regulation 3(2) provides:

"The offences against discipline are -

(a) absence from duty without leave or good cause;

(b) sleeping on duty;

(c) conduct to the prejudice of good order and discipline;

(d) cowardice in the performance of duty;

(e) contravention of police regulations, or any police orders, whether written or verbal;

(f) insubordination;

(g) being unfit for duty through intoxication;

(h) neglect of duty or orders;

(i) malingering;

(j) making a statement which is false in a material particular in the course of his duty or in connexion with the discharge by the police force of any of its duties or functions;

(k) unlawful or unnecessary exercise of authority resulting in loss or injury to any other person or to the Government;

(l) wilful destruction or negligent loss of or injury to Government property;

(m) conduct calculated to bring the public service into disrepute."

36. I observe that a number of these offences, such as those in (c) (l) and (m), can be committed by a police officer when he is off duty.

(8) The Police Force has the statutory duty of maintaining law and order. Its integrity and efficiency and public confidence in its integrity and efficiency are of fundamental importance if it is to discharge its duty effectively.

(9) Its integrity and efficiency can only be maintained if the Force can ensure that its members are subjected to disciplinary authority. This could only be done effectively if the Force has the fullest powers to investigate cases of possible offences against discipline and, where justified after investigation, to take disciplinary proceedings.

Abrogation ?

37. Where there is a legitimate investigation into possible disciplinary offences which a police officer might have committed and he is required to assist, the exercise by him of the privilege against self-incrimination to refuse assistance, in my judgment, would plainly undermine and be inconsistent with the scheme. It would, if nothing else, be conduct to the prejudice of good order and discipline. Under the scheme, the Force's integrity and efficiency and public confidence therein are of fundamental importance for its effective functioning, and the effective investigation of possible offences against discipline is essential to maintaining its integrity and efficiency. In my judgment, he has a duty to assist and it is clear that the legislature by establishing the scheme governing the Force intended that a police officer, when asked to assist in such an investigation, cannot say to the Police authorities: "This is none of your business". On the contrary, the legislature intended that it should very much be the business and indeed the duty of the Force to investigate possible disciplinary offences; this being essential to maintaining its integrity and efficiency. That being so, the legislative intention by necessary implication is that the privilege has been abrogated in relation to a disciplinary investigation. Where he refuses to assist, a conviction for the disciplinary offence of conduct to the prejudice of good order and discipline would be fully justified.

38. In the present case, the assistance sought from the appellant in the disciplinary investigation was answers to questions posed to him. Assistance could be sought from a police officer under disciplinary investigation in some other form, for example, by the production of documents. The privilege cannot be invoked whatever the type of assistance required.

39. That the legislature intended by necessary implication to abrogate the privilege in a disciplinary investigation is further made plain by section 30. This imposes on every officer the statutory duty to obey all lawful orders of his superior officers. This duty is also expressly stated in the statutory oath or declaration of office. This duty is relevant in this case since the appellant was in effect ordered to answer the questions posed at the crucial interview. Section 30 contains general words which are intended to apply to a wide variety of situations. They must be construed in the context of the statutory scheme. When so construed, this provision, in my judgment, by necessary implication abrogates the privilege in relation to a disciplinary investigation. As Lord Mustill observed (at p.40), the abrogation of the privilege by necessary implication from general language which contains no qualification in favour of the privilege is a common legislative technique. This was the approach taken by the High Court of Australia in construing a provision similar to section 30 in the context of the Australian statute in Police Service Board v. Morris. But in a case where no orders have been given, and section 30 does not apply, as I have held above, a police officer has a duty to assist in a legitimate disciplinary investigation concerning him and cannot invoke the privilege to relieve him of that obligation.

40. By abrogating the privilege against self-incrimination in relation to an investigation into possible disciplinary offences by a police officer, the legislature has considered it appropriate, as it was entitled to do, that the police officer's common law privilege must yield to the public interest in the maintenance of integrity and efficiency of the Police Force.

Order

41. Accordingly, I would dismiss the appeal with costs.

Mr Justice Ching, PJ:

42. I have had the advantage of reading in draft the judgment of the Chief Justice. I agree that the appeal should be dismissed with costs for the reasons he has given and I have nothing to add.

Mr Justice Bokhary, PJ:

43. I too agree with my Lord the Chief Justice that this appeal should be dismissed.

44. The expression "the right of silence" is a highly evocative one. It arouses, as Lord Mustill observed in Reg. v. Director of Serious Fraud Office, Ex parte Smith [1993] AC 1 at p.30 E-F, "strong but unfocused feelings." It is a thoroughly healthy thing that people do feel strongly about the right of silence. And they are not at all to be blamed if their feelings about it lack focus: for the right of silence has so many manifestations. Hopefully our judgments in this case will make some contribution towards a better understanding by the public of that right or at least certain aspects of it.

45. This case concerns the right of silence within a disciplined service in the circumstances described below.

46. The appellant, a serving police officer, was interviewed by a superior officer who was conducting an investigation into disciplinary offences of which the appellant was suspected. But the appellant refused to answer his superior's questions on the ground that answering

them may condemn him out of his own mouth on a disciplinary charge. And he maintained his refusal even when ordered to answer.

47. As a result, he was convicted of the disciplinary offence of conduct to the prejudice of good order and discipline, contrary to reg. 3(2)(c) of the Police (Discipline) Regulations, Cap.232 ("the Regulations"). The particulars to the disciplinary charge resulting in that disciplinary conviction took the form of an averment that he had failed to assist in the investigation in question. But in substance the case against him ran thus. His superior's order to answer was a lawful order. And his refusal to answer constituted disobedience of a lawful order.

48. Neglect of duty or orders is a disciplinary offence contrary to reg. 3(2)(h) of the Regulations. So a charge under reg. 3(2)(h) is the most obvious one to bring in such a case as that.

49. Be that as it may, s.30 of the Police Force Ordinance, Cap. 232 ("the Ordinance") requires every police officer to "obey all lawful orders of his superior officers". Reg. 3(2)(c) makes "conduct to the prejudice of good order and discipline" an offence against discipline. Any disobedience of a lawful order would inevitably prejudice good order and discipline in a disciplined service. So any such disobedience would fall within reg. 3(2)(c) as well as reg. 3(2)(h). (As for "contravention of police regulations, or any police orders, whether written or verbal" covered by reg. 3(2)(e), I am inclined to think that the police orders there referred to are "police general orders" made by the Commissioner of Police under s.46 of the Ordinance or "headquarters orders" issued by him under s.47 thereof.)

50. The right of silence is a common law right. It includes a privilege against self-incrimination. That privilege is not to be taken as lost merely by joining a disciplined service. And it applies to disciplinary as well as criminal offences.

51. Where a superior is conducting an investigation into disciplinary offences of which a subordinate is suspected, where the subordinate refuses to answer the superior's questions asserting a privilege against self-incrimination and where the superior responds by ordering the subordinate to answer, then whether that order is a lawful one depends on whether the privilege asserted exists.

52. And that in turn depends on whether it has been abrogated by the statutory regime governing the disciplined service concerned. Such abrogation may be either express or by necessary implication.

53. What I have set out in the preceding three paragraphs represents the general principles which constitute what I consider to be the correct approach to the issue at hand.

54. As I understand the decision of the High Court of Australia in Police Service Board v. Morris (1985) 156 CLR 397, those were the principles acted upon by Gibbs CJ and Wilson, Dawson and Brennan JJ being four of the five members of that Court hearing that appeal.

55. I turn now to the statutory regime governing the Hong Kong Police Force. It is constituted by the Ordinance and the Regulations.

56. There are no words in such legislation which single out the privilege against self-incrimination and say in terms that the same is abrogated. So there is no express abrogation.

57. Is there any abrogation by necessary implication?

58. In Police Service Board v. Morris (supra) two police officers in Victoria were convicted of the disciplinary offence of disobeying a lawful order by refusing to answer questions when ordered to do so by a superior officer who was conducting an investigation into the performance of their duties. They challenged their convictions on the ground that their refusal to answer was justified by a privilege against self-incrimination.

59. Murphy J took the view which he expressed thus at p.407: "The privilege against self-incrimination was not excluded but it was not applicable".

60. Gibbs CJ and Wilson, Dawson and Brennan JJ however held that the privilege against self-incrimination extended to disciplinary offences but that the statutory regime governing the police in Victoria had abrogated the same by necessary implication.

61. As I have already indicated, their Honours appear to me to have proceeded on the general principles which I consider to be the ones which we have to apply here. And the statutory regime in Victoria appears to me to be of a nature very similar to the one with which we are concerned. In those circumstances, the whole of their Honours' approach in that case is instructive in this one. It accords due regard to reality while remaining within a framework of principle. That is what I propose to do.

62. Mr Bleach for the appellant makes the point that the officers in Police Service Board v. Morris (supra) were asked about their conduct while on duty. That is true.

63. And I accept that the courts should be even slower to infer that an officer's privilege against self-incrimination has been abrogated in regard to his conduct while off duty than they should be to infer that it has been abrogated in regard to his conduct while on duty. That is because a disciplined service, and indeed any organization, naturally has a more immediate interest in the conduct of its members while they are on duty than while they are off duty.

64. That is to be placed in the scales in favour of the appellant's argument against abrogation.

65. In the Hong Kong Police Force, the offences against discipline are those set out in reg. 3(2) of the Regulations, namely:

"(a) absence from duty without leave or good cause;

(b) sleeping on duty;

(c) conduct to the prejudice of good order and discipline;

(d) cowardice in the performance of duty;

(e) contravention of police regulations, or any police orders, whether written or verbal;

(f) insubordination;

(g) being unfit for duty through intoxication;

(h) neglect of duty or orders;

(i) malingering;

(j) making a statement which is false in a material particular in the course of his duty or in connexion with the discharge by the police force of any of its duties or functions;

(k) unlawful or unnecessary exercise of authority resulting in loss or injury to any other person or to the Government;

(l) wilful destruction or negligent loss of or injury to Government property;

(m) conduct calculated to bring the public service into disrepute."

66. Generally those offences against discipline are ones committed while on duty. But there are some which can be committed while off duty. Take for example the one covered by item (m). By virtue of s.21 of the Ordinance every police officer is "deemed to be always on duty when required to act as such." But even while wholly at leisure and undoubtedly off duty a police officer's conduct can nevertheless fall short of the minimum standard of conduct required at all times of police officers if the public service is to be spared from being brought into disrepute.

67. Item (j) is another example. It will be noticed that it expressly lays down two situations in which a police officer commits an offence against discipline by making a statement which is false in a material particular. The first is where he does so "in the course of his duty". The second is where he does so "in connection with the discharge by the police force of any of its duties or functions". And those two situations are in the alternative to each other.

68. The Court is concerned with whether it is a necessary implication of the statutory regime governing the police here that its officers must answer when questioned by a superior about any suspected disciplinary misconduct of theirs. To distinguish for that purpose between suspected misconduct on the basis of whether the same was while on duty or while off duty would be artificial, unworkable and contrary to the scheme of reg. 3(2).

69. If officers have to answer in those circumstances, then they would have to do so even in regard to acts or omissions while off duty. That is the degree of the intrusion.

70. As to what is desirable, there is something to be said, in the interests of the individual officers of a disciplined service, for preserving in its entirety their privilege against self-incrimination. On the other hand, there is also something to be said, in the interests of society, for wholly or at least partially abrogating such privilege with a view to achieving a disciplined service of the highest probity and reputation reasonably possible. The constitutional climate of a free society under the rule of law is capable of sustaining either of those courses as chosen by the legislature and those lawfully exercising powers of delegated legislation. What is required is that the choice be made plainly if abrogation is chosen.

71. All of that being so, I do not think that the answer is to be found in the mere fact that we are concerned with a disciplined service. Of course all such services, particularly a police force, depend heavily on the confidence which its officers are able to repose in each other and on the confidence which the public is able to repose in all of them collectively. That is the beginning of a necessary implication of abrogation of the kind here in question. But it does not end there. One must proceed to look closely at the disciplined service concerned and the terms of the statutory regime governing it.

72. Section 30 also points in the direction of such abrogation by requiring all police officers to obey lawful orders. But it may not be conclusive on its own since it does not say when an order is lawful and when it is not.

73. It is appropriate to look at the whole of the statutory regime governing the Hong Kong Police Force, including so much of it as is constituted by regulations.

74. Thus in Police Service Board v. Morris (supra) every member of the court considered not only the Police Regulation Act 1958 but also the Police Regulations 1957.

75. And as to the position in the United Kingdom, it is instructive to note that reg. 7(a) of the Police (Discipline) Regulations 1977 there contains an express provision preserving the privilege against self-incrimination in a disciplinary investigation.

76. Where the statutory regime consists of subordinate legislation as well as primary legislation, the subordinate legislation may, as in the United Kingdom, demonstrate that such privilege remains. Or it may combine with the primary legislation to demonstrate that such privilege has been abrogated. And that is what I think the Regulations do in Hong Kong.

77. Plainly reg. 3(2) lays down an intra vires scheme which is crucial to the maintenance of discipline within the Hong Kong Police Force. And in my view that scheme would break down unless the position were as follows:

(1) Where a superior acting in the course of his duty questions a subordinate about disciplinary misconduct of which the subordinate is suspected, then the subordinate has to answer whether the acts or omissions concerned were while on duty or while off duty.

(2) If he refuses to answer, then the superior may order that he do answer. Such order may be express in that the word "order" or any equivalent such as "command" is used. Or it may be implied from the superior's persistence and insistence. Whether express or implied, such order would be a lawful order: one which s.30 of the Ordinance requires the subordinate to obey.

(3) And if he maintains his refusal even in the face of such an order, then his refusal would be in disobedience of a lawful order and of itself an offence against discipline, chargeable under reg. 3(2)(c) or reg. 3(2)(h) of the Regulations, for which offence his removal from the force is a possible penalty.

78. In my judgment that is the law. For, as I have indicated, the scheme crucial to the maintenance of discipline within the Hong Kong Police Force would break down if the position were otherwise. And it is impossible to attribute to the statutory regime in question the effect, on the one hand, of setting up such a scheme and, on the other hand, of preserving within that scheme the seeds of its own destruction, which destruction would leave a crippling void in the regime itself. It follows therefore that it is a necessary implication of the statutory regime in question that it has abrogated so much of the privilege against self-incrimination as would justify the subordinate's silence in the aforementioned circumstances.

79. All that remains is for me to explain why I say that the scheme would break down in the absence of such abrogation.

80. Again I need only give a few examples. Let us start with the disciplinary offence under reg. 3(2)(a): "absence from duty without leave or good cause." Suppose an officer is absent from duty without leave, advances something as a good cause and is questioned by a superior seeking to determine if that cause is really a good one. Is he to be able to say: "I will not answer because my answers may show that the cause was not good after all. That would incriminate me of a disciplinary offence. And you cannot draw any adverse inference against me from my silence because such silence is my legal right."?

81. Next let us take the disciplinary offence of "cowardice in the performance of duty" under reg. 3(2)(d). If a superior is questioning a subordinate about what he did or did not do in a situation involving some personal danger, is the subordinate entitled to refuse to answer because his answers may, on a possible view of them, show that his conduct had been cowardly?

82. What about the disciplinary offence of "malingering" under reg. 3(2)(i)? I would have thought that a lot of questions may well have to be asked and answered if any suspicion of malingering were to be cleared up.

83. And even more questions and answers might be needed if the suspicion were that a statement were "false" in a reg. 3(2)(j) situation.

84. Whether a loss was "negligent" in a reg. 3(2)(k) situation is another example here. That might need a lot of probing.

85. Those are but some examples. They are enough. Under the reg. 3(2) scheme chaos would ensue if subordinates were legally entitled to refuse to answer their superior's questions of that nature.

86. The Court is not concerned with whether the privilege in question could live with some other scheme which the legislature might have created. The question is whether that privilege can live with the scheme which the legislature has created. Plainly it cannot. And therefore it has gone: abrogated by necessary implication.

87. Finally I wish to make this clear. The mere fact that the conduct about which he is being questioned would or might constitute a criminal as well as disciplinary offence does not entitle a subordinate to refuse to answer. As to the position if criminal proceedings were to follow and an attempt were made to introduce his answers in evidence as admissions by him, I am wholly in agreement with my Lord the Chief Justice that it would seem that the protection of the police officer would then lie in the inadmissibility in criminal proceedings of admissions elicited involuntarily rather than in the privilege against self-incrimination.

88. I too would dismiss this appeal.

Mr Justice Power, NPJ:

89. I am in agreement with all that has fallen from the Chief Justice and with the orders he proposes.

Sir Daryl Dawson, NPJ:

90. I agree with the judgment of the Chief Justice and with the orders which he proposes.

Chief Justice Li:

91. The Court being unanimous, this appeal is dismissed with costs.

Representation:

Mr John Bleach SC, leading Mr S H Kwok (instructed by M/S Ricky Ma & Co. assigned by Legal Aid Department) for the Appellant

Mr Robert Tang SC, leading Mr Johnny Mok (instructed by Department of Justice) for the Respondent