Yu Chee Yin v. The Commissioner of the Independent Commission Against Corruption

HCAL000097A/2000

HCAL97/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 97 OF 2000

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Coram: Hon Hartmann J in Court

Dates of Hearing : 13 and 14 June 2001

Date of Handing Down Judgment: 31 July 2001

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J U D G M E N T

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INTRODUCTION

1.The applicant in these proceedings for judicial review was at all material times an officer in the Independent Commission Against Corruption ('the ICAC' or 'the Commission'). He had joined that body in 1979, rising to the rank of Senior Investigator. By letter dated 9 October 1999, the applicant's appointment with the ICAC was terminated. The termination was made pursuant to section 8(2) of the Independent Commission Against Corruption Ordinance, Cap.204 ('the Ordinance'), which provides that the Commissioner of the ICAC may terminate the appointment of an officer if 'he is satisfied that it is in the interests of the Commission to do so'.

2.The applicant's termination was the culmination of a lengthy internal investigation into his activities and those of three fellow officers. That investigation had originally encompassed possible criminal charges but suggestions of any criminal conduct had fallen away at a relatively early stage and the investigation had focused instead on the fitness of the applicant and the others to remain as officers of the ICAC.

3.The applicant had himself first become aware of the investigation in late March 1998 when he had been interviewed and interdicted from duty.

4.The investigation had centred on the activities of the officers on the evening of 10 December 1997. On that evening they had all attended a dinner at a restaurant. Seemingly, the dinner (eaten in a private room) had been hosted by an ex ICAC officer named Tsui Ka Kit; known as Alex Tsui. Mr Tsui, who had once held the elevated rank of Senior Assistant Director of the ICAC, had been the subject of very considerable publicity when his own appointment had been terminated in 1993.

5.More will be said of the dinner later in this judgment. At this early juncture, it is sufficient to say that the applicant has never denied attending the dinner. Rather, it has always been (and remains) his assertion that it was no more than an innocent social gathering. The Commissioner of the ICAC, under advice, has taken a very different view. This is illustrated by the wording of the opening paragraph of the 'statement of reasons' annexed to the letter of termination dated 9 October 1999 which reads :

" The Commissioner is satisfied that it is in the interests of the Commission to terminate your appointment .... for the reasons that your conduct has cast grave doubt on your judgement and integrity as an ICAC officer and on your loyalty to the Commission ...."

THE GROUNDS OF CHALLENGE

6.Originally, the applicant's challenge to the lawfulness of the decision of the Commissioner was based on three grounds. The first two of those grounds were as follows; namely, that :

(i) The Commissioner's decision to terminate the employment of the applicant was based upon information from an undisclosed source or information which may not be admissible in evidence in formal disciplinary proceedings, therefore, it was grossly unfair and a breach of the rules of natural justice.

(ii) In breach of those rules, the applicant was given no fair opportunity for correcting or contradicting what was said against him, and was given no opportunity to test, by cross-examination or otherwise, the veracity of the statements upon which the Commissioner relied.

7.However, during the course of the hearing Mr Harris, for the applicant, conceded that he faced difficulties with those first two grounds as worded. In the result, the first ground was amended, being split effectively into two grounds, while the second original ground was abandoned. Although the amended grounds were not formally drafted, I understood that in essence they were as follows :

(i) In the particular circumstances of this case, fairness dictated that the Commissioner divulged all the materials upon which he relied (or may have relied) to the applicant and his reliance on undisclosed materials was a breach of natural justice.

(ii) In reaching his decision to terminate the employment of the applicant, the Commissioner relied on materials which were either of such a tenuous nature or so discredited by their own internal inconsistencies that they were of no probative value.

8.The third ground has remained unaltered and is as follows; namely, that :

(iii) The Commissioner stated as a fact that the dinner on 10 December 1997 was attended by nine persons including an ex ICAC officer named Chiu Chi Ming and two others, yet no statements were sought by him from those other persons. As a result, that allegation remained uncorroborated by any independent source. The Commissioner's failure to conduct adequate enquiries was unreasonable (I take that to mean a breach of procedural fairness) and led him to a conclusion which no person or body acting reasonably could have reached.

9.As Mr Harris argued the matter, all the applicant's grounds of challenge encompassed two fundamental assertions. First, that the process of coming to the decision to order the termination of the applicant was unfair to him and, second, that the unfairness resulted in a decision which was perverse or irrational; in short, a decision which no reasonable decision-maker could reach.

10.To understand the thrust of Mr Harris's arguments, it is, I believe, necessary to consider a number of preliminary matters; first, the factual background, second, the fundamental principles of fairness applicable in administrative procedures of the kind that led to the termination of the applicant's appointment and, third, the statutory process which the Commissioner was obliged to follow in reaching his decision.

THE FACTUAL BACKGROUND

(A) The applicant's version

11.The applicant has at all times been consistent in his version of what happened on 10 December 1997. His version may be summarised as follows :

(a) On the afternoon of 10 December 1997, he spoke to a fellow ICAC officer named Liu Kin Che, known as Jacky Liu, who invited him to the dinner. The applicant was told that Alex Tsui would be there but understood that it would be nothing more than an informal, social gathering.

(b) The applicant knew that Alex Tsui had been forced to leave the ICAC in controversial circumstances and that there was no love lost between him and the Commission. However, although not in any way of a friend of Alex Tsui - indeed, they had never met - the applicant admired him and wanted to meet him. He saw no reason to report the matter. It was nothing more than a social gathering held out of working hours; in short, a purely private affair.

(c) The applicant was told to rendezvous that evening at the Tsim Sha Tsui MTR station. He waited there and met Jacky Liu and two other serving officers. The other two officers were Sit Ah Lung, known as Alan Sit, and Ting Ka Lun, known as Allen Ting.

(d) When they met, Jacky Liu told them that, as a number of people were going to the dinner and it was to be held with Alex Tsui, it would be best to 'keep a low profile'. For that reason, Jacky Liu suggested that they walk separately. It was agreed that this should be done.

(e) As to the number of people who attended the dinner, there were never more than six persons present; namely, the applicant, Jacky Liu, Alan Sit, Allen Ting, Alex Tsui and Lam Ping Cheong, a former ICAC officer who practised as a lawyer and, as such, had acted for the defence in a number of ICAC prosecutions.

(f) The applicant only engaged Alex Tsui in social talk, mainly about sport. There was no discussion about work. He had no conversation (that he could remember) with Andrew Lam who in any event was the last to join the gathering and only remained for a short period of time.

(B) Other evidence available to the Commissioner

12.Seemingly, what was not known to the applicant (or the others who attended the dinner) was that their movements that evening were being monitored by a group within the ICAC trained to carry out surveillance. The report of the surveillance officers was made available to the Commissioner and, inter alia, revealed the following :

(a) At around 6 o'clock that evening, Alan Sit and the applicant were seen in the concourse of the MTR station. However, they remained at a distance from each other and did not appear to make contact.

(b) Shortly thereafter Jacky Liu came to the concourse. He joined Alan Sit and the two made for the exit. When they did so, the applicant moved too, staying some distance behind them and appeared to be taking 'counter-surveillance precautions'. Out on the street, the applicant remained behind Jacky Liu and Alan Sit and appeared to be 'spotting for persons following them'.

(c) At the restaurant, Jacky Liu, Alan Sit and the applicant entered the private dining room. Shortly thereafter Allen Ting joined them.

(d) The next person seen entering the room was a Chinese male in his middle years. A description was recorded including the fact that he resembled a former ICAC officer named Chiu Chi Ming whose appointment with the Commissioner had been terminated.

(e) The next two persons to enter the room were Alex Tsui and Lam Ping Cheong. They entered together.

(f) About an hour later, two Chinese males met at the reception of the restaurant and entered the private dining room together.

13.According to the report of the surveillance team, a total of nine persons attended, three more persons than the applicant had admitted being present.

14.As to the presence of the man who resembled the former ICAC officer, Chiu Chi Ming, a study of immigration records revealed that Mr Chiu had arrived in Hong Kong the day before the dinner and had departed two days later.

15.As with the applicant, both Alan Sit and Allen Ting were interviewed as part of the ICAC's internal investigation. The transcripts of their interviews were made available to the Commissioner.

16.Sit was first interviewed on the night of 28 March 1998. If the contents of his statement are accepted, he clearly knew of the dinner with Alex Tsui before 10 December and was concerned that ICAC investigators or the police Special Branch might get to know of it. He confided in Jacky Liu and the two spoke in Liu's office. Liu said that he would arrange for counter-surveillance measures to be taken. The colloquial term used was that of 'mine sweeping'. Sit's concerns, therefore, indicated a meeting of far greater sensitivity (and perhaps potential prejudice for serving ICAC officers) than the inherently innocent social gathering spoken of by the applicant.

17.In the same interview, Sit said that six persons were present at the dinner; namely, himself, the applicant, Allen Ting, Jacky Liu, Alex Tsui and Lam Ping Cheong. However, as Mr Blanchflower, counsel for the Commissioner, pointed out, he did not specifically deny the presence of other persons. In that regard, to quote Mr Blanchflower, he 'left the door open', when he said : "I do not recollect what other persons were present apart from the above-stated six persons, including myself".

18.The following day (29 March 1998) in the mid-afternoon, Sit gave a further interview which he commenced by saying : "I now recollect there should have been three other persons other than the six (including myself) I mentioned in my last statement." Sit said that the persons whom he had not earlier mentioned were a man named 'Ah Ming', introduced as a 'former ICAC colleague', and, arriving later, two men who were introduced to those present by Jacky Liu 'in broken Putonghua'. In summary, Sit spoke of nine persons attending the dinner, a number which tallied with the report of the ICAC surveillance team.

19.Ting was first interviewed late on the night of 27 March 1998, the interview concluding in the early hours of the morning. As to the taking of counter-surveillance measures, Ting said that he received specific instructions from Jacky Liu in this regard. Liu said that he would walk ahead to the restaurant with Sit. To quote from the English translation of the interview, Jacky Liu said to Ting that :

"....Simon [the applicant] and I were to stay behind, to be responsible for 'mine sweeping'. I understood him to mean to see if persons were following them or not. I believe he did not want office people or some persons not identified by him to come to know about our having dinner at the Tsimshatsui East restaurant. He told me to perform 'mine sweeping' and that was for hoping that if ever I noticed persons following, whether they be ICAC persons or persons from other law enforcement bodies, I was to report to him."

Ting continued by saying :

"....Simon and I conducted the so called 'mine sweeping' task Jacky LUI mentioned then. But walking on and on, I lost sight of them."

20.Concerning the number of persons at the dinner, Ting said that he remembered seven being present. The seventh person he spoke of was a former ICAC officer known as 'Ah Ming'. His name, said Ting, was Raymond Chiu. But, to employ Mr Blanchflower's phrase for a second time, he too left the door open as to the exact number at the dinner when he said :

".... as to whether there were other persons present or not, I dare not say for sure. But even if there were really other persons present, I believe I was not acquainted with those persons, and at the most just nodded and greeted each other."

21.The following morning, Ting gave a further interview in which he said that there had, in fact, been nine persons at the dinner and not seven. In respect of the extra two, he said :

"I remember the two males arrived later than we did. Having arrived, Jacky greeted them and introduced them to me, SIT and Simon YU [the applicant]. I remember at that time Jacky spoke in Putonghua with the two persons ...."

Ting continued by saying :

"The two sat in between Simon YU and Jacky. So I believed Simon would talk with them but I do not know their conversation contents."

22.Evidence was obtained from the restaurant itself but only in early April 1998 after the applicant had suggested that, to verify numbers, the investigators should check the restaurant bill. The manager of the restaurant said that the dining room had been reserved by Alex Tsui. He had made a reservation for four persons. The manager, however, could not recall how many persons had, in fact, sat down to eat. Nor did he have a record of what was eaten. All he had was a record of the bill which came to $2,464.

23.Those responsible for conducting the ICAC's internal investigation chose not to approach those other identified persons who they believed to be at the dinner; namely, Alex Tsui, Raymond Chiu (Chiu Chi Ming) or Lam Ping Cheong.

(C) The purpose of the dinner

24.Although the applicant has all along contended that the purpose of the dinner was purely social, evidence was placed before the Commissioner to suggest otherwise. A detailed analysis of the evidence is not required. Suffice to say that both Sit and Ting indicated that the two unidentified men who joined the dinner late were officials of an independent state organization, the implication being that it was an organization tasked with security matters. Mr Harris accepted that if these men had, in fact, been present and if - as the general tenor of the evidence implied - their purpose had been to cultivate links of an illicit kind in the ICAC, that would have been a matter to be viewed by the Commissioner with utmost seriousness.

25.In the circumstances no issue was taken with the fact that, if the Commissioner had reached his decision lawfully, he was entitled to come to a finding that the applicant was a man whose integrity could not be trusted and that it was therefore in the interests of the Commission for his appointment to be terminated. Integrity is the antithesis of corruption. If an officer, because of a lack of integrity, cannot be trusted with confidential information then he is of no value to the Commission. Indeed, he is a liability to it. It is self-evident, I believe, that corruption cannot be effectively combated by officers who are themselves liable to be corrupted.

FAIRNESS : A CONSIDERATION OF THE FUNDAMENTAL PRINCIPLES

26.In the course of his submissions, Mr Harris said that, in respect of the applicant, the Commissioner was not presented with 'clear-cut, probative, unequivocal evidential material'. The other ICAC officers under investigation who had spoken of counter-surveillance measures and of nine persons being at the dinner had only done so after, at first, effectively denying those things. Those other officers had not given consistent accounts. Accordingly, argued Mr Harris, in the circumstances of this case, standards of fairness not being immutable, it was incumbent upon the Commissioner to take a number of measures which he failed to take. First, he should have divulged all the material upon which he relied (or may have relied) so that the applicant could test all of that material and/or use it in making his representations. The use (or potential use) of undisclosed material by the Commissioner was therefore, in the circumstances, unfair to the applicant. Second, the failure to obtain statements from all the identified persons who alleged attended the dinner meant that the Commissioner was relying on 'selected' evidence and deprived the applicant of an opportunity to rely on any of the material that should have been obtained. That failure, in the circumstances of this matter, was again unfair to the applicant.

27.What may or may not amount to unfairness in administrative matters enquiries had been canvassed in a large number of cases. In R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, a decision of the House of Lords, Lord Mustill distilled the fundamental principles - which, he recognized, are essentially intuitive in nature - down to six in number. In my view, those principles remain an invaluable guide. I have, for ease of reference, broken down into separate paragraphs each of the principles. They appear in the judgment (at page 560 D-G) in a single paragraph ：

" What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that :

(1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.

(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.

(4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.

(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.

(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

28.It is important, I believe, to take note of Lord Mustill's caveat; namely, that it is not enough for an applicant to persuade a court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, an applicant must show that the procedure is actually unfair.

29.In addition, Lord Mustill warned that the court must constantly bear in mind that it is to the decision-maker, not the court, that the legislature has entrusted not only the making of the decision but also (to a greater or lesser degree) the choice as to how the decision is to be made.

30.In defining his principles, Lord Mustill said that what fairness demands is dependent on the context of the decision and invariably an essential feature of the context will be the statute which creates the discretion to make such a decision : see principles 3 and 4. To what extent, therefore, was the Commissioner, in coming to his decision to terminate the applicant's appointment, working within the context of the Ordinance?

THE STATUTORY CONTEXT

31.When the Ordinance was first enacted in 1974, section 8(2) read simply :

" The Commissioner may, if he is satisfied that it is in the interests of the Commission, terminate the appointment of an officer without assigning any reason therefore."

32.However, in December 1994, a committee appointed by the then Governor with the mandate of reviewing the various powers of the Commission and its manner of operation, a body known as the ICAC Review Committee ('the Committee'), recommended that changes be made to section 8(2). In Chapter 14 of its report (at 14.21), the Committee said :

"We consider that the functions and responsibilities of the ICAC are such that the Commissioner should continue to have the authority to remove without delay any officer whose loyalty or integrity is in doubt. At the same time, natural justice demands that the officer should be given an opportunity to defend himself before the Commissioner takes a final decision. Unless the officer is informed of the reasons for the intended course of action, he can neither state his case nor lodge a meaningful appeal against the Commissioner's decision ...."

33.As to the guiding principles underlying any code of procedure, the Committee (at 14.25) made the following recommendations :

"We recommend that the power of the Commissioner to terminate the service of an officer under section 8(2) of the Ordinance should be retained. However, the procedure for taking such action should be formalized to reflect the following important principles :

* the officer concerned should be informed of the reasons for contemplating such action;

* he should be given an opportunity to state his case;

* he has a right of appeal to the Governor."

34.Having regard to the special responsibilities of the ICAC and the need of the Commissioner to deal speedily with officers believed to be undermining that work, the Committee recommended (by a majority) that, although an officer should be entitled to make representations, no form of disciplinary tribunal need be constituted.

35.However, the Committee recommended that, before a decision to terminate an officer's appointment was made, the Commissioner should submit the facts of the case, together with any representations made by the officer, to an independent advisory body which would render its views on the matter. The final decision, however, would rest with the Commissioner. It was the recommendation of the Committee that the appropriate body would be the Advisory Committee on Corruption ('the ACOC'), a body containing representatives of the broader public as well as officers of the Commission.

36.To give these recommendations the force of statute, section 8(2) of the Ordinance was amended in 1996. The relevant portion of the section now reads :

"(a) Subject to paragraph (b), the Commissioner may, if he is satisfied that it is in the interests of the Commission to do so, after consulting the Advisory Committee on Corruption, terminate the appointment of an officer.

(b) Before terminating an appointment under this subsection -

(i) the Commissioner shall by notice in writing inform the officer concerned that the termination of his appointment is under consideration and the reasons therefore; and

(ii) in the notice such officer shall be given a period of not less than 7 days within which to make, and is hereby authorized to make if he so wishes, written representations to the Commissioner as regards such reasons or as to why his appointment should not be terminated or as regards both.

(c) Where an appointment is terminated under this subsection-

(i) the Commissioner shall notify the officer in writing of the termination; and

(ii) the officer may, within the period of 21 days beginning on the date of the notification under subparagraph (i), appeal to the Governor against the termination."

37.It should also be said that, following the Committee's report, but before the amendment to the Ordinance, the Commissioner issued an internal staff circular setting out the procedures to be adopted if termination of an officer's service was being contemplated. The purpose was clearly to try and ensure that the ICAC's internal procedures accorded with the Committee's views of what fairness demanded. I am told that the circular, which echoes the provisions of section 8(2) as amended, continues to be employed and was employed in respect of the applicant.

38.The circular sets out the following procedures :

"(a) The officer will be interviewed by CAC ['the Commissioner'] or an officer acting on his behalf to assist CAC in deciding whether the officer has a case of termination of appointment to answer."

This procedure of interviewing the officer constitutes the 'internal investigation'. Its purpose is to ascertain whether the officer has a case to answer; in short, whether the matter needs to be taken further. The interviews will invariably give the officer a good idea of the allegations made and give to the officer the opportunity to explain his position.

"(b) If there is a case to answer, the officer concerned will be informed by written notice:-

(iii) that the termination of his appointment is under consideration and of the grounds for such action; and

(iv) that the officer may within a period prescribed in the notice, which will be not less than seven days, make written representation to CAC regarding the grounds of the contemplated dismissal, and/or as to why his appointment should not be terminated.

The procedures outlined here are mandated in the Ordinance in terms of section 8(2)(b)(ii). The Commissioner is obliged to inform the officer that he is considering the termination of his appointment and to give the reasons why he is doing so. The officer is then given an opportunity to make representations, albeit this must be done within a limited period of time. These procedures accord with Lord Mustill's fifth and sixth principles.

"(c) A report of the case together with the officer's representations and CACs' views on those representations will then be submitted to the Advisory Committee on Corruption (ACOC) for advice; a copy of the material submitted to ACOC will be provided to the officer."

This procedure is mandated in section 8(2)(a) of the Ordinance which directs that the Commissioner will, before a decision is made, consult with the ACOC. So that the officer knows exactly what material is being considered by the ACOC he is supplied with a copy of that material.

"(d) ACOC will consider the case, may invite the officer to appear before it, and will advise CAC who will decide in the light of that advice whether or not to terminate the appointment."

Although the Ordinance makes no reference as to how the ACOC shall carry out its advisory duties, the internal circular makes it plain that it has broad powers including, in its discretion, whether or not to invite the officer to appear before it to make oral representations. That being so, it must follow that it has the power, in its discretion, to receive further written submissions from the officer. The Commissioner, of course, retains jurisdiction to make the final decision but he may only do so after consulting with the ACOC and having taken account of its advice.

COMPLIANCE WITH THE STATUTORY SCHEME AND THE INTERNAL CIRCULAR

39.Before considering the applicant's individual grounds of challenge, it should be said that no allegation has been made that the Commissioner failed strictly to follow the procedure set down in section 8(2) of the Ordinance or the Commissioner's internal circular. As I understood the broad intent of Mr Harris' submissions, it was to the effect that, in the circumstances of this case, fairness dictated that the measures to which he has referred should have been put into effect as part of the scheme of procedure.

THE APPLICANT'S FIRST GROUND : DISCLOSURE OF ALL MATERIALS

40.As to the issue of disclosure, Mr Harris submitted that full details of the surveillance report compiled by ICAC operatives should have been made available to the applicant; presumably so that he could consider it and make detailed representations as to why it should not be accepted. In addition, full copies of the various statements made by the other officers under investigation, especially Sit and Ting, should have been made available to the applicant; presumably so that he could consider them too and make representations concerning the shift in their admissions : as Mr Harris expressed it, why it was that the statements were 'tainted'.

41.In my judgment, however, no breach of natural justice is evidenced by the fact that the applicant did not receive all the material to which Mr Harris made reference. The technical rules of evidence applicable to civil and criminal proceedings form no part of the rules of natural justice. Civil and criminal litigation may compel full discovery but no such rule can be imported into administrative proceedings of the kind under review. See, for example, Mahon v. Air New Zealand Ltd [1984] 1 AC 808 (PC) in which Lord Diplock (at 820) said :

" The rules of natural justice that are germane to this appeal can, in their Lordships' view, be reduced to those two that were referred to by the Court of Appeal of England in Reg. V. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 Q.B. 456, 488, 490 .... The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.

The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.

The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result." [my emphasis]

42.Clearly, in my view, what is required is no more than that a person under risk should be sufficiently informed of the allegations made against him so that he is not in any relevant way 'left in the dark' and thereby deprived of the opportunity to produce his own material for consideration, whether that material be in the form of representations or third party evidence.

43.In the present case, when the applicant was advised in terms of section 8(2)(i) that the termination of his appointment was being considered, he received a detailed statement of reasons. It is valuable, I think, to repeat that statement, if only to illustrate the degree to which it details the allegations made :

"(i) At the instigation of Chief Investigator LUI Kin-che (CL LUI), you attended a dinner meeting in East Ocean Restaurant in Tsimshatsui East on 10 December 1997 and met Mr TSUI Ka-kit, former Deputy Director of the ICAC who was dismissed in 1993. Acting on CI LUI's instruction, you provided counter-surveillance for CI LUI and Senior Investigator SIT Ah-lung (SI SIT) when they proceeded to the restaurant to ensure that they were not followed, so that the meeting would not be made known to the ICAC; and

(ii) In addition to CI LUI, SI SIT and yourself, the dinner meeting was attended by Mr TSUI, Senior Investigator TING Ka-lun, Mr Andrew LAM Ping-cheong, a former ICAC officer, Mr CHIU Chi-ming, another ICAC officer who was dismissed under Section 8(2) of the ICAC Ordinance, and two other persons. At the material time, the ICAC was carrying out investigations into serious offences suspected to have been committed by persons known to be associates of Mr TSUI. On 1 September 1997, you were involved in an arrest and search operation involving some of the associates. Mr Andrew LAM is a solicitor who represented several suspects in the ICAC investigations. You have failed to give a satisfactory account of the purpose of the dinner gathering and discussion held. Furthermore, you said only six persons attended the dinner meeting while in fact nine person had attended. When interviewed during the disciplinary investigation, you failed to disclose the presence of Mr CHIU and the two other persons. Your failure to give a full and truthful account of the meeting has left the Commissioner in serious doubt as to the extent of your involvement with Mr TSUI and the other personalities concerned."

44.Having read that statement, the applicant could hardly have been left in doubt as to the exact nature of the allegations being made. Nor does it appear that the applicant was in any way restrained from making detailed representations. These representations, prepared by his solicitors, ran to some 10 pages. The applicant was, therefore, able to voice his criticisms of the assertions being made and, if he so wished, to present evidence in support of those criticisms. In such circumstances I do not see how a failure to receive full discovery from the Commissioner can be said to constitute a breach of the rules of fairness.

45.It is true that the applicant would not have known the source of some of the allegations being made. But, as Mr Blanchflower expressed it, the rules of natural justice do not require a decision-maker to disclose the source of his information. For example, public policy may dictate that the source not be disclosed. In the present case the surveillance evidence was obtained by ICAC operatives who, for cogent reason, require to remain anonymous and, in addition, to keep their methods of procedure confidential.

46.In support of his contention that natural justice in administrative enquiries does not require disclosure of sources, Mr Blanchflower referred to R. v. Gaming Board for Great Britain, ex parte Benaim and Khaida [1970] 2 QB 417. In determining whether applicants should be granted licences, the Gaming Board questioned them on information that had been obtained from sources which the Board declined to disclose. Application was made for an order of certiorari to quash the findings of the Board on the basis that the refusal to give the unsuccessful applicants the required information had been wrong in law. The Divisional Court refused leave and the applicants appealed to the Court of Appeal. In dismissing the appeal, Lord Denning MR spoke (at page 431) of the type of information that the Board could consider :

" Seeing the evils that have led to this legislation, the board can and should investigate the credentials of those who make application to them. They can and should receive information from the police in this country or abroad who know something of them. They can, and should, receive information from any other reliable source. Much of it will be confidential. But that does not mean that the applicants are not to be given a chance of answering it. They must be given the chance, subject to this qualification: I do not think they need tell the applicant the source of their information, if that would put their information in peril or otherwise be contrary to the public interest."

The Master of the Rolls continued by saying :

".... But, without disclosing every detail, I should have thought that the board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair. And the board must at all costs be fair. If they are not, these courts will not hesitate to interfere."

47.It is evident, I believe, that the amendment to section 8(2) in 1996 was made to ensure procedural fairness but to do so within the context of the public policy considerations that applied (and continue to apply) to the Commissioner. Lord Denning's observations are therefore, in my view, of direct relevance in the present case.

48.Mr Harris argued with vigour that, whatever the general principle may be, the special circumstances of this case demanded what, in reality, amounts to formal discovery of documentary material. I cannot agree. Although the factual background may be unusual, that of itself does not create a special set of circumstances. As Mr Blanchflower pointed out, the other officers under investigation did not make quite the volte face that Mr Harris has suggested. As Mr Blanchfolower expressed it, both Sit and Ting 'left the door open' in their first statements and moved to their final version, in each instance, within a matter of hours.

49.In any event, as Mr Blanchflower pointed out, the applicant would have known that likely sources of information being considered by the Commissioner were the statements of those other officers who had been interviewed. In this regard, the following exchange appears in one of the applicant's interviews :

"Q : We have interrogated those who were present that night. According to them, three other persons were present.

A : Not true at all. From beginning till end, there were six persons. Up to the moment I left, there were six persons."

THE APPLICANT'S SECOND GROUND : RELIANCE ON MATERIALS LACKING PROBATIVE VALUE

50.I can find no substance in this ground. In my view, all the matters argued under this heading by Mr Harris were essentially 'jury' matters; in short, matters to be left to the decision-maker to weigh and consider and decide. I fail to see how the Commissioner can be faulted in any way for following that exact course.

51.Yes, there were inconsistencies between various witnesses. Experience of criminal trials makes it manifest that inconsistencies are to be expected in almost all matters. Mr Harris, for example, spoke of inconsistencies in the various versions of the order in which persons entered the private dining room. But inconsistencies of that nature were for the Commissioner to resolve - if he thought it necessary to do so - and I cannot see how such inconsistencies can support the contention that the evidential material available to the Commissioner was of no probative value. I can only say that in my view much of the evidence was highly probative.

52.It is true that the other officers under investigation did not immediately, in the course of their interviews, come to their final version of events. To that extent it is correct to say that their statements contained inconsistencies. But inconsistencies, of themselves, do not operate to strip evidence of all probative value. It depends on the nature of the inconsistencies and their extent; in short, it is essential to consider all the circumstances. In the present case, the Commissioner was able to look to what, in the final analysis, was the version of events put forward by each of the other officers under investigation and to see to what extent those versions did or did not tally with each other. He was entitled to consider the surveillance report and to see to what extent that report did or did not tally with the versions put forward by the other officers under investigations. In summary, he was entitled to look at matters in the round. It was for him, as the finder of fact, to decide what evidence he accepted or what evidence he rejected.

53.As was said by Lord Diplock in Mahon v. Air New Zealand Ltd (supra), in describing the duty imposed upon a finder of fact :

".... The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. ....

.... What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory."

54.I am satisfied that the material considered by the Commissioner (and the ACOC which advised him) was, despite the existence of inconsistencies, quite manifestly of probative value. Whether this court would have come to the same finding is not to the point. It was for the Commissioner to decide the merits of the matter. The legislature has given that power to him and it is not for this court to attempt to assume such power; it does not act as a court of appeal.

THE APPLICANT'S THIRD GROUND : THE FAILURE TO MAKE ADEQUATE ENQUIRIES

55.In the course of his submissions, Mr Harris accepted that it was not, in the circumstances of this case, incumbent upon the Commissioner to seek to obtain statements from all the identified persons who were alleged to be at the dinner. Mr Harris conceded, for example, that no obligation rested on the Commissioner to seek a statement from Alex Tsui. Having regard to the enmity between Mr Tsui and the Commissioner, Mr Harris accepted that any such statement would no doubt, in the view of the Commissioner, be of very dubious value. But Mr Harris contended that procedural fairness dictated that the Commissioner at least seek the statements of other persons alleged to have been present; for example, the former ICAC officer Raymond Chiu, a gentleman who had also suffered termination of his contract. The need arose in this case, said Mr Harris, because the Commissioner was aware of the fact that the applicant disputed that nine persons had attended the dinner, insisting that only six had attended. As a result, it was incumbent upon the Commissioner to seek a broad spectrum of evidence.

56.As a matter of general principle, I am satisfied that in administrative enquiries, absent any statutory or regulatory dictate to the contrary, it is for the decision-maker to decide how best to go about the decision-making process. It is therefore for the decision-maker to assess what information is required and how best to obtain that information. Provided sufficient relevant information is obtained to enable a rational decision to be made then I do not see how a decision-maker can be said to be in breach of the rules of procedural fairness. Clearly, he cannot knowingly avoid relevant information because it does not suit his purpose; that would be to prejudge the matter or to show bias. But no obligation rests on a decision-maker to exhaust all enquiries simply because he knows or anticipates that some issues of fact may be in contention. That would place far too onerous a burden on decision-makers. Equally, nothing is served by a sterile rule that directs a decision-maker to pursue information which he knows will be of no assistance to him; for example, because he will be unable to place any faith in the source of that information.

57.Mr Blanchflower submitted that if a duty of the kind described in the applicant's original grounds of review were imposed, then a decision could be successfully reviewed on the basis that the decision-maker did not carry out enquiries that were open to him or did not take steps to test the information he had already obtained with further and deeper enquiries. On the same basis, before a decision was made, application could be made for an order of mandamus to require the decision-maker to carry out desired enquiries. As Mr Blanchflower expressed it, such applications would necessarily ask the court to intervene in order examine and oversee the information gathering process. That, he submitted, would constitute an unjustified and improper usurpation of the decision-maker's function. I agree fully.

58.In my view, the general principle can be expressed in the following manner : it is for a decision-maker to decide how he will set about the decision-making process; if he has any obligation at all to seek information, it is only to the extent necessary to enable him, in the circumstances, to make a rational decision; namely, a decision which is not self-contradictory or based on an evident logical fallacy or in some other way perverse.

59.What must be remembered is that, when a person at risk in an administrative enquiry is given information of the allegations against him so that he can make representations, it is open to him to make enquiries for his own benefit and to include the result of those enquiries into his representations.

60.In the present case, the Commissioner had before him a report from his own surveillance experts and he had the statements of two of his officers who, in the course of interviews, had come around to the position where their tally of the numbers agreed with that of the surveillance experts. In short, he had before him evidence supporting the surveillance report.

61.In the circumstances, I fail to see how it can be argued that the Commissioner had any obligation to pursue enquiries by seeking statements from others at the dinner, a number of whom in any event may well have had reason to be less than co-operative with the Commissioner's officers. If the applicant considered their evidence important, it was open to him to obtain it. Administrative enquiries of this kind are after all 'two way streets'.

62.For the sake of completeness, I should add that I am satisfied that the Commissioner's reliance on the information he had to hand rather than information that may have been obtained from further enquiries did not in any way lead him to make a decision which was perverse, irrational or a decision which no reasonable decision-maker could make. I am satisfied that there was more than merely some material on which the Commissioner could rely, there was ample material. How he viewed that material, having consulted with the ACOC, was a matter for him.

CONCLUSION

63.For the reasons given in the body of this judgment, I am satisfied that the application for judicial review must be refused. Costs are to follow the event and are awarded to the respondent; that is , the Commissioner.

Representation:

Mr Graham Harris, instructed by Messrs Y.S. Lau & Partners, for the Applicant

Mr M.C. Blanchflower, DPGC of Department of Justice, for the Respondent