Yu Yau Tak v. Commissioner of Police and Another

HCAL000043/2000

HCAL 43/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 43 OF 2000

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Coram: Hon Hartmann J in Court

Date of Hearing: 8 June 2000

Date of Handing Down Judgment: 30 June 2000

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J U D G M E N T

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1. At all times material to these proceedings the Applicant held the rank of a senior inspector in the Hong Kong Police. In April 1996, he was charged with various disciplinary offences. He appeared before an 'appropriate tribunal' convened in terms of section 16(1) of the Police (Discipline) Regulations ('the tribunal') and was found guilty by the tribunal of a number of offences, the most serious being a contravention of police general order 6-01(2) which (in part) reads:

'Other than in the course of duty, a police officer shall not associate with known criminals or triad personalities.'

2. In respect of this offence - which related to his alleged association with 6 'known criminals or triad personalities' - the Commissioner of Police ('the Commissioner') recommended to the then Governor that the Applicant be compulsorily retired from the force. That recommendation was accepted.

3. Having exhausted his internal avenues of appeal, the Applicant sought his remedy by way of judicial review. Those proceedings came before Findlay J in October 1997. On the basis that the tribunal had made a material error of law, the judge quashed its finding in respect of police general order 6-01(2) and remitted the matter for reconsideration.

4. Proceedings then resumed before the tribunal which, in October 1998, found the Applicant guilty; this time, however, in respect of one associate only, a man named Cheng Wui-ming who was found to be a 'triad personality'. In respect of punishment, the Commissioner again recommended that the Applicant be compulsorily retired from the force, a recommendation that was accepted by the Chief Executive who, on 30 December 1999, made the necessary order in that regard.

5. Having for a second time exhausted his internal avenues of appeal, the Applicant has come back before this Court seeking to quash the new finding of the tribunal together with the various orders of the Commissioner and the Chief Executive made consequent upon that finding.

The grounds upon which it is sought to quash the tribunal's finding

6. It is the Applicant's contention that there was no evidence before the tribunal capable of supporting its finding that he had associated with a known triad personality; alternatively, when viewed as a whole, what evidence there was before the tribunal was not reasonably capable of supporting such a finding.

7. The applicable principle has been set out in the Privy Council decision of Mahon v. Air New Zealand [1984] A.C. 808 per Lord Diplock at page 820:

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

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 legal framework within which the tribunal made its finding

8. The Police Force is a disciplined service. Section 30 of the Police Force Ordinance, chapter 232 ('the Ordinance'), directs that:

"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."

9. The 'police regulations' to which reference is made in section 30 are regulations made by the Chief Executive under section 45 of the Ordinance. Section 45(1)(d) specifically empowers the Chief Executive to make regulations that provide for discipline and punishment.

10. The 'orders' to which reference is made in section 30 are the police general orders to which reference has already been made. The Commissioner, who is charged with the supreme direction and administration of the Police Force, is empowered in terms of section 46 of the Ordinance to make such orders. That section reads:

"(1) Subject to subsection (2), the Commissioner may from time to time make such orders as he thinks expedient to enable him to administer the police force, render the police force efficient in the discharge of its duties and for carrying out the objects and provisions of this Ordinance, and in addition, such orders may provide for any of the matters specified in section 45.

(2) Any orders made under this section shall be called "police general orders" （警察通例） and shall not be inconsistent with this Ordinance or any regulations under section 45."

11. Section 3(1) of the Police (Discipline) Regulations, made pursuant to section 45 of the Ordinance, directs that inspectors (or senior inspectors) who are found guilty by an appropriate tribunal of disciplinary offences may be punished, the offences meriting punishment being listed in section 3(2) of the Regulations. These offences include - under section 3(2)(e) - a 'contravention of police regulations, or any police orders, whether written or verbal'. It is not disputed that such orders include police general orders.

12. Police general orders cover a wide range of matters including matters of conduct and discipline which are contained in chapter 6. In this chapter, under the heading of 'conduct' the following 3 orders appear:

"(1) A police officer shall maintain a standard of physical fitness commensurate with his duties as a police officer and shall take all reasonable steps that may be required of him by the Commissioner to maintain such a standard of fitness. To this end, a police officer is required to be temperate in his habits.

(2) Other than in the course of duty, a police officer shall not associate with known criminals or triad personalities. Officers are also advised that they should not associate with persons of doubtful or undesirable reputation.

(3) A police officer shall not directly or indirectly solicit or receive any gratuity, present, subscription or testimonial without the consent of the Commissioner."

13. It is, of course, the second of the orders which is the focus of these judicial review proceedings. I have set out all three, however, to demonstrate the broad style in which the orders are drafted. They do not constitute statutory legislation and are not so intended. At the other end of the spectrum, they are, in the main, much more than mere guidelines or institutionalised advice: they are orders which must be obeyed under fear of penalty. In my judgment, they constitute directions given to police officers to ensure that, in matters of general behaviour, they conduct themselves in a manner which befits their training and professionalism and which ensures that they do not abuse their public trust. In the eye of the public, the integrity of the force at large is reflected in the integrity of each officer. Police general orders are intended to maintain that integrity. To that end, I am satisfied that they are deserving of benevolent construction, due regard being had to their purpose and to the mischief they seek to avoid.

The factual background

14. The Applicant joined the police in 1974 as a constable. In 1978 he was appointed an inspector and 6 years later was promoted to senior inspector.

15. From 1992 onwards, the Applicant began to travel frequently to the Mainland. This was often in the company of friends and other persons to whom he was introduced by his friends. They would eat together, go drinking and visit nightclubs.

16. Unknown to the Applicant, a police undercover officer was associating with many of the same people to investigate whether they were involved in criminal activities. The undercover officer appears to have obtained evidence that a number of these people were either triad society members or criminals. He witnessed the Applicant in their company on trips to the Mainland and reported this fact to his superiors.

17. In January 1995, the Applicant was interviewed and in the course of that interview came to talk about his old friend, Cheng Wui Ming, whom he knew by the nickname of Cha Bo. In particular, he said:

"Sometime in 1994, it may be the dates you are referring to, I went to China with two friends. One was CHENG Wui-ming, alias Cha Bo, and the other was a serving PC, called Ah Sing, who I know no other details about. Cha Bo and I had been squad mates at PTS when I joined as a constable in 1974. He later left the Force. Our PC squad would have regular Dai Sik Wui and I would meet Cha Bo with them. We both lived in the NT, so outside the Dai Sik Wui, we would keep in touch and very occasionally we would go out together. On this occasion, Cha Bo dated me to go to China and he brought along Ah Sing. So at that day we left the Lo Wui Checkpoint in the late morning and on reaching Shenzen, he led us to a restaurant for lunch. In the restaurant he came across a man called Ah Luen. I do not know if Cha Bo dated him to meet us there or if it was by accident. I do not know anything about Ah Luen, except that he is a staff of the First Pacific Bank. There were others sitting with Ah Luen, both males and females and we joined them. Cha Bo suggested we all went to Shek Wan together."

18. The Applicant was asked if he knew that the people he was socialising with in the Mainland were involved in crime or were triad members. In particular, he was asked about Cha Bo. In this regard, the record of interview reads:

"Q. Do you know if any of the people you were with were or are engaged in illegal activities or are triad members?

A. I do not know and I have not even thought about it as Ah Luen introduced to me as a bank staff and I took it that they were all his friends.

Q. How about Cha Bo?

A. I do not know if he is involved in anything although I have heard on one occasion that he was a member of the Fuk Yee Hing. I associate with him mainly due to our past relationship as squad mates." [my emphasis]

19. In a further interview conducted that same day, the Applicant was asked about his association with Cha Bo:

"Q. Despite the fact that you heard CHA BO might be a Fuk Yee Hing triad member, why did you continue to associate with him knowing it was in breach of PGO?

A. I only heard he was Fuk Yee Hing, there was nothing to prove that. I knew him on a friend basis for 20 years and I treated him as a friend, that is all. Anyway, I only saw him once a year at a Dai Sik Wui and on the occasion we went back to China. I do not really look at that as associating." [my emphasis]

A consideration of the offence charged

20. In order to determine whether there was any evidence before the tribunal reasonably capable of supporting its finding, it is necessary first to determine the elements of the offence contained in police general order 6-01(2). For convenience, the order is cited again:

"Other than in the course of duty, a police officer shall not associate with known criminals or triad personalities. Officers are also advised that they should not associate with persons of doubtful or undesirable reputation."

21. When this order was first considered by the tribunal, it found that 'known' meant 'generally known', not necessarily known to the Applicant. On this basis, an officer could associate with a person who he did not know was a triad but who, unknown to him, had the reputation among other officers of being a member, and, despite his personal ignorance, be found guilty. When the matter came before Findlay J, he found that 'known' had to mean known to the officer. In this regard, he agreed with the reasoning in the earlier authority of Cheng Wai Kit v. Commissioner of Police (1996) MP 3208 in which Sears J, in considering the same order, said:

"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."

22. In my judgment, the requirement for personal knowledge must be right. The offence can only be committed when an officer knowingly associates with a triad personality.

23. But, in ordinary, parlance, the word 'known' - as it appears in the order - may connote some form of reputation. Is the order, therefore, to be read on the basis that; an officer shall not knowingly associate with a person who is known by reputation to be a triad personality? In my opinion, that cannot be so. If that was the case, it would mean that an officer could associate with a person who he knew to be a triad but who did not (at that time) have a wider reputation as a triad and thereby escape conviction under the order. What therefore is required is knowledge on the part of the officer under investigation; there can be no additional requirement to prove that the triad personality had a reputation among other police officers as a triad member.

24. But that begs the question: what is meant by 'knowledge'? Must it be proved that the officer under investigation had certain knowledge or does it encompass a reasonable belief? Mr Dykes, who appeared for the Respondent, argued that 'known' cannot include the weaker meaning of 'reasonably believed or suspected'. But I do not think I am distorting the plain meaning of the words when I say that knowledge here must encompass reasonable belief. Triads do not register their membership. Even a criminal conviction for the commission of a triad offence is not proof that the person remains a triad. If some form of admission is made, it is rarely made in the public arena so that it may be witnessed and become the subject of third party testimony. All of these things will be well known to the police officers who are the subject of order 6-01(2). In the circumstances, I am satisfied that officers, who must tailor their conduct according to the constraints of the police general orders, will know and understand full well that they will be guilty of a disciplinary offence if they associate with a person who they have reasonable grounds to believe is a triad personality. That, without distorting the plain language of the order, but employing a benevolent interpretation that looks to the mischief to be avoided, must be the true meaning and intent of the order.

25. I am fortified in this opinion by the dicta of Sears J in Cheng Wai Kit (supra) when he said:

"In my judgment, had there been some other evidence to 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."

26. The examples of evidence cited in that judgment cannot, even by inference, amount to certain knowledge but may well constitute reasonable belief.

27. Finally, I confess that I also find merit in the contention of Mr Westbrook, who appeared for the Respondent, who argued that if a police officer could circumvent the order by saying 'Well, I've heard he is triad, but I have no clear proof of it so I shall ignore it' and then continue to associate with such people, the order would be robbed of effect.

The findings of the tribunal

28. The tribunal had before it the evidence of the police undercover officer which was accepted as credible and accurate. That undercover officer had been with the Applicant and Cheng Wui Ming, nicknamed Cha Bo, when they had made trips to the Mainland. Other men accompanied the two. The tribunal found that on those occasions the Applicant "stayed in the same hotel, went out for meals, visited karaokes, picked up escort girls, and played chor dai dee" with his companions. It was, therefore, satisfied that the Applicant had associated with those companions, including Cheng Wui Ming. No issue is taken with that finding.

29. As to the essential element of knowledge, in its reasons for judgment, the tribunal said:

"In his statement, the defaulter [the Applicant] stated that he knew CHENG Wui-ming was a member of the Fuk Yee Hing triad society. The defaulter associated with him (including the trip to China between 26-2-94 and 28-2-94) because it was mainly due to the fact that they were squadmates in PTS in 1974 as constables."

30. The tribunal continued:

"The defaulter is a very experienced crime formation officer. Having worked in various crime formations and in particular Regional Crime Units, he would be in a much better position than most of his colleagues to differentiate and recognize known triad personalities or known criminal.

...

The prosecution has established beyond all reasonable doubt the association of the defaulter other than in the course of duty with CHENG Wui-ming who was known to the defaulter [to be] a triad personality."

The Applicant's criticisms of the findings

31. In its judgment, the tribunal said that the Applicant 'knew' Cheung Wui Ming was a triad member. That statement was criticised on the basis that the Applicant had said no such thing. What he had said was: "I do not know if he was involved in anything although I have heard on one occasion that he was a member of the Fuk Yee Hing". Later, he was asked why he had continued to associate with Cheng despite the fact that he had heard that he might be a triad member and he replied: "I only heard that he was Fuk Yee Hing, there was nothing to prove that".

32. It is true that the Applicant never used the word 'knew'. But the tribunal was here giving its reasons for conviction in light of the judgments of both Findlay J and Sears J, the latter judgment implying that reasonable belief would amount to knowledge. It is plain on the face of the statements made by the Applicant that he denied what Mr Dykes has called 'actual knowledge'. He said that he had only 'heard' that Cheng was a triad, and that there was nothing to 'prove' it. The tribunal could not have been unaware of this. In its judgment, therefore, the tribunal could only have equated 'knowing' with 'reasonably believing'. That I consider to be correct in law.

33. Was there then some material before the tribunal which tended logically to show the existence of facts consistent with its findings? I believe there was. The Applicant was a police officer of some seniority. As the tribunal expressed it: he was an experienced crime formation officer who had worked in a number of Regional Crime Units. He admitted that he had heard that Cheng was a triad. That information was specific enough to identify the name of the triad society. Yet, on the face of it, because the Applicant had only, 'heard that he was Fuk Yee Hing' and because there was nothing to 'prove' it, he had continued to associate with him, including crossing to the Mainland to frequent nightclubs and the like. To return to what Mr Westbrook said, if an officer is able to say, 'well I have heard this man is triad - I have been told he is - but I have no firm proof so I shall ignore it' he runs a real risk that his conduct will be judged to have fallen short of that expected of a professional police officer.

34. It has been contended that the Applicant admitted to hearing only once that Cheng was a triad and that, without amplification, that could not constitute evidence reasonably capable of supporting the tribunal's findings. I disagree. It was for the tribunal to weigh the evidence then before it and to assess (according to the high burden of proof it had set itself) whether the Applicant, as an experienced officer - well aware of the dangers of mixing with reported triads - would have formed a reasonable belief that Cheng was a triad member when he was informed of that fact and given also the name of the society. Some information - if sufficiently serious in its ramifications - need only be received once.

35. The evidence before the tribunal was enclosed within short compass. With hindsight, it may have been prudent if the Applicant had been questioned further as to the extent of what he had heard concerning Cheng and whether be had checked it out or not. Applying the principles set out in Mahon v. Air New Zealand (supra), I do not see how the decision of the tribunal can be impeached. Whether this Court would have reached the same decision is not the issue. This Court does not try the facts.

Conclusion

36. In the circumstances, as I have said, I am satisfied that the grounds argued before me are not sufficient to impeach the decision of the tribunal. The application to quash the tribunal's decision and the decisions consequent upon it is dismissed. There, will be a costs order nisi that the Applicant shall pay the Respondent's costs, such costs to be taxed if not agreed.

Representation:

Mr Philip Dykes SC, instructed by Messrs Chong, Leung & Co., for the Applicant

Mr Simon Westbrook, instructed by Secretary for Justice, for the Respondents

Remarks:
On appeal by the Applicant to the Court of Appeal: Appeal dismissed with costs. Please refer to CACV000325/2000.