Lee Sze Chung v. Commissioner of Police
Read the full judgment text of HCAL 195/2002 on BabelCite. This High Court CFI judgment was delivered on 4 March 2003.
1. In this judicial review the applicant seeks five orders of certiorari. The applicant is a police officer who, on 25 September 2001 was found guilty, by the Police Disciplinary Tribunal, of making a false statement in a material particular contrary to regulation 3(2)(j) of the Police (Discipline) Regulations. On the same day, the same Tribunal made an award of "reprimand" on the charge. On 9 October 2001, a senior police officer increased the award to "compulsory retirement with deferred benef
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HCAL000195/2002 HCAL195/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST ---------------------
---------------------- Coram: Hon Burrell J in Court Dates of Hearing: 24 and 25 February 2003 Date of Judgment: 4 March 2003 ------------------------- J U D G M E N T ------------------------- 1.In this judicial review the applicant seeks five orders of certiorari. The applicant is a police officer who, on 25 September 2001 was found guilty, by the Police Disciplinary Tribunal, of making a false statement in a material particular contrary to regulation 3(2)(j) of the Police (Discipline) Regulations. On the same day, the same Tribunal made an award of "reprimand" on the charge. On 9 October 2001, a senior police officer increased the award to "compulsory retirement with deferred benefits". On 2 January 2002, the award was confirmed by the Force Discipline Officer and on 20 August 2002, the applicant's appeal was dismissed by the Commissioner of Police. The applicant now seeks orders quashing all the above decisions. Background 2.The background to these proceedings is important. It stems from an incident on 3 November 1999 when the applicant was driving his own motor vehicle. In his car were his brother, a man named "Chui" and a fourth man who was an illegal immigrant. The vehicle was intercepted by the police and stolen goods were found on the three passengers and in the boot of the vehicle. All four were prosecuted on charges including possession of offensive weapons and handling stolen goods, in the Magistrates Court. They were all convicted. They all appealed. The applicant's appeal was successful but the appeals of the other three were dismissed. The appeal was heard in December 2000. Thus from November 1999 and December 2000 the applicant, who from the date of the incident remained a police officer but under interdiction, was fully aware of the criminal proceedings involving himself and, inter alia, the man named Chui. 3.It was his knowledge of Chui which formed part of the disciplinary proceedings which were commenced in March 2001, about three months after his successful appeal. In the course of the disciplinary proceedings (which I set out in more detail hereafter) the applicant said in his first interview, in effect, that the occasion when Chui was in his car in November 1999 was the first time he had met him for over 10 years and that he did not know that Chui had a number of criminal convictions and was an undesirable element. 4.In his second and third interviews, he said that he had made a mistake in that, in fact, he and Chui had been on the same hydrofoil to Macau 11 days before the incident on 23 November and also had been on the same return hydrofoil to Hong Kong the next day. He explained that this was a coincidence, that he had not stayed with Chui in Macau and that his failure to mention it in his first statement was a "genuine mistake". The Tribunal did not accept his version and found that he had deliberately lied, and convicted him accordingly. 5.Immigration records revealed that the applicant and Chui had left Hong Kong at the same minute and had gone through the same terminal. Their entry into Macau is also recorded at the same minute and they had consecutively numbered immigration "slips". The same was true of their return to Hong Kong the next day i.e. the same departure time, the same arrival time, the same terminals and consecutive "slip" numbers. The proceedings 6.The applicant, in the course of the disciplinary investigation into the circumstances of his arrest, trial, conviction and appeal, was interviewed three times, on 17 March, 28 March and 3 April 2001. As a result he was charged as follows :
7.The relevant extracts from his three interviews in so far as they relate to these proceedings are as follows :
8.In answer to the charge, the applicant made written submissions which included the following :
9.At the hearing of the charge on 27 August 2001, the applicant elected not to give evidence and submitted his written submissions (supra) for consideration. The sole witness against him, Detective Sergeant 13706 Cheung gave evidence about the three interviews. He made the following observations. In relation to the first interview :
In relation to the second interview :
10.The decision was delivered on 25 September 2001. It is a reasoned judgment. This judicial review proceeding is not an appeal against the Tribunal's findings, I therefore only set out that part of it which is relevant to a point taken on judicial review, namely, the standard of proof. The officer said :
The applicant was convicted and an award of "reprimand" was made. 11.On 8 October 2001, the applicant was notified that he was to attend before a Senior Police Officer on 9 October at 10:30 a.m. He duly attended. The Senior Police Officer firstly confirmed the Tribunal's findings and secondly went on to say :
12.The applicant made a statement in which he basically repeated his defence to the charge and his mitigation. The respondent makes the point that it is a comprehensive and fluent statement. 13.At noon, the Senior Police Officer, made the following decision :
14.The sole point taken by the applicant in relation to this part of the proceedings is that he was given no, or no adequate time to prepare his case when confronted with a possible decision to increase the award which had been made against him 15 days earlier. 15.This award was later confirmed by the Force Disciplinary Officer and, later again, the applicant's appeal was dismissed by the Deputy Commissioner of Police. The applicant's grounds for judicial review 16.The disciplinary Tribunal's finding of guilt is challenged on four grounds.
At the relevant time, namely the time of the interviews, the applicant was under an interdiction. The interdiction had been imposed pursuant to section 17(1) of the Police Force Ordinance ("the Ordinance"), Cap.232 which states :
17.The applicant's submission is twofold. Firstly, that when under an interdiction a police officer is incapable of performing any duties and therefore could not commit an offence in the course of them. Or, in other words, once interdicted he has no duty to perform. Secondly, that assisting in the course of a disciplinary investigation is not a "duty" as contemplated by Regulation 3(2)(j). Regulation 3(2)(j), it is submitted, is confined to the day-to-day tasks carried out by a police officer in the execution of his duty. 18.In my judgment, this ground must fail. 19.Section 17 of the Ordinance takes away a police officer's powers. He cannot exercise a police officer's powers and is prohibited from performing a police officer's functions. The word "duty" does not appear in section 17. Whilst under interdiction the applicant is still a member of the police force and remains on the pay-roll. Without question, one of the duties he is still obliged carry out is to assist in internal investigations concerning disciplinary matters. 20.Mr Kwok Sui Hay, for the applicant, submitted that the duties of a police officer are confined to those matters found in section 10 of the Police Ordinance. In fact that section lists in sub-sections (a) - (r) the duties of the police force, not a police officer. Even if section 10 was the definitive list of a police officer's duties sub-section (r) states :
In Fu Kin Chi Willy v. Secretary for Justice [1998] 1 HKC 411, Li CJ stated at p.422 that the duty of a police officer included assisting in disciplinary investigations. It follows that it would be unlawful to fail to do so. He said :
21.In any event the duties of a police officer and the duties of the police force are not the same thing and the former is wider than the latter. The former plainly includes assisting in a disciplinary investigation in the capacity of a police officer whether under interdiction or not.
22.This ground is based on the argument that the false statement, namely that the applicant had not met Chui for 10 years prior to 23 November 1999, was not material or relevant to the question he had been asked, namely, "do you know that Chui has a number of criminal convictions and is also an undesirable element?". Thus it is submitted that the answer is immaterial to the question, therefore the offence has not been made out, therefore certiorari should be granted. 23.This ground can be dealt with quite shortly. Put simply, the materiality of the falsehood must relate to the investigation generally and is not restricted to the particular question asked. The investigation concerned, inter alia, the applicant's possible association with known criminals. His answer is plainly material and relevant. As Mr N. Cooney, for the respondent, pointed out an interviewee might be asked his name and in answer state his name and then give a long prepared statement about the incident under investigation. On Mr Kwok's submission all of his answer, save his name, would be immaterial.
24.By reference to the extracts in the Tribunal's decision on 25 September 2001 (cited supra at p.7/8) Mr Kwok submits that (a) the criminal standard of proof should have been applied and (b) it was not applied. 25.The standard of proof in Tribunals generally, is a subject which has attracted much legal argument and judicial statements in many cases dealing with a variety of different types of tribunals. 26.Both counsel in this judicial review have referred me to many authorities on the subject. In some of those authorities the particular court has taken the opportunity to review many previous cases and set out such principles as are relevant to the particular case or Tribunal that they are dealing with. Having gleaned as much assistance as I can from the cases cited, the correct approach in this case is, in my judgment, as follows :
I thus find that the complaint that too low a standard of proof was adopted has not been made out.
27.This ground is not contained in the applicant's Form 86A written grounds for judicial review. Mr Kwok nonetheless relies on it and he has enlarged on it in his written skeleton argument and submissions. I will therefore deal with it. 28.The submission is that the expression, in Chinese, used by the applicant could have meant that the last time he had formally met, or had had an arranged meeting with Chui, was 10 years prior to 23 November 1999. It follows that coincidental or chance meetings with Chui could have occurred since then and had they not been mentioned the applicant would not, because of the ambiguous nature of the Chinese expression, have been lying. The complaint is that this issue was not considered by the Tribunal officer. 29.I find there to be no substance in this complaint. The applicant's defence was consistent throughout. He maintained all along that his failure to mention the Macau trip was a mistake. He did not advance the defence that "I did not mention it because I thought you were talking about pre-organized meetings and the Macau trip was a chance encounter." The issue for the Tribunal was clear, namely, was the failure to mention the Macau trip a genuine mistake because he had forgotten about it at the time of the interview or was it a deliberate lie. The Tribunal officer found it to be the latter. There was no sub-issue about the meaning of his answer then, or at any stage thereafter up to and including the filing of the Form 86A in these proceedings. The Tribunal officer dealt with that single issue in his reasoned judgment as follows :
30.I reject the complaint that the Tribunal officer's understanding of the issue was misconceived. 31.This concludes the grounds on which the applicant challenges the finding of guilt against him. The final ground, to which I now turn, concerns, the increase in the award from "reprimand" to "compulsory retirement with deferred benefits".
32.A senior police officer has power to increase an award. On 8 October 2001 the applicant was summoned to appear before the Senior Police Officer on the next day, 9 October 2001. There is no clear evidence one way or the other as to whether the applicant knew or realized the purpose of the hearing before he walked into the hearing on 9 October 2001. In a later written submission he states that he was taken by surprise when the Senior Police Officer told him that consideration was being given to increasing the award to "compulsory retirement with deferred benefits" and he was further asked, there and then, to show cause why such an increase should not be made. The respondent's case is that he must have realized this was a possible reason for the hearing but that, in any event, he had a reasonable time in which he was able to "show cause" as requested. 33.Procedural fairness does not require a particular period of time to elapse between notification of a hearing and the hearing itself to allow for preparation, regardless in every instance. For example, if a person indicates that he is ready to deal with a matter there and then, he could not later complain that he was not given more time to prepare. What is required is reasonable notice and a reasonable opportunity to present his case adequately. 34.In the absence of any cogent evidence to the contrary I must consider this issue on the premise that the applicant did not know the purpose of the hearing on 9 October 2001 when he attended it. Based therefore on the fact that the applicant was requested to show cause why the award should not be increased at the same time as being told that the purpose of the hearing was to consider a possible increase and given the seriousness of the consequences of an increase to the applicant, I am persuaded that procedural fairness was not applied by the respondent in this regard. Had there been evidence that the purpose of the hearing had been communicated to him at the time of the notification, namely 8 October, the situation would be different. However, on the basis that it was not, the words of Lord Fraser in In re Hamilton : In re Forest [1981] AC at page 1045 apply :
The same sentiment had be voiced by Lord Widgery in the earlier discussion of R.v. Thames Magistrates' Court Ex parte Polemis [1974] 1 WLR at page 1375 :
35.I do not accept the respondent's argument that the reasonableness or adequacy of the opportunity afforded to the applicant to prepare his case may be tested by what he said in response on that occasion and on later occasions. The argument being that if he said all he could have said on that occasion and on future occasions, then there must have been no prejudice to him and the time afforded to him must have been reasonable. In my judgment such factors are not a test of the reasonableness of the time given to the applicant. However, they are most relevant to the court's consideration as to whether it should exercise its discretion not to quash the decision following a breach of the rules of natural justice. 36.For the reasons which follow this is a clear case in which the discretion should be exercised because an analysis of events following the breach show it to be a breach of no consequence or disadvantage to the applicant. In short, there was no prejudice to the applicant and had more time been given to him the outcome would have been the same. 37.The matters which lead to this conclusion are briefly these. Firstly, the applicant did not ask for more time when asked to show cause. This, however, is not a major factor in the respondent's favour because the atmosphere of such a hearing (at which the applicant is described as "marching" in and out) would be very different from a court hearing and perhaps not conducive to an applicant making an application for an adjournment. The fact remains however that he chose to make his representations immediately upon being requested to do so. 38.Secondly, his response at the time was lengthy, fluent and comprehensive. It reads as if it were a prepared statement. He, in effect, repeats his defence and mitigation. He is allowed to say everything he wishes to say. He is not interrupted. 39.Thirdly, following the decision he has three further opportunities to make representations. On each of these occasions he could have produced new material, new arguments or elaborated on what had been said before. Also, he could have complained that his original submission had been rushed as he had not been given an opportunity to prepare. Those three occasions were as follows :
40.In all these circumstances I am satisfied that this is a proper case to exercise my discretion not to quash the decision. 41.Finally, at paragraph 35(b) of Form 86A it is contended that the decision to increase the award was Wednesbury unreasonable. I do not agree. In my judgment it falls far short of Wednesbury unreasonableness to make a decision to compulsorily retire a police officer who has deliberately lied about associating with the man named Chui, bearing in mind the background to the investigation and the proceedings under review which, as I said at the outset of this decision, were important. 42.For all the above reasons the application must be dismissed. I make an order nisi that the costs of the respondent be paid by the applicant.
Representation: Mr Kwok Sui Hay, instructed by Messrs Kevin L.H. Kwong & Co., for the Applicant Mr Nicholas Cooney, instructed by the Department of Justice, for the Respondent Remarks: Appeal by the Applicant to the Court of Appeal. Appeal dismissed. Please refer to the appeal judgment of CACV000086/2003. |
Cases cited in this judgment