Re Sum Tat Man

HCMP003346/1990

HEADNOTE

Judicial review - observations on the need for care in preparing the application for leave.

1990 No. MP 3346

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Barnett J. in Court

Date of Hearing: 11 - 14 June 1991

Date of Delivery of Judgment: 2 July 1991

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JUDGMENT

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1. This is an application for judicial review of police disciplinary proceedings. The applicant was a sergeant in the Royal Hong Kong Police. On 7th June 1990 he was found guilty of two disciplinary charges:

2. The finding of the Adjudicating Officer (A.O.) having been confirmed, the applicant was on 15th June 1990 reduced to the rank of police constable and dismissed on both charges. That award was confirmed on 3rd July 1990. An appeal against the findings, awards and their confirmations was dismissed by the Commissioner of Police on 28th August 1990. The applicant now seeks judicial review of these various decisions. He asks that they be quashed, or for a declaration that they are null and void and of no effect. The grounds for his application are:

3. The applicant is the cousin of Madam NG Lai-fong (PW2) while SHUM Chow-yuen (PW4) is his uncle. They were not particularly close. On 5th January 1988 PW2's husband died in a traffic accident. Even before PW2 learned the tragic news, the applicant had been to the Social Welfare Department with a view to obtaining financial assistance for PW2.

4. At PW4's request the applicant helped PW2 with funeral and other arrangements. On 7th January an officer from the Social Welfare Department called to see PW2. During the course of the interview, PW2 showed this officer a bank passbook containing some $10. She did not show him another passbook containing substantially more money. According to PW2 this was on the advice of the applicant, so that the Social Welfare Department would think her to be within the financial limits for assistance.

5. At the same time to the knowledge of the applicant, the PW2's unhappy circumstances were reported in the local press. As a result, public donations amounting to over $200,000 were collected for PW2. According to PW2, the applicant said that this money should be transferred either to PW4 or himself, so that the Social Welfare Department would not appreciate PW2's true financial circumstances. Accordingly, on 5th February 1988 the three of them went to the branch of the Hong Kong & Shanghai Bank where PW2 had her account. There, according to PW2, the applicant arranged for $40,000 to be transferred to an account of PW4 while he received $50,000 in cash. A sum of $500,000 was on the same day paid in to an account of the applicant in a nearby branch of the Chartered Bank. There can be no doubt that it was the same sum.

6. In September 1988, PW2 complained to ICAC that the applicant had stolen sums of money from her totalling $53,000 being $3,000 on or about 27th January and $50,000 on or about 5th February. ICAC commenced an investigation, taking a number of statements from both PW2 and PW4. In April 1989, the applicant was arrested and charged with two offences of theft from PW2 (there was an alternative charge in respect of which the Crown later offered no evidence. It plays no part in these proceedings). On 8th September 1989, the applicant was acquitted by Mr. D.I. Thomas, a magistrate, after a four day trial, the magistrate finding no case to answer. The magistrate's notes of the proceedings before him disclosed these brief reasons:

7. The Police Internal Investigation Office, in accordance with usual procedures, then commenced its own investigation. The applicant was interviewed by Chief Inspector Chan Wan-sing at some length. He was asked over 50 questions, including the following :

8. I will refer to "Q.20" and "A.20" in due course.

9. The investigation culminated in the two charges which I have already set out, and the finding and award which is now challenged. The finding by the A.O. that the two charges were proved bayond doubt are now impugned as being Wednesbury unreasonable, perverse and unfair. Although unfairness did not appear in the grounds for relief relied upon, Mr. Darwyne, who appeared for the applicant, said that the procedure of judicial review is flexible enough to allow the court to consider such ground when Wednesbury reasonableness is relied upon. He referred to Wheeler & others v Leicester City Council (1985) 1 A.C. 1054 a decision of the House of Lords in relation to an application for judicial review that relied upon Wednesbury. In his speech at page 1079 Lord Roskill said:

"I greatly hesitate to differ from four learned judges on the Wednesbury sense but for myself I would have been disposed respectfully to do this and to say that the actions of the council were unreasonable in the Wednesbury sense. But even if I am wrong in this view, I am clearly of the opinion that the manner in which the council took that decision was in all the circumstances unfair within the third of the principles stated in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374. The council formulated those four questions in the manner of which I have spoken and indicated that only such affirmative answers would be acceptable. They received reasoned and reasonable answers which went a long way in support of the policy which the council had accepted and desired to see accepted. The views expressed in these reasoned and reasonable answers were lawful views and the views which, as the evidence shows, many people sincerely hold and believe to be correct. If the club had adopted a different and hostile attitude, different considerations might well have arisen. But the club did not adopt any such attitude. In my view, therefore, this is a case in which the court should interfere because of the unfair manner in which the council set about obtaining is objective. "

10. Lords Bridge, Brightman and Templeman agreed with Lord Roskill.

11. Mr. Marshall who appeared for the respondent did not argue the contrary. I was, therefore happy to entertain the ground of unfairness. At the end of the day, however, it made little difference because the points relied upon were essentially the same points canvassed in relation to Wednesbury unreasonableness.

The thrust of Mr. Darwyne's complaints was that:

12. It was Mr. Marshall's contention that the attack upon the finding in relation to Charge A at least might be misconceived. He suggested that Wednesbury bury might not be the right test. He relied on LO Wing-tong (1990) 1 HKLR 325 where in delivering the judgment of the court Cons V-P said at page 338:

"It is well established that the courts will intervene where the evidence before a tribunal is not fairly and reasonably capable of supporting the finding made. As long ago at least as 1894 that was accepted in Allinson v. General Council of Medical Education and Registration [1894] 1 QB 750, at 760."

13. Mr. Marshall said that there are two different tests. The Wednesbury test starts with the decision and then reviews the basis on which it is made. The Allinson test focuses on the state of the evidence prior to the decision. Mr Marshall said that in applying the Allinson test, a conclusion that there is evidence precludes any examination of the actual decision of fact or finding because that is a matter for the tribunal of fact and not the reviewing court. He considered, however, that in most if not all cases, whatever test is applied, the same conclusion will be reached.

14. Mr. Darwyne pointed out that in Allinson the Court of Appeal in fact considered the evidence because at page 761 Lord Esher, M.R. said:

"Was the evidence, taken as a whole, reasonably capable of being treated by the council as bringing the plaintiff within that definition of "infamous conduct in a professional respect"? I cannot doubt that it was. It seems to me that it may be fairly said that the plaintiff has endeavoured to defame his brother practitioners, and by that defamation to induce suffering people to avoid going to them for advice, and to come to himself, in order that he may obtain the remuneration or fees which otherwise he would not obtain. If on the whole that which he has been doing could be reasonably construed as amounting to that, it comes, in my opinion, within the definition I have read, and the council were justified in saying that the plaintiff had been guilty of "infamous conduct in a professional respect"."

15. In my view there is a misunderstanding of what the Court of Appeal both in Hong Kong and England were doing. They were not considering the inherent character of testimony heard by the inferior tribunal. They were not considering the credibility or otherwise of witnesses. What they were doing was to look at the evidence accepted by the tribunal, that is to say the facts found and any inferences drawn from those facts in order to ascertain whether those facts and inferences were capable of supporting whatever offence was alleged to have been committed. That was the thrust of the decision of McMullin J. (as he then was) in HO Man-fat (No. 2) v. Royal Hong Kong Jockey club (1976) HKLR 452.

16. It is clear to me that the Allinson or Ho Man-fat tests overlap the second limb of Wednesbury. Whether the inferior tribunal having considered only matters which it ought to have considered has nevertheless reached a conclusion which was unreasonable perverse or absurd involves as in Allinson an overall appraisal of the evidence which was accepted by that tribunal.

17. Mr. Marshall seemed in some doubt as to Whether this second limb of wednesbury exists. There is no such doubt in my mind. It is plain from a reading of the judgment of Lord Greene in Wednesbury. There is good authority to support this view. In Wheeler Browne Wilkinson L.J. in the Court of Appeal said at page1064:

"It is now clearly established that the exercise of a discretionary power is unlawful if those exercising the discretion had regard to legally irrelevant matters or failed to take into account legally relevant matters. These are two instances of what in Associated Provincia Picture Houses   Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, were held to consitute unreasonable decision which could be quasned. There is another type of such "unreasonableness" constituted by the decision being so perverse that no reasonable body properly directing itself could have reached such a decision."

18. In Nguyen Ho and others v. Director of Immigration & another Civil Appeal 1990 No.185(unreported).  Sir Derek Cons, V-P after referrking to Lord Greene's classic statement. said at page 9: -

"From that exposition alone I am satistified that unreasonableness as a factor by itself what might be termed the second limb in Wednesbury can only be judged with regard to what was known to the inferior tribunal at the time."

19. The first limb of Wednesbury of course, is to examine whether in the course of reaching its decision, a tribunal has taken into account irrelevant considerations or failed to take into account relevant considerations. It is under this limb that the applicant essentially relies in this review.

20. In my judgment, however, these "tests" are all part of the Wednesbury picture. They are to be applied appropriately depending on the nature of the attack upon the decision under review.

21. The matter does not however rest here. Mr. Marshall argued that essentially the real issue is one of weight. He said that if there is evidence which is of probative value it is for the inferior trnbunal to decide what weight if any to attach to it. He relied upon Regina v. Deputy Industrial Injuries Commissioner ex parte Moore (1965) 1 QB 456 where at page 4, page 6 Diplock L.J. (as he then was) said:

"For historical reasons based on the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion cf. Myers v. Director of Public Prosecutions.

These technical rules of evidence however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to subsitute its own view for his".

22. It was Mr. Marshall's contention that the evidence of PW2 and PW4 was probative. The A.O. attaches weight considerable weight to it. In that exercise the A.O. cannot be attacked.

23. In general terms I accept that proposition. I would be unhappy to think however, that this court cannot interfere with a decision that was based largely upon the testimony of a witness or witnesses, whose credibility was suspect and where the inferior tribunal was either unaware of the reasons for that suspicion or, having had the reasons drawn to its attention, totally ignored them. In the former situation, it would of course be necessary to adduce fresh evidence. Mr. Darwyne in fact attempted to do this. He made an application to admit the various statements made by PW2 and PW4 to ICAC. This application was made in reliance on R. v. Knightsbridge Crown Court and another ex parte Goonatilleke (1986) 1 QB 1. In that case there was extreme fraud and perjury on the part of the prosecutor, a store detective in a shoplifting case. When this came to light after an appeal, the applicant in that  case applied to the Divisional Court for an order of certiorari on the ground that the conviction had been obtained by fraud. The Divisional Court came to the conclusion that such relief could not be granted unless it could be sure that the lower courts would have acquitted but for the fraud or perjury. The Divisional Court was unable to say it was sure, but went on to say that, because the applicant had been denied of what would have been a valuable plank in his defence, there was a breach of the rules of natural justice which entitled the applicant to relief by way of certiorari.

24. Mr. Darwyne said that an examination of the ICAC statements would demonstrate perjury, fraud or something akin thereto on the part of PW2 and PW4, but for which the applicant would have been acquitted. Having heard Mr Darwyne's application I made it clear to him that if I granted the application, there would have to be an adjournment to allow Mr. Marshall to grapple with this not altogether easy point, and that in any event I thought that there was not the remotest possibility of me being persuaded that perjury or fraud was arguable. In the light of my remarks the application was not pursued.

25. It was at the time clear to me that the situation was no different from the situation which is encountered daily in our courts where a witness says something inconsistent with or contradictory to an earlier statement. This is for the very good reason that memory is fallible and confusion in remembering events moths possibly years old is inevitable. Had Mr. Darwyne's application been a preliminary application for leave I would have rejected it without hesitation.

26. This application for review nowever, is an example of the situation where the inferior tribunal was aware of the reasons for suspicion. Those reasons were canvassed in evidence which was before the A.O., referred to in written submissions by both sides and adverted to by the A.O. in his reasons. In such circumstances, it is simply not open to the applicant in my judgment to attack the A.O.s acceptance of the two witnesses, particularly PW2, as credible witnesses to whose evidence weight could be attached. To that extent this application is but a disguised appeal and must fail. Otherwise I would be usurping the fact finding function of the A.O. and wholly underminding the principles on which quasi judicial tribunals such as this are based.

27. That this application was effectively an appeal is demonstrated by the course which the hearing took. The evidence of PW2 and PW4, both before the magistrate and the A.O., was examined in some detail. Various contradictions and inconsistencies were analysed including those in the transcript of proceedings before the magistrate in relation to earlier ICAC statements. It was pointed out that both witnesses were tainted in view of their admitted dishonesty in concealing money from the Social Welfare Department Indeed both gave evidence before the magistrate under an immunity from prosecution. In addition PW4 admitted having a criminal record in relation to drug and gambling. It was, however, at least 20 years since his last conviction. I was also treated by counsel to submissions as to why other parts of the evidence supported or failed to support the inherent credibility of these witnesses. This was pure advocacy of the type suited to a trial not to a review.

28. Manifestly all these considerations were for the A.O. and not for this Court. Either the A.O. heard and dealt with all these - which he did - or he did not - in which case this Court could review the decision. No exhausting (I use that word advisedly) analysis of the evidence is necessary. The A.O. either took the point on board or he did not.

29. In his reasons the A.O. said:

"During the proceedings it is noted that PW2, had a poor understanding and perception of facts and sequences of events. From her demeanour before me she appeared genuine and was moved to tears when questioned by the defence. Although I noted there are a lot of inconsistencies in her statement compared with the notes of proceedings from court I am convinced that she is a credible witness."

30. It is true that that is a brief analysis. Apart from its brevity it is criticised as being too reliant on demeanour because, before relying on it demeanour should be tested against all the evidence see R. v. LO Shu chuen (1991) 1 HKLR 36 per O'Connor J. Again, this suggests that this application is an appeal rather than a review. It seems to me however, that the A.O. was testing demeanour against other evidence when he made reference to the discrepancies. Further, the A.O. went on to discuss the situation of a woman as simple as PW2 carrying on what Mr. Marshall has called a wealth disguising operation. It is also necessary to keep in mind that the A.O. was not a professional judge or magistrate. In my view the A.O. dealt adequately with PW2.

31. The only point that caused me any unease was this final passage in the A.O. s reasons in relation to Charge A:

"The case was that the defaulter made application on behalf of PW2 and was present when Mr. LEUNG outlined the criteria and then on 5.2.88 the defaulter was aware that PW2 s assets had exceeded the limit laid down. There was no evidence before me that the defaulter reported it, being a police officer. Hence I find the defaulter's conduct in this event falls short of the standard of a police officer and that the A charge is proved beyond doubt."

32. Mr. Leung was an officer of the Social Welfare Department

33. Here the A.O. seems to be suggesting that because the applicant failed to report PW2 s means to the Social Welfare Department he was necessarily guilty of conduct of the type alleged in Charge A Bearing in mind however, that the A.O. was not a professional adjudicator I am satisfied that the final sentence is no more than a final conclusion drawn from all the evidence before him. In any event, even if I am wrong the decision could hardly be vitiated on account of that sentence alone once the A.O. had accepted PW2 s evidence which contained all the necessary ingredients of the offence.

34. Assuming I am wrong in terming this application an appeal rather than a review let me record that the applicant would have been no more successful. The main thrust of the complaint was the inconsistencies and contradictions. These covered matters such as who went in to the Hong Kong Bank and the Chartered Bank and the circumstances in which they went to the Hong Kong Bank in the first place. All of this reminded me, I fear, of the dreadful sort of cross-examination that magistrates had to endure in "pak pai" cases - the endless question of the police officer as to whether he used his left hand or right hand to pay the fare which hand the driver used to receive it, and whether the car had stopped outside House No. 1 or House No. 2 in such and such a road.

35. Suffice it to say that all the contradictions and inconsistencies complained of are exactly the sort that a court expects of people trying to remember events that occurred months before. The essence of the evidence however remained unimpaired namely, that it was the applicant who suggested the idea of concealing money and who took an active part in this by going to the Hong Kong Bank on 5th February. The idea that PW2 and PW4 having been found out by the Social Welfare Department conspired to pass the blame to the applicant as the instigator of the exercise is, if I may be forgiven for saying so, wholly unreasonable.

36. I do not think I can put it better than this. I would not have been particularly surprised if the A.O. had rejected the evidence of PW2. I am not, however, surprised that he accepted it.

37. I turned to Charge B. The detailed complaints here are that:

38. Following his acquittal on the theft charges the applicant was interviewed by Chief Inspector CHAN on 8th December 1989. As he was obliged to do the applicant answered the questions which began with the following acknowledgement:

"I am now assisting CIP Chan Wah-shing at Internal Investigations Office with his investigation of an allegation lodged to ICAC by NG Lai fong against me for taking $3,000 and $50,000 from her on 27th January 1988 and 5th February 1988 respectively."

39. In evidence before the A.O. Chief Inspector Chan said that he told the applicant he was conducting an enquiry into an allegation of theft referred from ICAC. In cross-examination he said:

40. In the light of this, it is contended the applicant was put on the defensive and adopted an attitude of "I can't remember" rather than one of willing assistance in order to try and clear up a misunderstanding. Consequently the answer "of course not" is arguably not a deliberate denial, but rather an answer showing exasperation with the questions and containing an implicit "I can't remember now".

41. I do not think it can seriously be maintained that the question to which this answer was given was not material. Clearly it was of importance whether the applicant was at the Hong Kong Bank with the witnesses when indisputedly sums of money were transferred out of PW2's account. $40,000 were transferred direct into PW4's account and although it is not admitted $50,000 cash was paid into the applicant's account at the nearby Chartered Bank.

42. Chief  Inspector Chan's choice of language was perhaps infelicitous. (For the future, the Commissioner of Police might consider something which makes plain that the investigation being conducted is in order to ascertain) whether there is any need for disciplinary proceedings). It seems to me, however, idle to suggest that the applicant as a police sergeant did not realise the purpose of the investigation, particularly in the light of paragraph 7 of the Memorandum dated 13th April 1989 by which he was interdicted. That paragraph reads:

"Officers who are acquitted of a criminal offence or in respect of whom an investigation into criminal activities has not resulted in formal criminal charges will not normally be reinstates to duty until a full disciplinary investigation has been conducted. However if it is decided to reinstated you to duty prior to the conclusion of such investigation your reinstatement will not preclude disciplinary charges being held against you".

43. Further, while some of the questions asked of the applicant admitted of "can't remember" answers Q.20 was in the circumstances one which the applicant might be expected to answer with precision. The applicant did so. His answer was one which might help deflect suspicion from him. Consequently I do not consider there is anything in the first three points.

44. The final point is more difficult. I am satistified that Q.20 in its English translation is capable of meaning, and in the context reasonably means both going to and being present in the Hong Kong Bank with the witnesses. The complaint is that, as put in Cantonese, the question might not necessarily have carried the connotation of presence. I say the point is difficult because Mr. Darwyne and therefore this court are hampered by the lack of any evidence as to the meaning in Chinese. I rejected twice Mr. Darwyne's application to adduce fresh evidence because, insofar as the A.O. was wrong, his error was rather one of law or material fact which was not apt for correction in terms of Wednesbury unreasonableness or perversity In any event from Nugyen Ho it is apparent that there is considerable doubt as to whether fresh evidence may be admitted where Wednesbury is being relied upon.

45. The proceedings before the A.O. were conducted in Punti. The applicant disputed the construction of Q.20 claiming it was imprecise. The A.O. therefore was alive to the true nature of the dispute which it was for him to resolve. I am unable to say that that resolution was unreasonable or perverse. Thus having accepted PW2's evidence that the applicant went into the bank and helped transact business with her, the A.O. s finding was clearly correct.

46. Accordingly this application is dismissed. I make an order nisi that the respondent has the costs.

47. I cannot leave this application, however, without making some observations upon judicial review proceedings. Apart from the application to admit statements made by PW2 and PW4 to ICAC, and to admit evidence as to the correct translation and meaning of Q.20, I also heard   an application to amend the grounds of relief in the following terms:

48. The points to be taken under these grounds were not straightforward. They could not reasonably have been anticipates by the respondent. I was prepared to allow the amendment subject to an adjournment to allow Mr. Marshall to consider the new issues. For personal reasons the applicant did not want an adjournment. Consequently the application proceeded on the unamended grounds.

49. I also ruled upon 2 ICAC statements which had been included in the applicant's bundle. As they had not been before the A.O. I ruled them inadmissible.

50. Finally, I heard an application to admit a further affirmation by the applicant by which it was hoped to take a point about the failure by the respondent to comply with the time table laid down in Regulation 14 (Police) (Discipline) Regulations. The application was ultimately withdrawn .

51. This application therefore is an object lesson in the need for an applicant, in reality his legal advisers, to consider carefully what points are going to be taken that is to say the areas in which it will be alleged a decision maker has erred, and what grounds are to be relied upon (I emphasise that Mr. Darwyne was not responsible for the application for leave in this case). If that is done there will be two benefits. First, the judge hearing the application for leave will more easily be able to guage whether any of the grounds are arguable There is at least in some cases a tendency to a broad brush approach which is to be deprecated because it makes it difficult for the judge to apply his mind to the individual grounds, some of which mignt properly be rejected.

52. A proper and careful consideration of what is being advanced is of growing importance at a time when the number of applications for leave for judicial review and the pressure on the courts is increasing rapidly. In 1988 there were 29 applications for leave, 26 were granted and 4 were ultimately successful. In 1990 there were 75 applications for leave 62 being granted with 9 so far being successful

53. Second the hearing of the motion will not be impeded by ongoing skirmishing as to whether a point or ground may legitimately be argued. Applicants should certainly not rely on obtaining leave to amend grounds, on terms or otherwise.

Representation:

Mr. M. Darwyne, inst'd by Messrs. Alsop Wilkinson for Applicant.

Mr. W.R. Marshall Q.C. and Miss P. Scully of A.G.C. for Respondent.