Tse Lo Hong v. Attorney General

HCMP003261/1994

1994, No.MP3261

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram : Hon Jerome Chan J. in Court

Date of hearing : 20 January 1995

Date of handing down judgment : 30 January 1995

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J U D G M E N T

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1. The applicant was a sergeant of the Royal Hong Kong Police Force until his dismissal on 1 November 1994. After over 28 years of service, he was found guilty on 2 counts of disciplinary offences on 27 June 1994 by a disciplinary tribunal. For the first count of neglect of duty contrary to regulation 3(2)(h) of the Police (Discipline) Regulations, Cap.232 (the Regulations) , the applicant was awarded the penalty of a severe reprimand on 27 June 1994. For the second count of conduct calculated to bring the public service into disrepute contrary to regulation 3 (2)(m) of the Regulations, he received the penalty of reduction in rank and dismissal from the force. As the penalty in respect of the second count was beyond the jurisdiction of the Adjudicating Officer presiding over the tribunal, the applicant was referred to a Senior Police Officer on 12 July for imposition of the said penalty. The findings and awards of the tribunal and the Senior Police Officer were confirmed by the Force Discipline Officer on 22 September 1994. The applicant's appeal to the Commissioner of Police was dismissed and by a memorandum dated 27 October 1994 the applicant was advised of such confirmation and he was dismissed from the force with effect from 1 November 1994.

2. Pursuant to the applicant's application dated 17 November 1994, leave was granted to apply for judicial review of the tribunal's determination of 27 June 1994.

Count One

3. On 14 September 1992 the complainant, a housewife aged 44, reported a case of burglary at her flat with cash and jewellery stolen. The applicant then came to her flat to conduct investigation into the case. Thereafter, the applicant made telephone calls to her on a number of occasions and invited her to go out with him. On 20 September 1992, the complainant's flat was burgled again and a pair of earrings stolen. The complainant alleged that the applicant advised her not to report the second burglary to the police and simply treat the earrings as part of the property stolen in the first burglary. Such an advice by a police officer, if proved, would be a neglect of duty contrary to regulation 3(2)(h) of the Regulations.

4. The applicant's case is that the complainant telephoned him and told him about the second burglary and the stolen earrings. He said she informed him that a report of the burglary and stolen earrings had already been made to the police and that officers had already come around to her flat. He alleged she further told him that she would not want to make any further statement as the stolen property in the first burglary had not been recovered yet. His defence on count one is a complete denial of the accusation.

Count Two

5. On 24 September 1994, the complainant alleged that the applicant telephoned her and insisted that he would come to her flat to collect the sales memos of her stolen jewellery despite her observation that such sales memos would not assist in the investigation of the crime. Apprehending trouble, the complainant alleged, she telephoned her godfather and her female cousin advising them that the applicant would be coming to her flat at about noon and asked them to come to keep her company. Neither could come to her assistance as a result of other commitments. However, the cousin said she would telephone the complainant every 5 minute. The complainant alleged that after the applicant arrived at her flat at about noon , he made advances to her. She said the complainant massaged her left arm and shoulders. She did not object initially, but after a couple of minutes she did ask him to stop. She said when she asked him to leave he manhandled her to the bedroom and forced her onto the bed. She struggled without success and the applicant touched her pubic area over her underpants and told her he wanted to kiss that part of her body. She ultimately managed to escape. When the applicant left he did not ask for the sales memos he said he was coming to collect. The complainant alleged that immediately after the applicant had left, she made telephone calls to her godfather and cousin about the incident. The cousin confirmed receiving a call at around mid-day that day from the complainant. She found the complainant to be emotional and angry when she told her about the assault.

6. The applicant's case is again a complete denial of the incident. He said he was working in the police station during the morning of that day. He went out for lunch at about 12:35 pm. He said he was walking down Lockhart Road at about 12:50 pm when he had a chance meeting with the complainant. He told the complainant that it would help if the sales memos of the stolen properties could be given to him. He alleged the complainant lost her temper and started to abuse him and the police force for not putting more effort into the case. He said she complained of insomnia and depression as a result of the case. He said he then walked away from the complainant and returned to the police station without taking any lunch. The applicant's version of events prior to his departure from the police station was confirmed by another police officer who gave evidence for the defence.

The Objections

7. The applicant contends the Adjudicating Officer erred in the following respect :

(i) That he wrongly held that "the fact that the Applicant's actions may have amounted to indecent assault or any other criminal offence is irrelevant to these proceedings and not a matter for consideration";

(ii) That he wrongly held that the standard of proof required was proof on a balance of probabilities;

(iii) That he gave the impression, as regards certain features of the evidence, that the applicant had the burden of establishing material facts;

(iv) That he wrongly minimised the significance of the complainant's conviction for an offence of dishonesty;

(v) That he failed to appreciate the need to see whether corroborative evidence existed; and

(vi) That he wrongly characterised the evidence of 2 supporting witness as being corroborative of the complainant.

Ground One

8. The statement the applicant complains of was made by the Adjudicating Officer in the following context :

"Criminal nature of A) Charge

46. The Defence say that the A) charge '........ is, in fact, a case of 'Indecent Assault'. It is criminal ......" The defence quote article 10 of the Bill of Rights as an argument that the A) Charge should not be heard by a domestic tribunal. The defence are of the opinion that the Attorney General wrongly decided that the venue of trial for this case having considered the quality of the evidence to be inadequate for a criminal trial.

47. The Bill of Rights has no relevance to these domestic proceedings. The defaulter has not been charged with the criminal offence of indecent assault, or anything similarly criminal. Whether the defaulter's action amount to indecent assault or any other criminal offence is irrlevant (sic) to these proceedings and not a matter for consideration."

9. It is the function of a court in a judicial review to supervise the exercise of quasi-judicial powers of the administration. However, in doing so, it is not the function of the court to subject a determination of a domestic tribunal to a lawyer's relentless knife in a judicial surgical dissection. The determination cannot be construed like a statute. Nor should it be subject to the punishment of fine surgical analysis in isolated compartments. A statement made in a determination should not be segregated and be put to apathetically literal construction out of context.

10. This proper approach in the construction of a determination is clearly illustrated in A.G. v. Tsui Kwok Leung [1991] 1 HKLR 40, another judicial review of a determination of the police disciplinary tribunal. At page 43 of the report :

" As regards the Superintendent's findings the words impugned were :-

'The defence has not managed, in my view, to rebut the case presented by the prosecution.'

The judge found that he thereby erred in his approach to the onus and consequentially to the standard of proof and showed that he did not appreciate that it was for those who brought the charges to prove them and that no evidentiary burden rested on the defaulter.

Looking at the Superintendent's findings as a whole it is clear beyond a peradventure that on all material issues he accepted the testimony of the prosecution witnesses and rejected that given by those called on behalf of the defaulter. Neither the Superintendent nor the Chief Superintendent were lawyers but would have had available to them the guidance as to burden and standard of proof appearing in paragraphs 16 to 18 of Annex J to the Police Discipline Manual. Like 'the Guide' referred to by Webster J, whose general conclusions we do not accept, in R v Home Secretary ex parte Tarrant, [1985] 1 QB 251 at p 284, it is a document warmly to be commended. With all respect to the judge who, like us, was working from the record, we construe the critical words, in context, as meaning no more than that the defence evidence had not caused the Superintendent to change the favourable view of the prosecution witness which, provisionally, he had formed." (emphasis added)

11. Furthermore, when reading a determination in its proper context it should always be borne in mind the specific circumstances and matter that each statement was dealing with. The Adjudicating Officer was there dealing with a Bill of Rights argument based on the allegedly criminal nature of the charge. The defence insinuated that it was an abuse to charge the applicant in a domestic tribunal as a result of insufficient evidence for laying a criminal charge. The contention was that the applicant should have been prosecuted in a criminal court and not disciplined in a domestic tribunal. It was in this context that the Adjudicating Officer found the criminal nature of the complaint against him to be irrelevant as he was only facing the charge in a domestic disciplinary tribunal and not charged with any criminal offence in a criminal court. Such a statement is a far crying from the alleged misapprehension on the relevance of the criminal nature of the charge in relation to the standard of proof applicable. The Adjudicating Officer was not dealing with the standard of proof in the quoted passage. The standard of proof was specifically dealt with by him separately in the subsequent paragraphs under another express heading. I am wholly satisfied that if the impugned statement is read in its proper context there could be no room for any criticism.

Ground Two

12. The standard of proof required of a police disciplinary tribunal has been the subject of quite frequent judicial consideration in recent years. The contention that it should be on the criminal standard of beyond a reasonable doubt had been advanced on behalf of applicants on many occasions. Such controversy has finally been put to rest by the Court of Appeal in Tsui Kwok Leung. It was a case involving identical charges as the present case though the particulars relied on differed considerably. The applicant was alleged to have held on to the complainant's tie for an unduly long period of time and dragged him from the premises, and had also failed to identify himself and informed the complainant of the reason for his arrest as soon as practicable. The particulars complained of would amount to a criminal offence of common assault. The Court of Appeal extensively reviewed the state of local, English and Privy Council authorities and concluded at pages 45-46 of the report that :

" Generally in civil proceedings, which, in our opinion, must include those conducted within the parameters of the Police (Discipline) Regulations, it remains good law that the civil standard of proof obtains albeit when considering, for example, an allegation of fraud, a higher degree of probability will be required than when considering an allegation of negligence. The degree of probability, falling short of satisfaction beyond all reasonable doubt, must be commensurate with the occasion even when the liberty of the subject is at risk. In cases of great gravity and in the realm of vendor and purchaser of land the civil standard may well approximate to the criminal. R. v. Wolverhampton Coroner, ex parte McCurbin [1990] 1 WLR 720; MEPC Ltd. v. Christian-Edward & Ors [1981] AC 205. Authority for this general proposition is to be found in Bater v. Bater [1951] P 35; Hornal v. Neuberger Products Ltd; Blyth v. Blyth; R. v. Hampshire County Council, ex parte Ellerton [1985] 1 WLR 749, a decision which the respondent contends was made in error, and Khawaja v. Secretary of State for the Home Department [1984] AC 74. It would also seem that what might be a reasonable doubt in a criminal context would not be a reasonable doubt in civil proceedings."

13. The applicant contends that the recent Privy Council decision in McAllister v General Medical Council [1993] AC 388 resurrected the issue in that it watered down the certainty reached in Tsui Kwok Leung. McAllister, a Scottish doctor, was facing charges of dishonesty in respect of a cheque before the Professional Conducts Committee of the General Medical Council. It was held that in a charge of serious professional misconduct the conduct of the proceedings before the committee had to be fair to the doctor concerned, but it was unnecessary in all such proceedings for the onus and standards of proof appropriate to a criminal trial to be applied, although it might be appropriate to do so if the charges against the doctor being considered by the committee related to incidents on which serious criminal charges could also have been based. After considering the dictum of Lord Lowry in Lanford v. General Medical Council [1990] 1 AC 13 ( a decision the Court of Appeal in Tsui Kwok Leung refused to follow in preference to conflicting decisions in the unreported Privy Council case of Tarnesby v. GMC, PC App. No.21 if 1969, and Khawaja); Lord Jauncey delivering the judgment of the Committee said at page 399 :

"Their Lordships do not consider that the above dictum can be treated as having universal application in all cases arising before the committee. In charges brought against a doctor where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the onus and standards of proof should be those applicable to a criminal trial. However, there will be many cases, where the charges which a doctor has to face before the committee could not be the subject of serious or any criminal charges at all. The committee is composed entirely of medical man and women learned in their profession and to required that every charge of professional misconduct has to be proved to them just as though they were a jury of laymen is, in their Lordships' view, neither necessary nor desirable. What is of prime importance is that the charge and the conduct of the proceedings should be fair to the doctor in question in all respects."

14. The Committee was clearly of the view that the wide statement of Lord Lowry in Lanford that criminal onus and standard of proof applied to disciplinary proceedings conducted by the General Medical Council was a dictum that would not have been couched in such wide terms had the relevant 1988 Rules been drawn to the attention of the Board. Secondly, the observation of the Committee in McAllister on the propriety of application of criminal onus and standards of proof to such medical disciplinary proceedings is itself a dictum since it was held in that decision that the proceedings are civil in nature and does not require corroboration even if Scottish laws were to be applied.

15. I am not persuaded that McAllister has reopened the issue in Hong Kong in respect of police disciplinary proceedings. Tsui Kwok Leung has put the issue beyond any controversy. Proceedings in the Police Disciplinary Tribunal are civil in nature, and the civil onus and standard of proof apply to such proceedings. In this respect, one should bear in mind the wise words of Lord Scarman in Khawaja at page 112 of the report :

"My Lords, I have come to the conclusion that the choice between the two standards is not one of any great moment. It is largely a matter of words. There is no need to import into this branch of the civil law the formula used for the guidance of juries in criminal cases. The civil standard as interpreted and applied by the civil courts will meet the ends of justice."

Later on at page 113, he said :

" The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake.............the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue: Dixon J. in Wright v Wright (1948) 77 C.L.R. 191, 210."

16. The civil courts are no strangers to allegations of fraud and dishonesty that may well found criminal charges. Such allegations have always been approached with care and caution by the application of a more stringent degree of probability. To attempt to formulate such probabilities is an exercise both unwarranted and dangerous. To echo the words of Cons JA, in Tai Hing Cotton Mill v. Liu Cheong Hing Bank Ltd. & Others [1984] HKLR 95 at page 114 :

"It is then complained that even so he failed to indicate the exact standard, between the extremes of mere balance of probabilities and beyond reasonable doubt, which he thought would be appropriate in the particular circumstances. With respect I find no merit in this point. The judge indicated most clearly that he would not be satisfied by the former. I do not think he is required to go further and analyse his feelings to ascertain, and express if he can in suitable language, the precise degree of his conviction."

The question of expressing the degree of conviction in a balance of probabilities exercise was also dealt with by Slade L.J. in R. v. Hants, C.C., ex parte Ellerton [1985] 1 WLR 749 at 761 :

"A number of the speeches in the Khawaja case [1984] A.C. 74 use phrases such as a "high degree of probability" or corresponding phrases: see, for example, p.97G per Lord Fraser of Tullybelton, p.113H per Lord Scarmen, p.124E per Lord Bridge of Harwich and p.128C per Lord Templeman. Lord Scarman referred, at p.113H, to the 'flexibility of the civil standard of proof.' However, my understanding of the concept of the flexible standard of proof reflected in the speeches in the Khawaja case is not that it involves proof on (say) a 51 to 49 balance of probabilities in some cases and (say) a 75 to 25 balance in others: any sliding scale of this nature would lead to intolerable uncertainty in application. My understanding of the concept, which I think was that of the judge, is simply that the relative seriousness of the allegation is a relevant factor (on occasions a highly relevant factor) in considering whether or not the civil burden of proof on the balance of probabilities has been discharged in any given case. This, as I understand it, was essentially the point which their Lordships thought it right to spell out in the Khawaja case in the particular context of an allegation of illegal entry. However, in other cases, of which I think the present was one, the point may be so obvious that it does not need to be put into words."

In that case the fire officer was facing charges of corrupt practice in that he made personal use of a fire brigade vehicle. I agree with the sentiment and observations of the said judges, in particular that of Slade L.J.

17. The Adjudicating Officer found as follows :

"Standard of Proof

48. The Defence quote a civil case, namely Bater v. Bater etc., as their argument for a criminal standard of proof being adopted in these domestic proceedings in which the A) charge is particularly serious in nature.

49. The consequences of a finding of 'Guilty' in a case of this nature must be serious, likely to attract the maximum punishment of dismissal. Whilst I accept that the Tribunal is bound to weigh the evidence up extremely carefully in a case such as this, the fact is that it is still a civil case and the civil standard of proof 'on the balance of probability' remains. The normal rules of evidence in a criminal court, such as hearsay, do not apply."

18. It is beyond a peradventure that the Adjudicating Officer clearly understood the correct standard of proof applicable, with a proper appreciation of the serious nature of the charges. It was at the forefront of his mind that extreme care was required albeit that the civil standard was to be applied. I found the Adjudicating Officer's understanding of the correct standard of proof and the proper approach in reaching a determination in the application of such standard to be unassailable. As with the tribunal in Tsui Kwok Leung, the Adjudicating Officer had Annex J to the Police Discipline Manual to assist him in the appreciation of the standard of proof applicable.

Ground Three

19. The applicant complains of a misplacing of the onus of proof on him to establish the circumstances of the previous conviction of the complainant for an offence involving dishonesty in the obtaining of a replacement identity card. It is contended by the applicant that the conviction showed that the complainant was an unreliable witness. The Adjudicating Officer dealt with the issue in this manner :

"55. The Defence have not been able to ascertain the prosecution facts of the said case. The explanation given by PW1 does tend to fit the the (sic) wording of the offence and it would appear, from the wording of the section , that there is an element of dishonesty in the offence. It would appear from the punishment that the offence committed by PW1 was not regarded as serious. Secondly, this is her only conviction and she has not been convicted of any other offence since then. I find that PW1's evidence is not adversely affected by her previous conviction."

The Adjudicating Officer then went on to consider and dismissed an allegation that the complainant had been coached in her evidence by her cousin's husband, a police officer. It is clear to me that the Adjudicating Officer had not misplaced any burden of proof as alleged or at all. The Adjudicating Officer made a finding that when the applicant raised the issue of the character of the complainant he had not placed sufficient material before the tribunal to shaken the impression it had of her credibility. It is not for the prosecution to establish the circumstances of the complainant's previous conviction. Furthermore, the applicant had never sought assistance from the prosecution in the production of relevant court records or other information. Without any sufficient material before the tribunal, the Adjudicating Officer had dealt with the issue properly and as best he could. His finding in the circumstances is beyond criticism.

20. The applicant also complains that the Adjudicating Officer had misplaced the burden of proof in dealing with the issue of the complainant's alleged dishonesty in concealing her alleged knowledge of the breaking in at her flat. This complaint was dismissed by the Adjudicating Officer for similar reasons as the preceding one. The Adjudicating Officer found that though police investigation at her flat disclosed evidence of a breaking in, there was no evidence that the complainant was ever made aware of this by any police officer. The Adjudicating Officer cannot be faulted for any alleged misplacing of burden of proof in such a finding.

21. Finally, the applicant complains that throughout the determination the Adjudicating Officer had repeatedly accused the applicant's testimony and defence evidence to be "uncorroborated". It is true that the Adjudicating Officer is guilty of using such terminology in describing the defence evidence. However, if one read such descriptions in their proper context, it can immediately be seen that he was using "uncorroborated" indiscriminately as "unsupported". There is no doubt in my mind that he did not use the term in its legal sense as a lawyer would understand it. In all likelihood the Adjudicating Officer was borrowing the term from paragraph 11 of Annex. J of the Force Discipline Manual, where the term corroboration was loosing use to mean supporting testimony without any implication on the burden of proof. Reading the determination as a whole, I am left with no doubt at all that the Adjudicating Officer was fully aware that it was for the prosecution to establish not only the guilt of the applicant, but also to discharge the burden of satisfying the tribunal on all facts necessary to found such guilt. I am not persuaded that by the indiscriminate and cavalier use of a legal term, without the intention to attribute to it its full legal effect, the Adjudicating Officer had misdirected himself on the burden of proof as alleged by the applicant or at all. The Adjudicating Officer had clearly not intended to place any unwarranted burden of proof upon the applicant when describing defence evidence as being "uncorroborated". To do justice to themselves, administrators presiding over administrative tribunals, in particular those without any assistance of legal advisers or lawyers, should refrain from using technical legal terms or jargons in their determinations to avoid attributing to their reasons a wholly unintended and unwarranted distortion. The danger of laymen attempting to use legal terminology is too obvious a point to further labour.

Ground Four

22. The substance of this complaint has been dealt with under Ground Three supra. The Adjudicating Officer was entitled to take into consideration the known circumstances of the previous conviction and to arrive at the conclusion on their effects in the manner he did. I find this complaint to be void of any merits.

Grounds Five and Six

23. This is the most substantive complaint made by the applicant in the judicial review. It is rightly conceded by the respondent that the Adjudicating Officer erred in finding the evidence of the complainant's cousin and godfather on the recent complaints to be "circumstantial corroboration of such quality as should not be disregarded" (emphasis added). It is trite law that recent complaints cannot afford corroboration in a sexual offence. However, the relevance and significance of that error in the context of his determination have to be considered.

24. The issue of corroboration was dealt with by the Adjudicating Officer in the following manner :

"Lack of corroboration

52. The Defence state that, without corroborative evidence of the gravamen of the A) charge, the defaulter has to be acquitted.

53. I do not accept this assertion. The manner in which PW1 gave her evidence; her demeanour and her attitude; left an impression of truthfulness and sincerity which simply did not need corroboration. Notwithstanding, I was impressed with the evidence of both PW2 and PW3, the sum of which amount to circumstantial corroboration of such quality as should not be disregarded."(emphasis added)

25. He held in no uncertain terms that corroboration was not required to substantiate the charges. He further held that the quality of the complainant's evidence was such that he was satisfied of its truthfulness without corroboration. The applicant, somewhat departing from his grounds dated 17 November 1994 (without objection from the respondent), contended that corroboration, or alternatively a warning to himself of the danger of finding the applicant guilty without it, is required before the applicant could be found guilty on the second count of misconduct. It is submitted that such a requirement is founded on the particulars of the count being of a nature involving a sexual complaint. The applicant based this submission, firstly, on his contention that the proceedings are criminal in nature with the consequence that the criminal standard and burden of proof are applicable thereto. Alternatively, the applicant contended that even if the civil standard and burden of proof applied, the serious criminal nature of the accusation required corroboration or a warning of the absence of it be given.

26. The applicant's first contention founded on its submitted criminal standard and burden of proof must fail for reasons given supra. On his alternative submission, should the requirement of corroboration nevertheless be brought into disciplinary charges involving sexual complaints on the same or similar basis as the criminal standard?

27. No corroboration, or a warning of the absence of it, is required in a civil claim founded on sexual complaints. For example, the applicant did not suggest that there can be such a requirement in an action for damages in tort founded on an indecent assault or rape. Can a departure from this general principle in disciplinary proceedings in a domestic tribunal be justified on any grounds?

28. The applicant placed heavy reliance again on the dictum of Lord Lowry in Lanford. In the medical disciplinary tribunal cases, regulation 50 of the English 1988 rules deals with admissibility of evidence in certain circumstances but makes no reference to corroboration which has therefore not been made the subject of any provision. In the circumstances the Privy Council made the following observation in McAllister :

"The committee is composed entirely of medical men and women learned in their profession and to require that every charge of professional misconduct has to be proved to them just as though they were a jury of laymen is, in their Lordships' view, neither necessary nor desirable. What is of prime importance is that the charge and the conduct of the proceedings should be fair to the doctor in question in all respects. It is not without significance : (i) that rule of the Rules of 1988 clearly contemplates that the committee may consider evidence which would not be admissible in criminal proceedings; and (ii) that the rules nowhere provide that criminal standards of proof and corroboration must at all times apply.

Neither rule 50 nor any other rule required to be considered by this Board in Lanford v. General Medical Council [1990] 1 A.C. 13 and their Lordships doubt whether the dictum at pp. 19-20 would have been couched in such wide terms had it been drawn to the attention of the Board. Indeed if Parliament had intended that rules of evidence appropriate to criminal proceedings should apply in all proceedings before the committee, it is surprising that the council were not directed to make such rules in paragraph 1(1) of Schedule 4 to the Act of 1983."

29. I can see no justification for applying criminal rules of evidence and practice to disciplinary proceedings. These proceedings are civil in nature despite the dire consequences that may be brought upon their subject in some cases. A proper understanding of that high degree of probability which is required of the tribunal prior to a finding of guilt is sufficient safeguard for the subject of the complaint. There is no need to seek assistance from the rules of evidence and practice of the criminal courts. The civil standard is adequate to protect the interests of the subject facing the accusation.

30. Lord Diplock made the following observation in Mahon v. Air New Zealand Ltd. [1984] 1 AC 808 at pages 820 - 821 in respect of the rules of natural justice in the exercise of an investigative jurisdiction:

"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 R. v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 QB 456, 488, 490, which was dealing with the exercise of an investigative jurisdiction, though one of a different kind from that which was being undertaken by the judge inquiring into the Mt. Erebus disaster. 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 that a person represented at the inquiry, whose interests (including in the 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."

Lord Diplock was there referring to his own decision in Moore. His classic exposition of the principle in the 1965 decision was approved by the Court of Appeal in Re Lo Wing-tong [1990] 1 HKLR 325. In Moore, Diplock L.J., as he then was, said at 488 :

"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 : c.f. Myers v. Director or 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 substitute its own view for his."

31. As corroboration or a warning of the lack of it is not a requirement in the proceedings before the Adjudicating Officer, his error to treat the evidence of the cousin and godfather as "circumstantial corroboration" is of no moment at all to the determination. Though such evidence is not probative to establish the truth of the complaint itself, they are probative in the consideration of the credibility of the complainant's allegation of making recent complaints, and of the telephone calls for assistance she allegedly made prior to the occurrence of the unhappy incident. I am not convinced that any criticism can be made against the Adjudicating Officer alleging a failure to appreciate the fact that the complainant's evidence was not supported by any independent evidence. He was satisfied of the guilt of the applicant on the complainant's evidence alone as he stated in clear terms. He was clearly aware of the advice in Annex. J of the Force Discipline Manual that in serious charges, one should look for supportive evidence. In fact, the advice in the manual went beyond the requirements stipulated by any criminal standard in that it advised of supportive evidence in "more serious charge which could result in serious consequences for the officer such as dismissal"; and not only in respect of recognised categories in criminal law where corroboration is required or desirable. I find no merits in this ground.

32. I am satisfied that the applicant was given a fair hearing and that the evidence before the Adjudicating Officer amply justified his findings. I am not satisfied that the applicant had been able to make out any valid grounds of objection against the findings of the Adjudicating Officer and his application for orders of certiorari to quash the determination of the Adjudicating Officer and the awards made consequential thereto is dismissed. No grounds have been shown why costs should not follow the event and an order nisi for costs to be awarded to the respondent against the applicant is made.

Representation:

Mr Philip Dykes, inst'd. by M/s Pang, Tang, Wan & Choi, for Applicant

Miss Lynda Shine and Miss Susana Sit, S.C.C. of Crown Solicitors, for Respondent