Au Yeung Kwok Hing v. Attorney General

HCMP003513/1992

1992 M.P. No. 3513

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Mayo in Court

Dates of hearing: 5 and 6 October 1994

Date of delivery of judgment: 6 October 1994

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J U D G M E N T

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1. The Applicant who was a serving police officer is seeking the Judicial Review of the findings in Disciplinary Proceedings when he was found guilty of conduct calculated to bring the public service into disrepute and was compulsorily retired from the service.

2. He seeking an Order of Certiorari to quash the order and to have it set aside.

3. At the commencement of the hearing Mr. Sarony Q.C. who was representing the Applicant sought leave to effect fairly radical amendments to the statement made pursuant to Order 53 rule 3(2). Notwithstanding Miss Watson for the Respondent's objection I granted the requisite leave.

4. The amendment relevant to the issues argued before me was as follows: -

(e) The Disciplinary Proceedings were conducted mala fides in that : -

(a) Prior to the Applicant giving character evidence in the United States District Court, Southern District of New York :-

(i) The Royal Hong Kong Police had been in communication with the District Attorney prosecuting the case in the United States District Court, Southern District of New York;

(ii) Information concerning the Applicant and, in particular, the Applicant's service record, was communicated by the Royal Hong Kong Police to the District Attorney Prosecuting the case in the United States District Court, Southern District of New York;

(iii). The royal Hong Kong Police knew the Applicant would be giving character evidence in the United States District Court, Southern District of New York and knew in so doing the Applicant would be in breach of Regulation 3(2)(e) of the Police (Discipline) Regulations.

(b) Despite the fact that the Royal Hong Kong Police knew of the matters referred to in (iii) above, the Royal Hong Kong Police did not remind or alert the Applicant that in so giving character evidence without permission the Applicant would be in breach of Regulation 3(2)(e) of the Police (Discipline) Regulations;

(c) The information concerning the Applicant communicated by the Royal Hong Kong Police to the District Attorney was used by the same to cross-examine the Applicant. In so doing the Royal Hong Kong Police deliberately sought to provide the means whereby the District Attorney could seek to discredit the Applicant as a witness. Without the information so provided the District Attorney could not have attempted to impugne the Applicant's testimony.

(d) After the Applicant gave character evidence in the United States District Court, Southern District of New York, the Royal Hong Kong Police communicated with the District Attorney prosecuting the case and obtained a copy of the transcript of proceedings in the United States District Court, Southern District of New York.

(e) The transcript of proceedings in the United States District Court, Southern District Court of New York was obtained by the Royal Hong Kong Police but was not disclosed to the Applicant before or during the disciplinary proceedings.

(f) The Royal Hong Kong Police extracted from the transcript of proceedings a paraphrase of what the Applicant had said in his testimony which paraphrase was inaccurate and unfair, particularly in that it was taken out of context.

(g) The Applicant was deprived of the opportunity to consider the transcript and thus properly prepare his defence.

(h) The Adjudicating Officer failed properly to consider the transcript because had he done so he would or should have recognised that the bona fides of the disciplinary proceedings against the Applicant was questionable, rendering his determination unreasonable.

(f) The Applicant's conduct complained of and relied upon by the Adjudicating Officer to support his finding of conduct calculated to bring the public service into disrepute could not on any reasonable consideration be held so to do.

(g) In the premises the punishment of compulsory retirement by the Force Discipline Officer on the 29th of June 1992 was excessive and as such an unreasonable exercise of that Officer's power.

5. Mr. Sarony did however accept that when the Applicant had been served with Notice of the proceedings a statement had been included in the Notice to the effect that if he wished to have access to police records and documents he should advise the prosecuting officer accordingly and that the Applicant had not availed himself of this invitation. This being the case Mr. Sarony did not proceed with his case that there had been procedural impropriety.

6. The facts are quite simple. The Applicant had heard that one of his closest friends from his schooldays Mr. Christopher Chau who he had kept in touch with had been charged in New York with trafficking in Dangerous Drugs.

7. He had proceeded to the United States and had attended the trial. He had also gone into the witness box and given character evidence for Mr. Chau. He accepted that he had been in breach of Royal Hong Kong Police General Orders in that he had failed to obtain permission to do this.

8. The main complaint however was that by giving evidence in the way he had, he had brought the Force into disrepute. The charge and particulars are framed as follows : -

Charge (B)	Conduct calculated to bring the public service into disrepute.
	Contrary to Regulation 3(2)(m) of the Police (Discipline) Regulations, Cap. 232.
Particulars	D/Sgt 13310, AU YEUNG Kwok-hing, of the Royal Hong Kong Police Force, you are charged that on 7.8.1990 at the United States District Court, Southern District of New York, you did say in evidence that you would violate the Police General Orders in order to testify on behalf of Mr. CHAU Hung-kwan, such act being conduct calculated to bring the public service into disrepute.

9. The Royal Hong Kong Police Force had been co-operating with the United Stated and Canadian Authorities in the investigation of Mr. Chau and bringing his case to court.

10. It is clear from the transcript of the District Court proceedings that the material which was used by the Prosecutor for the cross-examination of the Applicant must have been provided by the Royal Hong Kong Police Force. It would appear from the amended grounds and from Mr. Sarony's submissions that the complaint of mala fides is largely based upon the decision made by the Royal Hong Kong Police Force not to tell the Applicant that he should not give evidence without first obtaining permission and in providing the District Attorney with material which would assist the prosecution in impugning his evidence. Mr. Sarony went on to submit that it was as a result of this and not the evidence given by the Applicant which was what had brought the Royal Hong Kong Police Force into disrepute.

11. He also contended that the Applicant's evidence to the effect that he would have given evidence for Mr. Chau even though he knew that in doing so he would be in breach of Police General Orders merely demonstrated his high sense of loyalty to a friend and could not of itself bring the Force into disrepute.

12. I must say at once that I do not accept the validity of these submissions. Indeed I would go further and state that on the basis of the material before me I do not consider that the conduct of the Police in taking the action they did can properly be the subject of criticism.

13. I do not think that it would have been proper for them to contact a defence witness and advise him that he should not give evidence unless he obtained prior permission. They had no means of knowing what evidence the Applicant may give. Certainly there was no duty imposed upon them to give the Applicant prior warning that if he gave evidence he may be in breach of Police General Orders.

14. It is necessary to consider the whole matter in its overall context. The Royal Hong Kong Police Force were assisting United States authorities with the prosecution of Mr. Chau. It would have been quite natural for them to furnish the District Attorney with material which may be of assistance in reducing the impact of the Applicant's evidence on Mr. Chau's behalf. I do not think that they can be faulted for this.

15. There is however a further dimension of the matter which needs to be considered. When the Applicant gave evidence in examination in chief he gave evidence as a Police Officer in Hong Kong with C.I.D. experience and did not say anything in his evidence to make it apparent to the Jury that his evidence was being given in a solely personal capacity. Having regard to the involvement of the Royal Hong Kong Police Force in the prosecution of Mr. Chau it is not difficult to envisage how the Applicant's conduct could have an adverse impact on the reputation of the Force as a whole.

16. The other main contention advanced by Mr. Sarony was that the penalty which had been proposed was out of all proportion to the seriousness of the case.

17. For this application to be successful it is necessary for the Disciplinary Proceedings was Wednesbury unreasonable. I do not think that the Applicant gets anywhere near establishing this. Having regard to the facts I have referred to I do not consider that it was unreasonable even in the normal sense of the word for the Adjudicating Officer to reach the Decision he did.

18. So far as the penalty is concerned I do not think that this is a matter which properly falls within the 4 corners of a Judicial Review.

19. I would respectfully adopt the reasoning of Fuad V.P. at 543 of Meng Ching-hai v. Attorney General [1991] I HKLR 535 :-

"In his reserved judgment, after setting out the factual and statutory background, the learned judge disposed of the arguments which had been addressed to him on the principle of proportionality, expressing the view that submissions based on that principle were covered by the concepts of irrationality or unreasonableness. We need say little about this, for we discern nothing in the grounds of appeal nor in the submissions made to us which challenges the judge's approach to the principle, which was to adopt the views of Lord Donaldson, M.R. in R. v. Secretary of State for the Home Department, ex parte Brind [1990] 1 All ER 469, at pp. 479-481, and of Sir William Wade in his work Administrative Law (6th ed.) p. 429: " .... and it [the principle of proportionality] would seem to be already available as inherent in the principle of reasonableness.''''

20. For the reasons I have given I dismiss this application. I will hear the parties on costs.

Representation:

Mr. Neville Sarony, Q.C. and Mr. Tommy Chung inst'd by Ng & Co. assigned by Director of Legal Aid for Applicant

Miss D. Watson of Attorney General's Chambers for Respondent