Chan Kim Hung v. Commissioner of Police

HCAL002400/2000

HCAL 2400/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2400 OF 2000

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Coram: Hon Hartmann J in Court

Date of Hearing: 9 April 2001

Date of Handing Down Judgment: 4 May 2001

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J U D G M E N T

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1. The Applicant in these proceedings for judicial review was at all material times a senior police constable in the Hong Kong Police Force. On 18 January 2000, the Applicant was found guilty of a contravention of the Police (Discipline) Regulations made under the Police Force Ordinance, Chapter 232. He was dismissed from the service. The Applicant appealed both his conviction and the sentence imposed upon him. On 26 July 2000, the appeal was considered by the Deputy Commissioner of Police (Management) who dismissed the appeal. The Applicant now seeks an order of certiorari to bring up and quash the decision of the Deputy Commissioner. He further seeks an order of mandamus remitting the matter so that the appeal may be reconsidered.

A consideration of the background

2. To enhance its operationally efficiency, the Hong Kong Police Force maintains a central data bank of information concerning persons with criminal records, persons wanted in connection with possible criminal offences or persons who are missing. This system of storing and retrieving information from a central data bank is known by the initials of its formal name as the EPONICS system. Access to this data bank is restricted and the information obtained from it is confidential. In this regard, the Police Force Procedural Manual (Chapter 44) states as follows:

"Personal data and information available from the EPONICS system is confidential, and access is restricted. Consequently the following practices are adopted:-

(a) information is provided to operational officers on a 'need to know' basis to assist the operational efficiency of the officer in carrying out constabulary functions and to ensure that the officer is aware of any particular danger that a person may present;

(b) criminal convictions will not normally be divulged to officers conducting general duties of stop & question and/or stop & search; but officers will be advised by code if a person is wanted, dangerous or missing...."

3. In the same chapter of the Procedural Manual it is pointed out that the use of information obtained thorough the EPONICS system is governed by the Personal Data (Privacy) Ordinance, Chapter 486, and that unauthorised use of such data 'will result in criminal or disciplinary action'.

4. Police orders themselves direct that information will only be obtained for authorised purposes. In this regard, it is not disputed that paragraph 6 of Part One of orders apparently known as HQO 54/96 states:

" Officers requesting information from EPONICS will only do so for authorized police purposes, in connection with authorized police investigations or procedures."

5. It should also be mentioned that officers who conduct an EPONICS check are instructed in the police manual of procedure to record that fact 'as soon as practicable' in their notebook or in the investigation file if one is being kept.

6. Despite its broad use by officers, the need for maintaining the confidentiality of information received from the EPONICS system needs no explanation. The potential seriousness of an abuse of the system; for example, by selling the information to third parties, is obvious. It appears, however that in or about late 1996 or early 1997 the police were concerned that EPONICS information was being obtained for unauthorised purposes and was being given to third parties. As a result, in conjunction with the ICAC, an undercover operation was launched.

7. In the course of that operation, an undercover ICAC officer paid a sum of money to a man known as Andy who was not himself a police officer but held out that he had contacts in the force. The money was paid to enable Andy to obtain information held by the police on a certain individual. Andy was given the name of that individual and his identity card number. The following day, the Applicant, in his capacity as a serving police officer, made an EPONICS check in respect of that same individual. He received the relevant information in the standard form. A day or two later the undercover ICAC officer came into possession of that same information in the same form via his contact, the man called Andy.

8. There was no evidence that the ICAC officer and the Applicant had ever had any direct dealings with each other. But within the relevant period of time the Applicant was the only police officer to make an EPONICS check in respect of the individual about whom the ICAC officer had sought information and that information, in the standard EPONICS form, had shortly thereafter come into possession of that ICAC officer.

9. The Applicant was subsequently charged with a contravention of Regulation 3(2)(e) of the Police (Discipline) Regulations; namely, an offence against discipline constituted by a contravention of police regulations or orders, whether verbal or written. The allegation made was that the Applicant had made the EPONICS check for an unauthorised purpose and had therefore contravened the order appearing in paragraph 6, Part One of HQO 54/96 (supra).

10. What is called a defaulter hearing then took place, the adjudicating officer being a superintendant of police. The Applicant was represented by an inspector. It was the Applicant's defence that while on leave he had received information concerning the intended theft of some barges. He said that the person who gave him this information requested an informer's fee and supplied him with the name and identity card number of the person who was allegedly behind the intended theft. After his return to work, the Applicant said that he made an EPONICS check on the person whose name and identity card number had been given to him by his informer. It was, of course, the same name and number as the person in respect of whom the undercover ICAC officer had sought information.

11. There would, of course, be no reason for the Applicant to supply his informer with the EPONICS information and he said he did not do so. Instead he attached it to a police document known as a Pol 155, placing both papers into a miscellaneous file intended to hold such documents. A later check failed to locate either the Pol 155 or the attached EPONICS information.

12. As to the investigation of the information concerning the possible theft of barges, the Applicant testified that he raised the matter with his inspector who expressed disinterest and said that he was too busy to deal with it at that time. As a consequence, there was no investigation. This version of events was denied by the inspector. No such report, he said, had been made to him by the Applicant.

13. The adjudicating officer in his statement of findings rejected the Applicant's version of what had happened. He was satisfied that the Applicant had concocted an account to try and explain an unauthorised EPONICS check. The adjudicating officer concluded by saying:

"I am satisfied that the Prosecution has proved it's case beyond reasonable doubt and I find the Defaulter [the Applicant] guilty of the charge."

The Applicant's challenges

14. In his notice of application for leave to apply for judicial review, the Applicant challenged the Deputy Commissioner's decision to dismiss both the appeal against conviction and sentence. In respect of the conviction, in summary, the Applicant contended that the Deputy Commissioner -

"(a) Failed to take into account relevant facts, namely the defects apparent in the Adjudicating Officer's judgment;

(b) Having found that there was some degree of doubt that the EPONICS check was made for an unauthorized purpose, unreasonably failed to give the Applicant the benefit of that doubt;

(c) Came to a finding of fact, namely that the ICAC operative's evidence was relevant to the purpose of the EPONICS checks, contrary to the findings of the Adjudicating Officer, and then used it to support the conviction of the Applicant without giving the Applicant an opportunity to be heard on this new finding."

15. In respect of sentence, the Applicant contended that the Deputy Commissioner -

"(a) Took into account an irrelevant matter, namely his suspicion that the Applicant had been responsible for supplying the information to the ICAC operative.

(b) Failed to take into account relevant matters, namely the long service and prior good conduct of the Applicant."

The manner in which the court exercises its supervisory jurisdiction in matters of this kind

16. In judicial review proceedings it has long been a fundamental principle that the court does not act as a general court of appeal; the court is concerned not so much with the wisdom of a decision but with the decision-making process. As Lord Brightman said in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 (at page 1173):

"Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power... Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made."

17. In reviewing the decision-making process, the court will have due regard to the nature of the body entrusted with the process. In the present case, the proceedings in question were internal police disciplinary proceedings, they were not criminal proceedings constrained as they are by formal rules of evidence. Both the adjudicating officer and the Deputy Commissioner were police officers but there is no suggestion that either were obliged to be professionally qualified in the law. As such, as I have said in an earlier judgment (So Chung v. Commissioner of Correctional Services HCAL 2438/2000, at page 16), the essential question for the Deputy Commissioner, in acting as an appellate authority, was whether he could be sure that, in his conduct of the defaulter hearing, the adjudicating officer had both procedurally and substantively acted fairly.

18. It is not therefore the role of the court in exercising its supervisory jurisdiction to be drawn into a study of the minutiae of the evidence presented and the findings made. As was said in Tong Pon Wah v. Hong Kong Society of Accountants [1998] 2 HKLRD 927 by Godfrey JA (at page 440):

" Every professional body is entitled to apply its own professional judgment to a case in which one of its members is called on to justify his conduct in (allegedly) failing to observe a standard or guideline laid down by that professional body for the protection of those dealing with members of that professional body. It is not, in my judgment, for this court to second-guess the professional judgment of a disciplinary committee such as this except where it can be seen that it has plainly misread the evidence and come to a conclusion which is contrary to the evidence or is otherwise plainly wrong."

19. In the same case, Liu JA observed:

" It must be recognised that over-legalising informal disciplinary proceedings is undesirable. Most disciplinary tribunals are presided over by men or women with no legal qualifications. Even solicitors chairing the Law Society disciplinary committee hearings are no professional judges. I do not doubt that they are able to and can return correct verdicts, but these proceedings are often distressfully flawed in the courts by a fault-finding expedition in which non-professional judges are clearly more vulnerable."

20. The principles to which I have made reference apply equally to the exercise of a disciplinary tribunal's discretion in deciding upon an appropriate penalty as they do to its decision-making in respect of culpability. In Au Yeung Kwok Hing v. Attorney General Civil Appeal 205 of 1994 Bokhary JA (in giving a majority judgment) said:

"How this appeal might be determined if one were to proceed on the basis of sympathy for the appellant is irrelevant. Sympathy is not the test. Responsibility for discipline in the police rests with the Commissioner of Police. His duty is to the public. And so is the duty of the courts.

A disciplinary offence has been committed. The person responsible for discipline has imposed punishment. He had done so within the range of his sentencing options. And he has not made any procedural error. Still the courts are asked to intervene to reduce the punishment. But the courts are not exercising appellate jurisdiction. They are exercising jurisdiction by way of judicial review. All of that being so, the courts will only intervene if the punishment is severe beyond any rational relationship to the seriousness of the offence and the situation of the offender." [My emphasis]

21. In the same case, Nazareth VP expressed the principles in the following terms:

"It is helpful to have regard to some of the considerations which have led to the well-established nature of the court's limited supervisory jurisdiction in judicial review. It is to the Commissioner and his officers that the determination and punishment of disciplinary charges have been entrusted by the legislation, and not the courts. And in discharging that function, the former are entitled, and must be presumed to have been expected, if not required, to bring to bear their knowledge and experience of the requirements and operations of the Police Force; and likewise to assess awards in the light shed by the nature and circumstances of the misconduct upon the desirability and appropriateness of the offending officer remaining in the Force. It is true that the award is severe. That does not make it irrational." [My emphasis]

22. That the courts will not lightly interfere with sentences imposed by professional disciplinary tribunals was stated in McCoan v. General Medical Council [1964] 1 WLR 1107 (at 1113) in which it was said that:

"In cases of professional misconduct... it would require a very strong case to interfere with sentence ... because the disciplinary committee are the best possible people for weighing the seriousness of the professional misconduct."

The first challenge - an alleged failure by the Deputy Commissioner to take account of defects in the statement of findings

(a) Reversal of the burden of proof.

23. On behalf of the Applicant, Mr Dunn submitted that the adjudicating officer 'appeared' to be under the impression that the burden of proof was not on the prosecution to prove that the Applicant had made an unauthorised EPONICS check but rested rather on the Applicant to disprove that allegation.

24. I have already quoted the adjudicating officers concluding statement that he was satisfied that the prosecution had proved its case beyond a reasonable doubt. That is a correct statement of where the burden lies. The issue, however, is whether in practice the adjudicating officer applied that principle.

25. I have read the findings of the adjudicating officer and, with respect to the thoroughness of Mr Dunn's submissions, I can find no suggestion in them that the adjudicating officer in any way reversed the burden of proof. It is true that the adjudicating officer spent some considerable time analysing the defence case. But many cases, because of the nature of the evidence, demand that approach.

26. The prosecution case was fairly straightforward. It did not require exhaustive analysis. Frankly, the case - although based essentially on circumstantial evidence - was a strong one. The Applicant had been the only officer in the police force, within the relevant time frame, to make an EPONICS check in respect of the person whose details had been sought by the ICAC undercover officer. Other than a 'one line entry' in the Occurrence Book which records - "DPC 16720 check I/D G218844(8)" - there was no further evidence of that check. The form called the Pol 155, to which the EPONICS information had apparently been attached, could not be found nor could the information itself. As the adjudicating officer said: "there is no Pol 155, no IRF, no memo, no notebook entry".

27. The Applicant testified that he had made a report to his inspector about the EPONICS check. His inspector, however, whom the adjudicating officer found to be a 'rational and convincing witness', denied any such report.

28. This being the case, it seems to me that, in fairness, the adjudicating officer was forced to closely examine the Applicant's evidence to see whether, in the face of apparently forceful prosecution evidence, it raised a reasonable doubt in his mind.

29. Mr Dunn focused on paragraph 32 of the statement of findings as being indicative of the alleged reversal of the burden of proof. That paragraph reads:

"Suffice to say, The Defaulter's evidence was totally unconvincing and on occasion verged on the incredulous and I am obliged to reject it in it's entirety. The Defaulter should be an experienced Detective, serving in a Regional Crime Unit. The procedures, practices and know-how are not new to him. His evidence would suggest otherwise. I am convinced the Defaulter was not authorised in any capacity to conduct this EPONICS enquiry. At it's best, the Defence case was very weak."

30. All I take from that paragraph is a rejection of the Applicant's defence; in short, the implied statement by the adjudicating officer that it did not raise a reasonable doubt in his mind. I am at a loss to find any suggestion here of the reversal of the burden of proof. In my view, the adjudicating officer was quite entitled, in rejecting the defence, to take account of the fact that the Applicant was an experienced officer who must have been aware of relevant procedures and practices but who appears to have contrived to ignore virtually all of them.

(b) The drawing of unfair inferences against the Applicant.

31. Mr Dunn suggests that a number of unfair inferences were drawn against the Applicant. By use of the word 'unfair' I take him to mean inferences which had no permissible basis in fact.

32. Mr Dunn suggests that an improper inference was drawn by the adjudicating officer in paragraph 9 of his statement of findings which reads:

"D/Sgt 1058 was the Defaulter's immediate supervisory officer. [He] had been on leave at the material time and did not assist the Prosecution case much other than to outline the rather loose EPONICs checking procedures and the manner in which crime information was submitted. When I say procedures, these were in effect the usual and accepted practice. It is significant that he states that he had not been informed of any information concerning barge stealing in early 1997, although he was on leave at this time." [My emphasis]

33. As I read the paragraph, the adjudicating officer acknowledged that the Applicant's immediate superior (and presumably the one to whom he would report matters of note) was on leave at the time. But nevertheless, he found it significant that the Applicant did not at any time acquaint him with the important information he had received concerning the stealing (or intended stealing) of barges. Clearly, the adjudicating officer found this failure at any time to report to the Detective Sergeant significant in that it formed part of a broader picture of general ignorance on the part of other team members. As a professional police officer, the adjudicating officer would have experience of how, in genuine cases, information would invariably be disseminated. That he found there to have been no dissemination of any kind in this case would be a matter, I believe, of which he could legitimately take note.

34. Mr Dunn says that, importantly, the adjudicating officer drew inferences from the almost total lack of available documentation to support the Applicant's story. In particular, said Mr Dunn, the adjudicating officer was critical of the Applicant's failure to make a notebook entry. But this was in face of the fact that none of the other team members were aware that a notebook entry was even required in such circumstances. How, therefore, was it possible to draw an adverse inference against the Applicant for not making a notebook entry when none of the team seemed to think it was required?

35. But, with respect to Mr Dunn, that contention, I believe, takes the matter out of context. The adjudicating officer said the following in paragraph 29 in respect of the Applicant's failure to make a notebook entry:

"I have examined the Defaulter's notebook and found it contained all sorts of entries relating to meal times, interviews, enquiries etc. but he chooses to omit what is perhaps the most significant work related matter that has occurred. He is given Crime information concerning a Wanted Person and the Informant/Informer is seeking a HK$20,000 reward or "fee". The fact the subject is Wanted by the Narcotics Bureau for DD Trafficking should have made the case all the more significant."

36. In short, as I read it, the adjudicating officer was making his findings based not on the need generally to record the receipt of informer information but on the fact that the particular circumstances of this case would surely have indicated the need for some sort of entry. What is also pertinent, in my view, is that the adjudicating officer directly linked the failure on the part of the Applicant to make (and secure) documentary records with the failure of the Applicant's team members to recall anything of the matter. In this regard, the adjudicating officer continued directly in paragraph 29 with the following sentence:

"However, none of the Defaulter's Supervisory officers can recall any mention of this information on barge stealing. PW6 [the team inspector] in his evidence was absolutely certain of this."

37. Accordingly, read in context, the adjudicating officer drew an inference not simply from the absence of a notebook entry but from the general absence of documentary evidence coupled with the absence of any evidence that the Applicant had informed his team members of the information that had, he said, come into his possession. In my view, that general absence is a matter from which a legitimate inference could be drawn.

38. Having considered the various matters drawn to my attention by Mr Dunn, I am satisfied that no unfair or improper inferences were drawn against the Applicant, certainly not of the kind that the Deputy Commissioner should have identified as constituting a material unfairness.

The second challenge - the finding of the adjudicating officer that there was a degree of doubt that the EPONICS check was made for an unauthorised purpose

39. This challenge appears to arise from paragraph 26 of the adjudicating officer's statement of findings, the suggestion, as I comprehend it, being that the adjudicating officer in this paragraph acknowledged that the Applicant may have made the EPONICS check in good faith and therefore in the belief that it was furthering genuine police enquiries. Paragraph 26 reads:

"If I were to accept the Defaulter's evidence as to how he received the information regarding barge stealing and then conducted an EPONICS check in the circumstances he has described in his evidence, I could not close my eyes to the possibility he has been duped into conducting the EPONICS check. That is he has been furnished the information and he has, in good faith, conducted an EPONICS check. Somehow, the results of that EPONICS check are photocopied and end up being given to the ICAC undercover officer. There is the possibility of this occurring as we have head that the EPONICS check Pol. 155's and, in this case, the EPONICS record were left in a file on a desk in the RCU office. Anyone could have had access to it. I therefore have sought to distance the Defaulter from the supply of the EPONICS record to the ICAC officer and I stress that there is no evidence to show he had any direct role in the supply of this record. I therefore stated previously that the part of evidence of the ICAC officer that Mr YUNG objected to, serves neither Prosecution or Defaulter."

40. I confess that this is not the easiest of paragraphs to comprehend. But, when read in the context of the statement of findings as a whole, I do not see how it can be interpreted to mean that the adjudicating officer is here accepting that the Applicant may reasonably have made the EPONICS check in good faith.

41. First, the paragraph begins with a proviso; namely, that if the adjudicating officer was to accept the Applicant's evidence then he could not close his eyes to the fact that the Applicant had somehow been duped into obtaining the information. But, of course, as is made manifest elsewhere in the statement of findings, the adjudicating officer did not accept the Applicant's version of events. Indeed, he rejected it as a concoction, a finding of fact well within his mandate.

42. Second, on the basis that he does not accept the Applicant's version of events, the adjudicating officer does not consider in any detail how, in particular terms, the Applicant could have been duped. He glosses over this potentially critical area because, in rejecting the Applicant's version of events, it has no relevance. In this regard all he says is: "Somehow, the results of that EPONICS check are photocopied and end up being given to the ICAC undercover officer". In fact, if the Applicant's version had been given any credence by the adjudicating officer, he would then have been faced with a host of improbabilities. The surface need only be scratched to illustrate the point. If the Applicant had been duped then the source of that deceit must have been his informer for he was the one who gave the Applicant the particulars sought by the ICAC undercover officer. But how would the informer get into the police offices to photostat the EPONICS information? That would not be feasible. There would therefore have to be another officer involved, one sufficiently close to the Applicant to have access to his documentary records. Somehow, that other officer and the informer must have worked together. But that other officer would surely not remove the Pol 155 form with the EPONICS information attached to it. That other officer would assume that the false information fed to the Applicant would be actively investigated. So how therefore was that documentation mislaid?

43. In my judgment, it is clear that in paragraph 26 the adjudicating officer was attempting to do no more than avoid the need to make a thorough analysis of the host of matters to which I have just made passing reference. The adjudicating officer recognised that there was no direct link between the Applicant and the ICAC undercover officer. He therefore chose not to search for one by inference. He restricted himself instead to the single issue contained in the charge: did the Applicant make an unauthorised EPONICS check? If that was proved, that was enough. The adjudicating officer did not believe it was necessary to make an additional finding of fact as to the purpose for that unauthorised check.

44. In my judgment, the matters to which I have referred explain the essential meaning and intent of paragraph 26. That essential meaning and intent does not contain (either directly or by inference) any acceptance that the Applicant may, in fact, have acted as an innocent dupe and may therefore have made the EPONICS check in good faith.

The third challenge - the finding of the Deputy commissioner that the ICAC officer's evidence was relevant to indicate the true purpose of the unauthorised EPONICS check

45. On behalf of the Applicant, Mr Dunn noted that, in accordance with normal procedure, the Deputy Commissioner had been assisted in deciding the Applicant's appeal by being able to consider the contents of what is called a staffing note. That staffing note began by stating the following:

"Upon an appeal against conviction, it is incumbent upon the appellate authority to review all pertinent analyses, interpretation, judgements, etc, made by the AO [the Adjudicating Officer] in coming to his final verdict, in particular those relevant to the stated grounds of appeal. In this light, the decision by the AO to exclude the evidence of the ICAC agent in those parts relating to his procurement of the EPONICS copy for a fee is worth re-examining. Despite finding appellant guilty at the end, the AO in paragraph (9) and (30) of his judgement:

(a) saw no direct link between the Appellant and the hardcopy of EPONICS that the ICAC agent obtained; and furthermore

(b) could not dispel the possibility that Appellant might have been duped into making a bona fide EPONICS check with a photocopy dishonestly passed to the ICAC agent without Appellant's knowledge."

46. For the reasons already given, I am satisfied that subparagarph (b) was not an accurate interpretation of what the Adjudicating Officer had, in fact, said. The statement of findings was a detailed, carefully compiled document and it is apparent from the manner of approach of the adjudicating officer that, if he had found that the Applicant may have been an innocent dupe, he would have given the Applicant the benefit of that doubt.

47. It was on the mistaken reading of paragraph 26 that the author of the staffing note then proceeded to examine in detail what, the author called 'the trick theory'. In the result, it was suggested that a study of all the evidence disproved any suggestion that the Applicant may have been innocently duped. This led to the following advice being tendered in the staffing note:

"At the time Appellant was checking the EPONICS on the wanted person, he either knew a buyer was waiting at the other end, or was reckless as to who was to get it. This is the only inference that can be reasonably drawn. The excuse he offered was fanciful, totally uncorroborated, and contradicted his S/Sgt and OC who had no visible reason to collude together against him. AO certainly found it a lie. Taking the evidence in its totality, all elements of the Charge have been proven beyond reasonable doubt. This has been arrived at entirely on evidence already adduced in the hearing with no hearsay or new material."

48. Mr Dunn complained that this 're-formulation' of the evidence amounted to 'overruling' the adjudicating officer who had heard all the evidence and resulted in making the moral culpability of the Applicant that much graver. But this 're-formulation', he said, was done after the Applicant had lodged his appeal and without reference to him. He was, therefore, given no opportunity even to make representations: evidence of procedural irregularity or unfairness of a material nature. The advice in the staffing note, argued Mr Dunn, even though it was advice only and not in any way binding, clearly did have some influence. In this regard, he referred to the ruling of the Deputy Commissioner which was as follows:

"I have considered the appeal very carefully and read all the papers relevant to the appeal. The defaulter was found guilty of one count of "Contravention of Police Orders" relating to an unauthorized EPONICS check. I am satisfied that the evidence presented during the proceedings strongly supports the finding of guilty. In his judgement, the AO critically analysed the evidence presented to him and believed that the story given by the defence had been concocted to account for an unauthorized EPONICS check. Having read all the relevant evidence, I concur with the AO's view.

As for the purpose of the EPONICS check, PW1's (ICAC agent) evidence is relevant. Despite the absence of a direct link of PW1's evidence to the defaulter's actions, the circumstances of the check offer little doubt that it was not made for an authorized police purpose. The request for the EPONICS check was very specific and it was conducted by the defaulter on day after the request had been made by PW1 ...

I am satisfied that the finding of guilty is soundly based and that there is nothing in the appeal which would warrant an overturn of this decision." [My emphasis]

49. In light of the Deputy Commissioner's reasons, Mr Dunn defined his complaint in the following terms:

"...if the Deputy Commissioner concluded that the case was far more serious than the Adjudicating Officer had found, then in fairness the Applicant should have been told, and should have been allowed to make further representations. It was quite improper that the findings of the Adjudicating Officer should be rehashed and altered without the Applicant being made aware that the case against him was being secretly turned into a much more serious offence than the one he had been convicted of."

50. The Police (Discipline) Regulations, however, do give the Deputy Commissioner, sitting as an appellate authority, a broad power to make findings on the evidence adduced at the defaulter hearing. The Deputy Commissioner is not bound by (or confined to) the factual findings of the adjudicating officer. In this regard, Regulation 15 reads:

" (1) A junior police officer may within 14 days of the announcement to him by, or, as the case may be, the receipt of a communication from, the Force Discipline Officer of any finding, decision or punishment, appeal in writing to the Commissioner by petition which shall contain such representations as may be relevant to the appeal.

(2) Upon an appeal under this regulation the Commissioner may -

(a) vary any finding and substitute any finding which he could have made on the evidence adduced; or

(b) order a rehearing of the case on the same or other charges by another appropriate tribunal; or

(c) substitute any other punishment that he is empowered to award." [My emphasis]

51. Should he wish, the Deputy Commissioner may receive oral representations from an appellant or hear additional evidence. Regulation 15(3) reads:

"Upon an appeal under this regulation the Commissioner -

(a) may permit the defaulter to appear before him in person to support his appeal;

(b) subject to these regulations, may hear such additional evidence as he considers relevant; and

(c) subject to these regulations, shall announce personally or communicate in writing to the defaulter the outcome of the appeal or the action taken under this regulation."

52. It is apparent that, in deciding the appeal, the Deputy Commissioner did not have recourse to new or additional evidence. With reference to the advice contained in the staffing note, he did no more than form a different view of the evidence adduced at the defaulter hearing. In terms of Regulation 15(2)(a), I am satisfied that he was entitled to do so. If he wished, the Deputy commissioner could have given the Applicant an opportunity to appear to make oral representations. He did not chose to do so. The only question, therefore, is whether, in all the circumstances, the Deputy Commissioner in considering taking a different view of the evidence, one that may well have increased a perception of moral blameworthiness, was obliged, before coming to a final decision, to give the Applicant an opportunity to make oral or written representations.

53. As I have said, Regulation 15 vests the Deputy Commissioner with a broad discretion. When he comes to decide an appeal, he will have before him the petition of the appellant and the staffing note. Those documents may concur but they may also advocate opposing viewpoints of the evidence given at the defaulter hearing. The Deputy Commissioner is not entitled to take cognizance of any new or additional evidence that comes to him other than in terms of the Regulations. But he is clearly entitled to form his own view of the existing evidence even though it may be a view which contradicts that of the adjudicating officer. In short, the Deputy Commissioner has a discretion to form a view of the evidence that is independent of the view formed by the adjudicating officer. There may, of course, be occasions when the Deputy Commissioner believes that, to resolve his difficulties, he needs to hear fresh evidence or representations from an appellant. He will exercise his discretion if fairness demands it. In my view, it would be wrong to impose any rule of procedure to the effect that, if the Deputy Commissioner contemplates an independent view of the evidence which may tell against an appellant, then he must first hear from that appellant.

54. It must be remembered that an appellant submits his petition in the knowledge that the Deputy Commissioner has the power to form an independent view of the evidence; that indeed may well be exactly what the appellant seeks. The appellant's petition is (or should be) drafted in contemplation of the exercise of that broad discretion. That being the case, I do not see that an appellant can complain when the discretion is exercised in an adverse manner, not unless there is shown to be a material procedural irregularity or a situation in which fairness manifestly demands an opportunity first to make further representations.

55. In the present case, I am satisfied that fairness did not demand that the Deputy Commissioner should, before coming to a view, have allowed the Applicant to make further representations. He simply took a view that the ICAC officer's evidence was not neutral. In my judgment, it was entirely rational to do so. There was a great deal of primary evidence available upon which inferences of a 'link' between the undercover officer and the Applicant could be drawn even if they had never met or known of each other's existence. It was a view of the evidence that could upon analysis, but without difficulty, have been reached.

56. In any event, even if I am wrong in this regard, I do not see how representations by the Applicant could have changed the result. The evidence had been presented, the Applicant had testified. In addition, his petition on appeal had been drawn with legal assistance. A procedural irregularity, for it to bring about the quashing of a decision, must be such that, if it had not taken place, the decision may have been different. The principle was stated by Bingham LJ in R v. Chief Constable of the Thames Valley Police ex parte Cotton [1990] 1 RLR 344 (page 351):

"I would readily accept the view expressed by Lord Denning MR and Cumming-Bruce LJ in George v Secretary of State for the Environment [1979] 77 LGR 689 at pp. 695 and 699 that there can be no such thing as a technical breach of natural justice. That is because, to my mind, a procedure must in all the circumstances of a given case be either fair or unfair. Since (always assuming the absence of a prescribed statutory procedure) the court is concerned with matters of substance and not mere form, a procedure cannot be unfair in a purely technical sense. There is no third category embracing procedures which are unfair to the subject of the decision as a matter of technicality but not substance.

Judges of high authority have held that the subject of a decision who has been denied a right to be heard cannot complain of a breach of natural justice (or unfairness) unless he can show that the decision might have been different if he had been heard. In Malloch v Aberdeen Corporation [1971] 1 WLR 1579 at p. 1595 Lord Wilberforce said:

'The particular principle of administrative law to which he appeals is that, before his dismissal became effective, he ought to have been given an opportunity of making written representations to or being heard by the education authority. He had asked for this opportunity, and it is admitted that it was refused by the respondents.

'The appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.'"

The challenges concerning penalty

57. In respect of the penalty of dismissal from the service imposed upon the Applicant, Mr Dunn contended that the Deputy Commissioner had been responsible for two errors. First, he had taken into account an irrelevant matter; namely, the 'suspicion' that the Applicant had supplied the EPONICS information to the ICAC undercover officer. Second, he had failed to take into account a relevant matter; namely, the long service and prior good conduct of the Applicant.

58. I do not believe that there is force in either of these challenges. As to the Applicant's long service and previous good conduct, this was brought specifically to the attention of the Deputy Commissioner. For example, the staffing note makes mention of the Applicant's family circumstances and his 'unmarked service of 25 years' but then goes on to say:

"... it is felt that the EPONICS system is far too important a tool to be tampered with. Public confidence in the Force is at stake. A benchmark with deterrent effect to others needs to be set. Dismissal is therefore necessary and appropriate."

59. The advice to the Deputy Commissioner was robust. But it was advice only. It was open to the Deputy Commissioner to place greater emphasise on the Applicant's personal circumstances if he thought it proper to do so.

60. As for the suggestion that the Deputy Commissioner took into account the 'suspicion' that the Applicant had supplied the information from the EPONICS check to the ICAC undercover officer, there are no grounds for such a suggestion. The Deputy Commissioner did not impose a penalty on the basis of suspicion. He was, however, entitled to find that, at the least, the Applicant, in obtaining the unauthorised information, was reckless on to how it would be used. Unauthorised information of this kind is invariably obtained for a purpose: it would be artificial to think otherwise. Turning a blind eye to that purpose or simply acting as one step in the process without knowledge of that purpose does not alter the essential recklessness. Nor was there any suggestion of a purpose that may by its nature have revealed a lesser degree of culpability; for example, a concerned father checking on the background of a daughter's new paramour.

Conclusion

61. In the event, I am satisfied that there are no grounds sufficient to impeach the decision-making process of the Deputy Commissioner or indeed the substantive decisions made by him. The applications to quash his decisions are therefore dismissed.

62. There will be a costs order nisi that the Applicant shall pay the Respondent's costs, such costs to be taxed if not agreed. Should neither party apply within 30 days of the date of handing down this judgment for a different costs order, this order shall become final.

Representation:

Mr John Dunn, instructed by Francis Kong & Co., for the Applicant

Mr Anthony Ismail, instructed by the Department of Justice, for the Respondent