The Queen v. The Commissioner of Correctional Services and Another

HCMP000134/1989

M.P. No. 134 of 1989

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Liu J. in Court

Date of hearing: 4th & 8th April 1989

Date of delivery of judgment: 15th May 1989

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J U D G M E N T

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1. Mok Yee-man was sent to the Tai Tam Cap Correctional Institution for robbery. On the 25th flay 1968, she was released under supervision for three years' aftercare. In the initial period of her supervision, Mok was accommodated in Bauhinia House, Arbouthnot Road. During that period, the applicant, Leung Chin-keung, escorted Mok on three Saturdays in less than a month, possibly on the 11th June, then on the 25th June and 2nd July all in 1988. The applicant was at the time Acting Superintendant of the Cape Collinson Correctional Institution. I shall call if "CCCI". On information, the Correctional Services Department intervened and their liaison was disrupted after the last Saturday's dating on the 2nd July.

2. The applicant was charged with an offence against discipline, namely, without proper authority, he so communicated with an ex-inmate Mok contrary to Prison Rule 239(1)(h)(i). The applicant admitted the outings he had on Saturdays with Mok, but he denied knowing Mok as an ex-inmate of the Tai Tam Gap Correctional Institution. I shall call it "TGCI".

3. On the 21st October 1988, he was found guilty by the Adjudicating Officer, Senior Superintendant Nilsson. The Adjudicating Officer considered the disciplinary offence as a serious one and referred the case to the Commissioner for award. In such a reference, the Commissioner is required by law to consider the evidence and if the evidence does not, in his opinion, reveal the commission of a disciplinary offence, the Commissioner is duty bound to dismiss the charge. On the other hand, if in his opinion, the evidence shows that the disciplinary offence has been committed then the Commissioner could either award a punishment or refer the case to the Governor. But in the meantime, on the 12th November 1988, the applicant appealed against the finding of the Adjudicating Officer on grounds similar to his complaints made in this Motion. The appeal to the Commissioner was a paper appeal without a hearing. Expansive written arguments were submitted. It was dismissed on the 4th January 1989.Thereupon, the Commissioner referred the mater to the Governor for punishment.

4. Pursuant to leave granted, the applicant now moves this Court for judicial review of the finding of the Adjudicating Officer.

5. In Prison Rule 239, the designated disciplinary offences are widely ranged some with serious repercussions. Proceedings for dealing with these disciplinary offences are adversarial and not inquisitorial in nature. They bear no resemblance to proceedings in a public enquiry or an inquest. The proceeding's s are for the adjudication of a disciplinary charge laid. To a degree, the procedure prescribed by the Prison Rules is analogous to that for dispensing criminal justice.

6. Under the Prison Rules, a charge has to be formulated and entered on a charge sheet. In the charge sheet, particulars are to be given. A list of witnesses whom it is proposed to call and any written statements which it is proposed to produce in support of the charge must be shown to the person charged. These written statements proposed to be adduced should be initialled by him after his perusal and the person charged is entitled to copies of these statements. The Adjudicating Officer is obliged to arrange for the attendance and calling of these witnesses.

7. On the other hand, not only do the Prison Rules envisage the admission of statements, they call upon the person charged to disclose the names of his own witnesses. These and others are significant departures from the general rules in criminal justice.

8. There are three sets of guidelines in circulation within the Correctional Services Department. They have no statutory or regulatory effect. They are : "Guide to Disciplinary Proceedings (Staff) : The Duties/Role of Prosecuting Officer" ,  "Procedure for Disciplinary Proceedings against Staff" and "Procedure for the Conduct of a Disciplinary Hearing". The last mentioned circulation is primarily concerned with the hearing of charges against an inmate, but some provisions in its Annex C "Notes on General Issues of Disciplinary Proceedings" would seem to apply also to the hearing of a charge against staff.

9. Paragraph 4.1.5 of the "Guide to Disciplinary Proceedings (Staff) : The Duties/Role of Prosecuting Officer" admits any voluntary statement of a person charged whether or not it is a confession, provided that it is produced by the person taking it. Paragraph 4.1.4 echoes Prison Rule 243(3)(a) in, allowing written statements of witnesses to be adduced in support of the charge. Paragraph 4.1.5 reads : "Statements are not generally admissible in evidence unless taken on oath and therefore should not be used to prove a charge". That is an imprecise observation : in a trial, a written statement is generally inadmissible, whether or not it is sworn, and testimony in Court is customarily receivable only under oath. However, counsel for the respondent seemed content to accept that in the adjudication of a disciplinary offence, the unsworn written statement of a witness including hearsay, though adducible "in support of a charge, could not, by itself be used to prove it. That proposition finds no real support in the rationale suggested by paragraph 4.1.5, that is to say, some parallel may be drawn from the fact that evidence led in court, as opposed to that adduced in a disciplinary proceeding, enjoys the sanction of an oath. The Prison Rules and the Departmental Circulations is no sound basis for the suggestion that unsworn evidence or witness statement "should not be used to prove a charge" in disciplinary proceedings. As a matter of fact, the records of adjudication do not show that any of the witnesses before the Adjudicating Officer was ever put on oath or affirmation or even reminded of their duty to tell the truth. Nevertheless, I take note of the concession made by counsel for the respondent and act on it. I would therefore proceed on the assumed basis that unsworn witness statements including hearsay could not, by itself, prove the charge. I return then to the other features special to the procedure in disciplinary proceedings : there is to be no re-examination of witnesses at all from either side. See paragraph 4.2.6(iii) and paragraph 4.2.8(iii). The person charged cannot himself be cross-examined. See paragraph 4.2.10. The person charged may simply produce a statement without having to give oral evidence thus exposing his demeanour to scrutiny. In this case, the officer charged did not even tender his own statement. The applicant merely made a final submission as a "prepared" defence, and he submitted "further information to supplement his defence" eight days later. That was, of course, permissible.

10. In the Departmental Circulation "Procedure for Disciplinary Proceedings Against Staff", paragraph 2 specifically affirms "the fact that a disciplinary hearing need not observe all the technical rules of evidence which are applicable to court proceedings". In note (a) to paragraph 9(ii), it is advised that irrelevant questions may be asked by the officer charged in cross-examination. In the following "Explanatory Notes on the Procedure at Hearing of a Disciplinary Charge", note 8(a) permits a person charged to simply make a statement in his defence. It is, not stipulated that any statement he chooses to submit must be made on oath or even tendered in person.

11. The conduct of these disciplinary proceedings is therefore to be regulated by practice and procedure quite dissimilar to those followed in a criminal triail. Court procedures are often in stark contrast to administrative procedures. In the resolution of disputes administrative procedures are tailored for the special setting, and decisions of lay tribunals are reached by methods which can be respected. In reviewing the not too well defined administrative procedures the courts are inclined to apply a standard of fairness. What are fair procedures will vary in different contexts according to the nature of the issues being addressed, the seriousness of the reviewable complaint and the overall scenario. It is a balancing act performed in quest of the golden mean between prejudice and expectation on one hand and financial and practical constraints on the other. But mere administrative difficulties, simpliciter, are not ..... enough. Convenience and justice are often not on speaking terms". It is conceptually wrong to suggest that procedural fairness need not be observed in a domestic tribunal, being the master of its own procedure. The rules of natural justice are a compendious reference to those rules of procedure which the common law requiries persons who exercise quasi-judicial functions to observe ...... Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances".R. v. Board of Visitors of Hull Prison, Ex parte St. Germain Others (No. 2) [1979]l W.L.R. 1401 at p. 1406 Letter G and p. 1408 Letters F & G. After all, "the rules of natural justice" is an esoteric term for describing the duty to act fairly - the procedural fairness.

12. These Departmental Circulations said to have created a right within the legitimate expectation of the applicant, call for a prior disclosure of defence witnesses, eliminate all re-examination, prohibits cross-examination of the person charged and dispense with his oral evidence. But the Adjudicating Officer must still act fairly within these lax confines and the divergences from the norms of criminal justice.

13. These Departmental Circulations also encapsulate the wider latitude allowed to a domestic tribunal in its erosion of the technical rules of evidence and admission of hearsay. Nevertheless, the Adjudicating Officer's extended power to have regard to less formal information is always "subject to the overriding obligation to provide the accused with a fair hearing" on the facts of a particular case. R.v. Hull Visitors, supra. p. 1409 Letter D. It is only right that the duty to act fairly is not to be impaired by a release from the strict observance of the technical rules of evidence. The technical rules of evidence "form no part of the rules of natural justice". R. V. Deputy Industrial Injuries Commissioner, Ex parte Moore, [1965]1 Q.B. 456 at p. 488 per Diplock L.J. But as I have said, the rules of natural justice may nevertheless be breached in a tribunal which is unfettered by the technical rules of  evidence.

14. These Departmental Circulations, embraced by both parties before me, recommend that one's own witness may not be asked leading questions or cross-examined except in the case of a hostile witness and that the Adjudicating Officer must determine whether a witness is, in fact, hostile and rule accordingly before leave granted by him for cross-examination. See paragraph 5.2.2 and paragraph 5.8.1 of "Guide to Disciplinary Proceedings (Staff) : the Duties/Role of Prosecuting Officer" note (c) to paragraph 9(i) of "Procedure for Disciplinary Proceedings against Staff"; paragraph 27 in Annex C to "Procedure for the Conduct of a Disciplinary Hearing".

15. References are also made to natural justice in these Departmental Circulation. In paragraph 6 2 of the "Guide to Disciplinary Proceedings (Staff) : the Duties/Role of Prosecuting Officer", the prosecuting officer is reminded to ensure that natural justice is done and that the person charged "should be quite satisfied that he has been fairly treated". In paragraph 3 of "Procedure for Disciplinary Proceedings against Staff", the golden rule is said to be that justice must be seen to be done.

16. The ultimate, enshrined in these Departmental Circulations, is that the Adjudicating Officer must give the person charged a fair hearing. See paragraphs 2 and 4 of "Procedure for Disciplinary Proceedings against Staff".

17. The recommended burden of proof in these Departmental Circulations is difficult to follow. In paragraph 29 of Annex C to "Procedure for the Conduct of a Disciplinary Hearing", the standard is said to be one of "beyond reasonable doubt". In the Notes under "Procedure", note (3) at the end of paragraph 7 of "Procedure for Disciplinary Proceedings against Staff", it is advised that the standard of proof "should be mid-way between proof beyond reasonable doubt and proof on balance of probabilities". In paragraph 5.3.2. of "Guide to Disciplinary Proceedings (Staff) : the Duties/Role of Prosecuting Officer", the standard of proof is pitched as high as one of "beyond reasonable doubt". But in the following paragraph 5.4.1, it is suggested that whilst the prosecution generally carries the burden of proving a case beyond reasonable doubt, the standard for disciplinary proceedings is "more or less the same as in civil case". Is it then more or is it less? It concludes that "in fact, it depends on the balance of probabilities" having regard to the seriousness of the offence.

18. These passages are not entirely free from obscurities. They must have been pieced together when the law was debatable. But it is agreed on all hands that the standard of proof should be one of balance of probabilities commensurate with the gravity of the charge.

19. Faced with these oscillating statements, the Adjudicating Officer understandably chose a much higher standard of proof, one of beyond reasonable doubt.

20. A criminal charge in civil proceedings calls for the same civil burden though the Court must be persuaded to a high degree of probability "commensurate with the" allegation; "the more serious the allegation, the higher the degree of Probability that this requires". See Bater & Bater [1951] P. 35 at p. 37, Hornal v. Neuburger Products Limited [1957]1 Q.B. 247 at 258, per Denning L.J.; R. v. Home Secretary, ex parte Khawaja, f1983]2 W.L.R. 321; Tai Hing Cotton Mill v. Liu Cheong Hing Bank Limited & Others [l984] H.K.L.R. 95 at 113, Letters C - F. The principle is now well settled.

21. The background can be shortly stated. On the 4th April 1988, the applicant then serving as Acting Superintendant of Cape Collison Correctional Institution (CCCI) attended a function at the Lai King Training Centre. It was the Easter Variety Show. There were over a hundred performers in competition from various centres and institutions. The show was video-taped. The Tai Tam Gap Correctional Institution (TGCI) sent 30 to 40 participants but only two TGCI inmates took part in the solo singing contest. Mok was one of them. She lost and she was the only one seen in tears. After the competition, a group of about ten comprising also the applicant, visited the TGCI girls in their own room. It is alleged that upon seeing Mok in distress, the applicant consoled and engaged her in a personal conversation. The applicant's presence in this room was for only two, three minutes. On two other occasions, the 30th April 1988 and the 25th May 1988, at two separate functions, it is claimed that the applicant talked to Mok giving her encouragement in her singing and general conduct. Mok's detention in TGCI was from the 21st October 1986 to the 25th May 1988. On the latter date, she was released under supervision for an after-care period of three years. She was then accommodated in Bauhinia House in Arbouthnot Road.

22. In early June 1988, after her release from TGCI, Mok telephoned the applicant. The applicant disputes that Mok was seeking to view the video tape for Easter Variety Show competition on the 4th April, which had allegedly been promised. The applicant's version is wholly different, but it is a fact that as a result of the telephone call, the applicant met Mok late in June, possibly the 11th June, a Saturday, at about 10 o'clock in the Star Ferry concourse. The applicant then took Mok by car at 10 a.m. to the Peak and later to Shek Kong and Yuen Long for meals. The applicant and Mok parted company in Yaumatei at about 6 p.m.

23. Later on another Saturday, the 25th June, that must have been a fortnight later, Mok arranged to and did meet the applicant in Yaumatei at about 6 p.m. They had coffee together and the evening ended at a MTR Station in Central about 8 p.m.

24. The next day, 26th June, Mok was emotionally upset by her boyfriend making an overture to another resident of Bauhinia House. The officer-in-charge of Bauhinia House, Miss Pansy Yu took Mok and another resident out for counselling. At about 10:30 p.m. in a taxi trip on their way to a coffee shop by the name of "Christaine Place", Mok volunteered the information that she met the applicant the day before for two, three hours. Miss Pansy Yu reported the matter to senior officers and was called to the Headquarters to give a statement four days later.

25. On the 1st July, Senior Superintendant Brooks was directed to investigate. He was assisted by Superintendant Lau and Officer Chu. Mok was kept under surveillance the next day outsider her place of work in Central. Mok was seen by Senior Superintendant Brooks, Superintendant Lau and Officer Chu leaving for and arriving at the Star Ferry concourse at about 1:20p.m. The applicant came in a car borrowed from his colleague and took Nok to Sai Kung for lunch, to Tsimshatsui for the 5:30 show and thereafter to a Tsimshatsui restaurant for dinner. Mok was taken in the same car by the applicant to Arbouthnot Road at about 9:30 p.m. and she alighted opposite Bauhinia House. On her return, Mok was immediately interrogated. She gave a statement and answered questions in another. Some two days later, Mok further explained how she came to be given the name of "Kelvin" in TGCI by the other inmates.

26. On the 4th July 1988, the applicant was interviewed and he denied he had a meeting with Mok or any female friend on the 2nd. He claimed, to have been home until about 10 p.m. The next day, he corrected his statement. He recalled his attendance at the same functions on the 4th April, the 30th April and the 25th May. The applicant denied ever having attempted to console or speak personally to Mok. He remembered one inmate sang solo and lost, but he saw no one in tears. He remembered speaking to a group of inmates from the TGCI in their own room on the 4th April after the competition. He referred to the telephone call from Mok and admitted the subsequent three meetings with her. The applicant denied that he knew the identity of Mok who was allegedly known to him simply as "Kelvin".

27. Acting Principal Officer Kung was in his company after the Easter Variety Show and Kung's evidence was that the applicant spoke only to a group of inmates from TGCI after the competition. He quoted the applicant as saying : "All of you have already done your best. Lose or win is not an important matter", shortly before he was abruptly sent out of the room by Superintendant Pauline Chan.

28. Chief officer Chung Mei-kuen of TGCI saw the applicant talk to Mok, consoling her not to be upset. Chief Officer Chung was standing next to the applicant but she kept no notes of what appeared to be nothing unusual. In addition, she was preoccupied with V.I.P. guests. In cross-examination, she conceded that she was not sure whether, in fact, the applicant spoke to Mok direct or to a group of inmates but that Mok was standing in front of the applicant. Chief Officer Chung did not herself see the applicant talking to Mok on the 30th April and the 25th May.

29. The applicant himself remembered that on an occasion subsequent to the 4th April, when he was approached by several TGCI inmates for the video tape of the competition in the Easter Variety Show, his reply was that the same had been or would be given to Chief Officer Chung.

30. On about the 11th June, Chief Officer Chung Mei-kuen of the TGCI recognised Mok in the company of another ex-inmate at the Star Ferry concourse. Mok's hair was shorter and she had on a pair of sun-glasses. But Chief Officer Chung was an TGCI officer.

31. The applicant's version of the relationship is : some time in June, a girl telephoned claiming to be a friend of his, returning from overseas and wanting to surprise him. There was no mention of any video tape. The girl refused to identify herself but would like to see him. The applicant claimed that he agreed to it out of curiosity. When he kept the pre-arranged meeting at the Star Ferry concourse, a girl whom he had no recollection of approached him. The girl called him by his full name, introducing herself as "Kelvin". The girl claimed to have met the applicant a few months before in a disco. He explained that he let Mok into his car "because she could call my name and she was a girl" and "that began our friendship". He admitted meeting Kelvin on t subsequent Saturdays, the last of which was the 2nd of July. He had never been given the Chinese name of "Kelvin", nor did she divulge her connection with TGCI. Kelvin fold shim that she lived in Central and asked to be dropped near the Victoria Prison, hence she was taken to Arbouthnot Road.

32. The whole incident erupted after Mok allegedly volunteered information to Miss Yu in the taxi journey to Christaine Place. According to Miss Yu Mok whispered to her that she was very friendly with the applicant, describing him as "Leung Sir" and that she had a better impression of him after the 4th April on which day, she felt aggrieved in not winning the first prize with the applicant on the panel of judges. She was said to have told Miss Yu that the applicant comforted her and consoled her and that she had become very friendly with the applicant. In him, she found a true friend and the applicant treated her like a younger sister. Mok gave Miss Yu her account of how she contacted and met the applicant for the video tape. She further disclosed that they had subsequently met and that they talked for about three hours only the day before. She claimed that the applicant encouraged her to stay out of trouble and that the applicant was very kind to her and did not mind seeing her even though she was an ex-inmate of TGCI.

33. The applicant took Miss Yu to task on this volunteered statement of Mok thus : Miss Yu was over-zealous; she neglected her supervisory duty in checking entries of inmates' movements in Bauhinia House; she breached her official duties by taking two residents to Christaine Place, a location unsuitable for counselling, and for an over-extended period from 10:30 p.m. to 2 a.m; there was no justification for outside counselling even when another resident whom Mok's boyfriend showed attention to was soon to return; Miss Yu concealed the presence of one other resident in the taxi and at Christaine Place; Christaine Place had no privacy for counselling particularly with the intrusion of another resident; she prevaricated; she was less than frank in matters relating to her post-recording of the taxi conversation; in any event she only transferred the record of the taxi conversation from her personal notebook to the official notebook some four days later; the indulgence granted to Mok in the evening of 26th June was to induce her to make a disclosure in the hope of promoting Miss Yu's personal ambition; Mok was ingratiating herself with Miss Yu; Miss Yu's evidence was interspersed with contradictions; the volunteered statement was hearsay.

Mok described these same events in her written statements taken at Bauhinia House. Suffice it to say that in her statement, Mok claimed to have disclosed to the applicant her identity as a TGCI ex-inmate. When Mok came to give evidence, she was adamant that she lied in her statements about the video tape and the applicant's personal approaches at all the various functions. She was allegedly in love with the applicant and these false excuses were said to have been previously fabricated to save her maiden " pride and dignity". She had made an effort to avoid meeting the applicant so that he would not later refuse any association with her as an ex-inmate. But according to Miss Yu, in her taxi conversation, Mok did not find it necessary to exercise the same caution; she showed little concern that Miss Yu might possibly ruin the relationship by exposing her identity to the applicant. Mok retracted every part of her written statements that imputed knowledge or touched upon revelation of her identity to the applicant. Before the Adjudicating Officer, she denied having been spoken to by the applicant at any of the functions; she also denied having discussed anything with reference to TGCI or asked for the video tape; the applicant called her "Kelvin"; they talked about his family and her family. Mok made no specific mention of the taxi conversation but told the Adjudicating Officer that as the result of Miss Yu's advice "not to be together with Leung Sir", the next day she told the applicant under the pretext of he being a married man that they must go apart. Mok further said that she was afraid when she was interviewed for her statements back at Bauhinia House as she was still being under supervision, liable to recall. In essence, Mok retracted all that implicated the applicant.

34. Mok's statements were produced by Senior Superintendant Brooks who was not personally taking these. Senior Superintendant Tsung Superintendant Lau and Officer Chu who were involved in the taking of these statements, were all called after their production and after the oral evidence of Mok. These officers were intensely cross-examined. One of the alleged discrepancies complained of was whether Superintendent Lau was in attendance throughout the interview at Bauhinia Rouse. At the end of their cross-examination, the applicant applied for further cross-examination of Mok but confining to one point, viz the manner in which Mok's statements were taken at her interview, for resolving "the discrepancies" among Senior Superintendent Tsung, Superintendent Lau and Officer Chu. Miss Pansy Yu had not then been called. The applicant's request for further cross-examination of Mok as to the manner and circumstances in which she was interviewed was made on the 12th August and was granted on the 25th before Miss Pansy Yu was called Long after Miss Pansy Yu was thoroughly tested on Mok's volunteered taxi statement, on the 7th September, the applicant was told that Mok was a lost contact case subject to a pending recall order and thereupon the applicant requested to intervene with his own witness, Acting Principal Officer Kung. Some nine days later on the 16th September, when the applicant was again reminded that Mok was a lost contact case, he requested to reserve his further cross-examination of Mok "on the circumstances and manner under which she was interviewed". The applicant had intimated that he did not "wish to wait indefinitely". The Adjudicating officer declined to allow an unqualified reservation but Offered to give favourable consideration to a request for postponing further cross-examination up to the conclusion of the proceedings. The applicant expressed no interest in the offer.

35. It was suggested by counsel for the applicant that the applicant had not expressly abandoned further cross-examination on other aspects. I do not accept that interpretation. The applicant gave no other reasons to the Adjudicating Officer for such further cross-examination he applied for. He was concerned exclusively with the interview leading to the taking of Mok's statements. The applicant had never sought elaboration from Mok of her volunteered taxi statement made to Miss Pansy Yu.

36. Four days later on the 20th September, the applicant finally concluded his speech. In his final address, the applicant decided confined his complaint on his lack of opportunity to further cross-examine Mok to the Bauhinia House interview. However, the applicant sought no further postponement, stating : "As this case has dragged on for nearly two months, I just could not wait indefinitely". The matter was thereupon adjourned for deliberation by the Adjudicating Officer Another eight days later on the 28th September, the applicant made supplemental submssions. The Adjudicating Officer adjourned to the 21st October for his decision. That was more than three weeks after the applicant concluded his submissions on the 28th September. From the last discuss ion on further cross-examination on the 16th September, over a month had elapsed. In none of these subsequent adjourned hearings had the applicant pressed again for Mok's further cross-examination on her interview. In his final address, the applicant merely sought to make capital of Mok's absence.

37. I have endeavoured to illustrate that the volunteered taxi statement made to Miss Pansy Yu was never made a target of Mok's applied-for further cross examination. Miss Yu herself had been harshly attacked, at times bordering harassment. The net result is that Mok's volunteered taxi statement given to Miss Pansy Yu on the 26th June 1988 had been subjected to an exhaustive cross-examination.

38. Mok gave evidence before Miss Yu described the taxi conversation to the Adjudicating Officer. In her oral evidence given earlier in time, Mok made reference to a conversation with Miss Pansy Yu, in which disclosure of her association with the applicant must have been made. Evidently Mok had the date confused. Her evidence as recorded was : "On 1.7.83 aftercare officer Pansy Yu spoke to me and told me not to be together with Leung Sir. The next day, I met him, I told him that we should separate. He asked why and I told him that he was married". The disclosure was not pursued in cross-examination.

39. In truth, the sequence of events has demonstrated that the applicant t was exclusively concerned with Mok's interview back at Bauhinia House. He had never requested any further cross-exmaination in respect to Mok's taxi conversation with Miss Yu. Even for the interview at Bauhinia House, on three subsequent occasions over more than a month after his renewed request for further cross-examination, the applicant made no attempt to revive the issue. The lost contact case of Mok was a reality all had accepted.

40. Mok had herself claimed to have been intimidated in her own notion that she was still under supervision, liable to be recalled. The officers responsible for taking Mok's statements gave evidence that she was not frightened or confused. Mok was described as somewhat taken by surprise at the inception but calmed down later. These officers were closely questioned on the manner and circumstances in which Mok was interviewed. Great play was sought to be made that Mok was overawed and repressed by the presence of so senior the officers, at such late hours and in such an unusual interview of a considerable length from about 10 p.m. to almost 2 a.m. One of the complaints was that Mok had no option but instead she was instructed to reveal the facts. It was emphasized that Mok's retraction in her oral evidence should be taken as have overriden her hearsay statements and that as a self-confessed liar, nothing in what she had disclosed should be given any weight.

41. On behalf of the applicant, it was also complained that Mok was not specifically declared a hostile witness before cross-examination by the prosecuting officer proceeded. It is true that Mok was only proclaimed to be a hostile witness in the decision of the Adjudicating Officer. It was that Mok was wrongly allowed to look at her statements in Court under the pretext of refreshing her memory. These were non-observances of procedural rules.

42. I shall first deal with the uncontroverted evidence. According to Chief Officer Chung Mei-kuen, on the 4th April 1988 in the Easter Variety Show competition at Lai King Training Centre Mok was one of her two TGCI soloist singers. The applicant himself remembered one girl from TGCI competed solo and lost. The applicant himself sang on stage together with two other Superintendants. He was one of the judges and had every reason to pay attention to Mok as a contestant in a special category. After the variety show, the applicant in a group of about ten, including V.I.Ps, visited the TGCI girls in their own room. The applicant was seen to be speaking to, group of inmates with Mok standing right in front, facing him. There were two other occasions on which both the applicant and Mok attended. These were on the 30th April 1988 and 25th May 1988. These occasions provided further opportunities to the applicant of meeting Mok. After the telephone call from Mok in early June, they arranged to meet at the Star Ferry concourse. The applicant took Mok out on three Saturdays in less than a month, on or about the 11th June, 25th June and the 2nd July. They spent together about eight hours on the first occasion, two hours on the second and eight hours on the third. They went for a car-ride on the first and third occasions, and they had a coffee meeting on the second. They visited two restaurants on the first occasion and also two restaurants with 5:30 film show in between on the third. While denying any revelation of her past identity to the applicant for fear of losing the men she claimed to be fond of on these three occasions, Mok and the applicant talked about their respective families. She had called the applicant by his full name. On the last date, the applicant dropped her in Arbouthnot Road, opposite Bauhinia House. Mok made no effort to wait until the applicant's vehicle left the scene. She immediately made her way into Bauhinia House, her designated residence under supervision. Superintendant Lau and Senior Superintendant Tsung were keeping them under surveillance from inside the premises. Mok was observed by Superintendant Lau as coming out of a car and entering the house. Senior Superintendant Tsung saw Mok alight and walk across the road into the house.

43. There were ample opportunities for the applicant and Mok discussing her past in their regular personal encounters, each of a sustained period, particularly in the course of their conversation touching on their respective families. There must have been moments for baring one's soul. Prior meeting opportunities existed, in the first of which on the 4th April attention was somewhat focused on Mok as a soloist. The applicant himself was there to judge the contest. Counsel raised nine points as to Why the applicant could only have gained very little impression of Mok. I have considered them with care, but these meeting opportunities were recent, the applicant and Mok were judge and contestant on the first, the following outings were regular and shortly spaced, each occasion dragged on for hours, their relationship became close, their conversation had turned personal, the applicant took Mok to Arbouthnot Road opposite Bauhinia House and Mok made an instant entry without hesitation. All this is evidence from which an irresitible inference could be legitimately drawn by the Adjudicating Officer that Mok's identity was known to the applicant. There were no co-existing circumstances capable of weakening the inference, if so drawn. The applicant's strained explanations of the firs t telephone conversation with mok, his invitation to Mok to board his vehicle at the first meeting and the use of a single name "Kelvin" from first to last did him little credit.

44. In an application for judicial review, the Court is concerned with the decision making process and not the decision itself. Chief Chief Constable of the North Wales Police v. Evans, [1982]1 W.L.R. 1155 at p. 1174 per Lord Brightman. The ambit of supervision over the decision making process has been neatly outlined as:"illegality", "irrationality", procedural impropriety" and hopefully "proportionality" in the not too distant future. Council of Civil Service Unions v. Minister of Civil Service, [1985]1 A.C. 374 at p.410 Letters D - E, per Lord Diplock. The Court must never substitute its own views for the views of the lay tribunal. R. v. Boundary Commission, Ex parte Foot, [1983]1 Q.B. 600 at p.626, Letter H to p.627 Letter A per Sir John Donaldson, M.R. If there exists material capable of any probative value, the weight to be attached to it is a matter wholly delegated to the Adjudicating Officer. The authorities for these and other trite principles are gratuitously given for ease of reference.

45. The uncontroverted matters were all considered and relied upon by the Adjudicating Officer. These are proper circumstances from which knowledge may be inferred even on the higher criminal standard of proof adopted by him.

46. In addition, there is the volunteered statement to Miss Pansy Yu on the 26th June before departmental inquiry was set in motion. The volunteered taxi statement, if accepted, is direct though hearsay evidence, in support of a crucial ingredient of the charge that the applicant had knowledge of Mok's past. It is capable of reinforcing or corroborating the aforesaid circumstantial evidences. The Adjudicating officer was entitled to have similiar regard to the written statements of Mok despite her retraction made at the hearing provided he was satisfied that they were voluntary and told the truth.

47. The demeanour of the other TGCI ex-inamte, Kam, was equally unsatisfactory. Kam, was complained by the prosecuting officer as having departed from her witness' statement. But her witness' statement was not admitted by the Adjudicating Officer on the ground that the applicant had been given no notice of such a statement nor a copy of it. The Adjudicating Officer simply rejected Kam's oral evidence and there was no necessity for considering her unproduced witness' statement.

48. The Adjudicating Officer was clearly aware that Mok had turned hostile, deliberately tailoring her evidence to the advantage of the applicant. Mok had been treated by all as a hostile witness and the proceedings were conducted on that basis. As I have said, all this including hearsay evidence comes under "technical rules of evidence", and the technical rules do not form part of the rules of natural justice. As they stand or and modified by the Departmental Circulations, breaches would only become material if a fair trial had not thereby been given to the applicant.

49. The Adjudicating Officer cautioned himself "to avoid hearsay evidence and to attach little weight to it", but he ultimately found Mok's oral evidence wholly unreliable out of, inter alia, her affection and concern for the applicant and accepted as true the oral hearsay statement given in the taxi to Miss Yu and the unsworn written statements obtained at the interview. These are indeed capable of having probative value, and it was open to the Adjudicating Officer to use them, as in the concession of Miss Hartstein, in support of the charge in conjunction with other evidence. That was what the Adjudicating Officer did.

50. The Adjudicating Officer observed Mok as being "not the type to be frightened". He noted that "during the adjudication she was neither frightened nor confused but showed herself to be confident and capable in her replies". The Adjudicating Officer was entitled to treat such of Mok's demeanour as contrary to her and others' allegations that she was anxious, baffled, troubled by the risk of a recall and pressurised into making the statements at the Interview. Further, on the question of voluntariness, I interpret the Adjudicating Officer as commenting on Mok's allegedly sapped will against the apparent audacity with which she responded to her required attendances at the adjudication with utter indifference.

51. These are fair, legitimate and relevant comments which the Adjudicating Officer could make. On the evidence so accepted,  including the hearsay statements given in the taxi and at the interview, it cannot be said that the finding of the Adjudicating Officer is such as no reasonable tribunal, properly instructed in the law applicable to this case, could have reached.

52. It is accepted that the proceedings before the Adjudicating Officer were to be conducted with the modifications recommended in the departmental Circulations Within the purview of these recommended modifications, the only question to be asked is whether the applicant had a fair trial despite the alleged irregulaties and breaches.

53. In this Motion, the applicant prays for a certiorari to issue to remove into this Court for quashing the finding of the Adjudicating Officer on his alleged failure to conduct a fair hearing and/or alleged error of law on the face of the record.

54. There was evidence for the Adjudicating Officer to infer knowledge on the part of the applicant of Mok's past. He was entitled to give weight to the hearsay statements given to Miss Yu and to the other officers at the interview. All the evidence he relied on was, if accepted, capable of having probative value. What weight he attached to it was his perogative. Nevertheless, this Court is called upon to consider whether any of the procedural matters under complaint has deprived the applicant of a fair trial and what real prejudice he has sustained.

55. I need deal only briefly with the Amended Grounds for judicial review in the same order as they were put :

(1) Grounds 1 to 3 : these are narrative.

(2) Ground 4 : it is alleged that the Adjudicating Officer was wrong in relying or placing disproportionate reliance  on the two statements of Mok and the taxi conversation with Miss Pansy Yu. It is inaccurate to describe these two written statements of Mok and the volunteered statement to Miss Yu as the only evidence on which the Adjudicating Officer returned his finding of knowledge. The Adjudicating Officer accorded considerable inportance to the circumstantial evidence arising from the uncontroverted facts to which I have referred. Not being a legal practitioner, understandably he did not put circumstantial evidence and the unsworn hearsay statements into separate water-tight compartments in his deliberation. He took a bird's-eye view and was entitled to rely on all the evidence he accepted. There is nothing to demonstrate that he was in error or procedurally unfair. Admittedly, the written statements of mok and the volunteered taxi statement to Miss Yu are hearsay in character. I shall return to hearsay statements in Ground 7(1) on a slightly different plane The Adjudicating Officer gave his reasons for accenting these statements and considered them in conjunction with the rest of the evidence. Neither his approach nor his reasoning is bad in law or contrary to the weight of the evidence. It cannot be said that he reached a wanton or unjustified conclusion to which no reasonable tribunal could have come. His findings of primary facts are capable of supporting his conclusion based evidently also on inferences. That was a legitimate process.

(3) Ground 5 : it is complained that Mok's wholly contradictory oral evidence should be accepted to the exclusion of her written statements. It is further complained that the prosecution failed to adduce from Mok the entire taxi conversation volunteered to Miss Yu. The Adjudicating Officer was well aware of the prevarication and retraction of Mok. Mok characterised her own statements given at the interview as lies. The Adjudicating officer weighed her overall evidence in the circumstances. He was entitled to conclude that the statements given at the interview were voluntary. Mok did refer to Miss Yu's advice which could only have come after a prior disclosure of her association with the applicant. When Miss Yu came to give evidence, she was grilled in detail on this taxi conversation, and the applicant saw fit not to seek Mok's further cross-examination on it. It cannot be said that the applicant did riot have a fait hearing on account of ground 5.

(4) Ground 6 : criticisms were levelled at the prosecution's inability to locate Mok for the further cross-examination ranted. The perimeter of the requested further cross examination was constricted, limiting to the interview. No other further cross-examination was sought or granted. The officers at the interview were all fiercely cross-examined. Every conceivable attack was mounted. Before the calling of these officers, Mok had previously denied and retracted all the damaging portions in her written statements. If Mok were simply to repeat that she lied but not only out of love or affection, but also because of fear and/or inducement at the interview, that could hardly take the applicant's case further. The Adjudicating Officer found Mok lying to protect the applicant. If Mok were now to reverse her version of lies but claim that she was in fact telling the truth under what was described by the applicant as "obscurer and suspicious manner and circumstances" in which her written statements were taken, the Adjudicating Officer would not likely be much impressed. These are just some of the real possibilities. I am wholly convinced that the absence of Mok for further cross-examination has caused no material prejudice. After all, the applicant never renewed his effort in pursuing it. Moreover, it has not been established as an oversight or neglect on the part of the prosecution not to be able to locate Mok for such further cross-examination. Mok was a lost contract case.

(5) Ground 7 : breaches of the rules of natural justice and/or recognised procedure are alleged. It need be remembered that the fluid notion of procedural fairness as a justification for judicial review is largely superceded here by the focus on a fair hearing.

Ground 7(1) : in the disciplinary proceedings presided by the Adjudicating Officer, hearsay evidence was admissible. This was subject to the concession of "using" unsworn witness statements "in support of the charge" and not to prove, by themselves alone, quilty knowledge. The Departmental Circulations provide that technical rules of evidence need not be observed. Save as evidence of a complaint in sexual crime, hearsay evidence is generally not admissible in a criminal prosecution as evidence of facts. In a criminal trial, hearsay evidence may also, among other things, touch upon credit or rubut suggestion of inconsistency or recent fabrication. It is common ground that hearsay evidence was, subject to the concession of counsel, admissible evidence of facts before the Adjudicating. Officer. The Adjudicating Officer gave reasons for giving weight to such hearsay evidence. His reasons seem logical and it was open to him so to reason and thereafter to act on it. Mok was not declared a hostile witness at the appropriate time but was there any doubt In the mind of anyone concerned that Mok bad turned hostile and was treated as such? The applicant had a legitimate expectation that the procedural rules for a hostile witness should be given effect to, but I am of the view that no real prejudice has been caused to the applicant by the absence of the making of a prior declaration during the hearing. The proceedings were regarded by all as if a declaration had been made in time. The Adjudicating Officer considered the applicant's admitted lie in his first statement in the face of what would appear to every prison officer as the plainest accusation. It was open to the Adjudicating Officer to doubt his  credibility on account of what he, the Adjudicating Officer must have regarded as a naive salvage operation. It is always debatable and how a lie or the reasons for a lie can be relevant. Lies in Court may constitute corroboration. It is permissible to give weight to a lie told in a witness box   when it was deliberate, related to a material issue, motivated by realization of guilt and is established by independent evidence as such. It is a path fraught with dangers that most lawyers fear to tread. The Adjudicating Officer is not a legal practitioner. It would be absurd to read more into his simple observation that in conjunction with "all the evidence", the applicant's later explanations were unconvincing and not to be believed by reason of his earlier less than forthright answers.

Ground 7(2) : alleged improper admission of the two written statments of Mok was again highlighted, but apart from thoses statements, there was circumstantial evidence coupled with the volunteered taxi conversation. These are all matters capable of founding guilty knowledge.

Ground 7(3) : The applicant feels aggreived that he was deprived of any opportunity to cross-examine Mok on the taxi conversation as the result of the prosectuion's alleged failure evidence of the whole incident. The applicant had in fact opportunity to cross-examine Mok on what must have been a prior disclosure to Miss Yu of Mok's association with the applicant Understandably the applicant had chosen not to pursue the matter or enlarge it at that juncture. After lengthy cross-examination of Miss Yu, the applicant still saw fit not to apply for further cross-examination of Mote on the taxi conversation. There does not seem to be any justification for complaining that the prosecuting officer wrongfully failed to elicit full evidence from Mok as to this alleged conversation with Miss Yu. After all, the conduct of the prosecution was in the hands of the prosecuting officer. There is no evidence that such conduct was in any way, unfair or improper.

Ground 7(4) : the Adjudicating Officer was entitled to comment on Mok's apparent audacity in not attending the proceedings punctually and allowing herself to he subsequently absent as a lost contact case" culminating in her recall order. Mok was described as confident and not likely to be intimidated in cross-examination. It was proper material for the Adjudicating Officer to pit against Mok's alleged plain personality, susceptible to threat and pressure at the interview or inducement in her taxi journey with Miss Yu.

Ground 7(5) : indeed, there was evidence for the Adjudicating Officer to find that Mok was spoken to by the applicant on the 4th April 1988 after the Easter Variety Show competition. Chief Officer Chung Mei-kuen was standing next to the applicant She admitted in cross-examination that she was preoccupied and was unsure that the applicant was speaking directly to Mok. She said "Mok Yee-man was standing in front of Mr Leung. I am not sure whether Mr Leung spoke to Mok or the other girls. I believe that he was talking to Mok because Mok was standing in front of Mr Leung." The conversation overheard by chief Officer Chung Mei-kuen was : "Don't be upset You did sing very well". Mok was one of the two soloist singers from TGCI. She was then standing in front of and facing Mr Leung. The Acting Principle Officer Mr Kung of CCCI gave evidence on behalf of the applicant and he repeated what the applicant allegedly said in direct quote : All of you have already done your best. To lose or to win is not important." Emphasis obviously was on the words "all of you" hoping to exclude any personal conversation with Mok. The Adjudicating Officer was entitled to doubt how Kung was able to repeat so readily the exact words allegedly said in an uneventual incident where he was required to take no official notes. It was open to him to reject the quotation from Acting Principle Officer Kung and accept the evidence of Chief Officer Chung Mei-kuen. There was sufficient evidence to support the Adjudicating Officer's finding that the applicant had spoken personally to Mok on the 4th April 1988.

56. The applicant had the fullest of opportunity to cross-examine the witnesses. I have expressed my views on the further cross-examination sought on Mok's interview. He was in no way inhibited in his preparation or presentation. The applicant was given every conceivable indulgence in conducting his defence before Adjudicating Officer. He had the advantage of two fully-fledged submissions. No stone was left unturned. Clearly the applicant had a fair trial.

57. For all the reasons I have given, none of the complaints of the applicant has any substance. The disciplinary proceedings were, in my opinion, well conducted and there was sufficient evidence to enable the Adjudicating Officer to reach his finding. The legal approach of the Adjudicating Officer was not bad in law. Despite the absence of a prior declaration of Mok as a hostile witness, he did not wrongly admit inadmissible evidence or reject evidence otherwise admissible. He acted throughout exemplarily fair. The applicant was granted much indulgence. The decision making process of the Adjudicating Officer can, in no way, be faulted. Of the minor non-observances of the procedural rules, they were trivial and technical. The applicant cannot claim to have been thereby materially prejudiced.

58. It is a discretionary remedy that the Applicant seeks. If I were wrong in my overall assessment of a fair hearing, the nature of the shortfalls against such overwhelming evidence would not justify judicial intervention. Despite respect for the presumption of innocence, the Adjudicating Officer could bring in no other verdict on the evidence he accepted. In my view, this is a case where no amount of procedural impropriety of the nature under complaint would have affected the outcome.

59. The application must therefore be refused and subject to what Counsel have to say, I would order costs of the application be costs to the respondent.

Representation:

Mr Gary Plowman & Mr A. Chau instructed by M/s C.K. Mok & Co for the Applicant.

Miss V.H. Hartstein, S.C.C. & Mr K.L.Yuen, Crown Solicitor for the Respondent.