Re Wong Chun Sing and Another

HCMP002574/1983

Applications for order prohibiting Commissioner of Customs and Excise from holding an enquiry into alleged criminal offences by customs officers and for declaration that the enquiry would be contrary to Colonial Regulations.

Court held that:   

The applications were dismissed.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Hon. Power, J.

Dates of Hearing: 16th December 1983.

Date of Delivery of Judgment: 13th January 1984

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JUDGMENT

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1. In this matter the Applicant, Mr. Wong Chun Sing and Mr. Ng Fook Yiu, two Customs Officers, are asking for an order prohibiting the Commissioner of Customs and Excise from holding an inquiry under Rule 3(1) of the Customs and Excise Service (Discipline) Rules into charges that they were guilty of bringing the public service into disrepute and for a declaration that any inquiry into that conduct, involving the investigation of allegations that they took bribes from certain persons, would raise the same issues as were canvassed in their trial, they having been acquitted on appeal, and would therefore be contrary to Colonial Regulation No. 62.

2. The two Applicants along with four other Customs Officers were charged that they conspired between March 1979 and August 1980 with ten named persons and with other persons unnamed to obstruct the course of public justice in that they and other persons unknown should act contrary to their public duty as Customs and Excise Officers in relation to the proper enforcement of the Dangerous Drugs Laws of Hong Kong.

3. The Defendants were tried in the District Court on this charge and convicted. They appealed to the Court of Criminal Appeal and all six had their convictions quashed.

4. The Court of Appeal when describing the charge said that the allegation of the Crown when put in simple language was "that these officers had agreed between themselves that they should turn a blind eye to the drug trafficking in the Sheung Shui area, in return for bribes which were to be paid to them."

5. The learned trial judge had found that the evidence of the prosecution as to the payment of bribes to the Defendants over the period in question was true and rejected the defence evidence to the contrary. He found that the Defendants had conspired to accept bribes and in return to give protection against arrest. The Appeal Court considered that the Learned Judge had misdirected himself as to the law regarding conspiracy and that it must, therefore quash the convictions. The Court was, however, by no means satisfied that he was in anyway wrong in arriving at his conclusion that bribes had been paid. The judgment of the Appeal Court states:-

"The evidence of the prosecution witnesses certainly establishes that, during a period of more than a year there were at least seven different transactions, each involving the payment of corrupt money to one or more of the Defendants. Had the Defendants (with the exception of the 6th Defendant in regard to whom we think that, in any event, the evidence was too weak to justify a conviction) faced seven different individual charges of bribery, there was clear evidence on which, if it was accepted by the judge, as indeed was the case, they could properly have been convicted of these charges. Alternatively, the evidence clearly supported a number of individual conspiracies by different groupings of the Defendants during the period alleged. Had they been charged in this manner, there would have been sufficient evidence to sustain their conviction."

6. The Appeal Court was satisfied that there was ample evidence to establish that the present Applicants, who were the 4th and 5th Defendants, had received corrupt payments.

7. Mr. Brian van Buuren who appeared for the Applicants argued five grounds. His first ground was that the proposed inquiry into the said charges will violate the Colonial Regulation 62 and is therefore ultra vires. Colonial Regulation 62 reads as follows:

In the proposed inquiry the first Applicant faces three charges of conduct bringing the public service into disrepute and the second applicant faces two. In each case the disciplinary charges detail a single incident of solicitation and acceptance of a bribe. Each of the alleged' incidents is one of the incidents said to have resulted from the conspiracy with' which the Applicants were charged and acquitted and in each case the giver of the bribe gave evidence during the trial. Mr. Brian van Buuren submitted that substantially the same issues were being raised by the disciplinary proceedings as had been raised in the trial.

8. Mr. Daw for the Crown contended that this was not so. I do not think it necessary to canvass the arguments in detail. Regulation 62 says .that the officer may be punished on any charges arising out of his conduct which "do not raise substantially the same issues as those on which he has been acquitted". The only issue upon which the officers were acquitted in the conspiracy trial was the issue of conspiracy. The Court of Appeal was not satisfied that they had conspired as charged. The Court was satisfied that there was ample evidence to substantiate the allegation of taking bribes but, as that was not an issue before the Court, no such offence having been charged, they could not be convicted on that evidence. I am satisfied that the charges to the canvassed in the inquiry do not raise substantially the same issues as those on which the Applicants were acquitted and that there is, therefore, no substance in this first ground.

9. The second ground raised was that, the inquiry violates the rule of autrefois acquit and therefore is against natural justice. I must say I find it little difficult to understand this ground. The two Applicants were acquitted on a charge of conspiracy they were never acquitted on charges of soliciting and accepting bribes. Indeed the Court of Appeal found there was ample evidence upon which to have convicted them on those charges. Even if the plea of autrefois acquit exists in disciplinary proceedings, and I am in some doubt, having considered In re a Medical Practitioner 1959 N.Z.L.R. 784 that it does, the Applicants cannot raise any plea of antrefois acquit in the inquiry as they have never been acquitted on the charges now brought against them.

10. Mr. Daw, when dealing with this ground, applied the principles set out by Lord Morris in Connelly v. Director of Public Prosecutions (1964) A.C. 1254 at 1305 to the facts of this case. I do not intend to repeat his helpful analysis in this regard. Suffice to say that I am quite satisfied that no plea of antrefois acquit, even if such a plea be open in disciplinary proceedings, lies in the present circumstances.

11. The third ground was that the inquiry is, in effect, a hearing of criminal charges against the Applicants and is therefore outside the scope of the Customs & Excise Service (Discipline) Rules Cap. 342. Mr. van Buuren submitted that the Commissioner has no right to conduct disciplinary proceedings into criminal offences. He contended that where criminal offences were involved they must be dealt with in criminal proceedings before a properly constituted Court of Law and that only after the conclusion of such proceedings could the Commissioner, if it was appropriate, bring disciplinary action under the Rules.. He submitted that this was made clear by Rule 18 of the Rules which set out the procedure to be followed when a subordinate officer has been found guilty or has pleaded guilty in criminal proceedings. It is certainly true that Rule 18 provides such a procedure. I do not however consider that it provides a conclusive argument that the Commissioner is debarred from dealing with officers in disciplinary proceedings who are alleged to have committed criminal offences with which they have not been charged. Rule .3 sets out what constitutes a disciplinary offence. Rules 3(h) and 3(k) make disciplinary offences of acts which are, of their nature, criminal offences. It was not suggested that the Commissioner does not under those rules have power to deal with criminal offences. The Applicants in the present case were charged under Rule 3(1) which says that a person commits a disciplinary offence who "by his conduct brings the public service into disrepute". Is it then that except where Rule 3 expressly authorizes the Commissioner to deal with a criminal offence he is debarred from so doing? There is certainly nothing in the Ordinance or in the Rules to suggest that such a restrictive interpretation should be placed on Rule 3.

12. Mr. van Buuren submitted that, in this regard, the court must look to the wider public interest which was that criminal matters should be dealt with by criminal courts in open proceedings governed by the Rules of Criminal Procedure. Mr. van Buuren sought to support this proposition by referring to the words of Lord Devlin in Connelly v. D.P.P. where he said, at 1354, "The Courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused." It is true the courts will look jealously to see that the due process of criminal law is not being improperly encroached upon by the Executive. However, no authority having been advanced to suggest the contrary, I am satisfied that when a public body is given an express power to deal with its members, it being alleged that their conduct has brought the public service into disrepute, it is perfectly proper that the Disciplinary Tribunal of that body should have power, which it must, of course, exercise in accordance with the principles of natural justice, to consider criminal offences even though they have not been dealt with by the criminal courts.

13. Mr. van Buuren's fourth ground was that the inquiry violates Article 10 of the Universal Declaration of Human Rights. This article reads:-

"Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."

Mr. van Buuren conceded that this declaration did not have the force of law in Hong Kong. I said during the hearing and I again say that however laudable the rule proclaimed in such a declaration may be, it does not, unless expressly enacted as such, become the law of this colony. This court is governed by and must apply the law, statute and . common, which applies in Hong Kong. I do not consider that any useful purpose would be served by canvassing further the fourth ground.

14. The fifth ground was that, the Applicants having been formally notified that the transcript of the evidence, witness statements etc. relating to the proceedings in the District Court in KDC Criminal Case No.758 of 1980 will be produced at the inquiry, there is a grave risk that the inquiring officer will be biased against the Applicants and that, therefore, the Applicants will be deprived of a fair hearing. This ground seems to me to be entirely premature. If such a transcript is produced at the inquiry then it will be for the presiding officer to determine first whether he admits is and second, if he does admit it or admits part of it, the use to which it can be properly put. This court cannot act upon the assumption that he will use it improperly and will, by such use, bias himself against the Applicants. I do not consider there is any substance in this ground.

15. I do not find substance in any of the grounds raised and the application is therefore dismissed. Applicant is to pay respondent's costs to be taxed.

Representation:

Mr. Daw for the Crown.

Mr. Brian van Buuren (Chung, Kwan, Chan & Evans) for Applicants.