Re Wong Chun Sing and Anothers

CACV000009/1984

Administrative law - Customs and Excise Service (Discipline) Rules - Colonial Regulation 62

Where a Customs Officer has been acquitted of conspiracy in criminal proceedings there is nothing in Colonial Regulation 62 (which affords protection to public officers from double jeopardy) that prevents the Commissioner from proceeding against him for a disciplinary offence created by rule 3 of the Rules, even though the facts relied upon might be the same as those sought to be established in the earlier trial. The Colonial Regulation is concerned not with facts but with issues that are substantially the same.

Decision of Power, J. affirmed.

Date of hearing: 13th March, 1984
Date of Judgment: 13th March, 1984

IN THE COURT OF APPEAL

Coram:    Leonard, V.-P., Fuad, J.A., and Hunter J.

Date of Judgment: 13th March 1984

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JUDGMENT

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Fuad, J.A. :

1. This is an appeal from a decision by Power J. who, in an application for judicial review, declined to grant either of the following reliefs which had been sought by two Customs Officers -

2. This is how the matter arose. The Applicants, Messrs. Wong Chun Sing and Ng Fook Yiu, were two of six officers in the Customs and Excise Service who were convicted in the District Court of conspiracy to obstruct the course of justice. The Particulars of Offence (there were no additional or alternative charges) were as follows -

3. The convictions of all six officers were quashed by the Court of Appeal on the 14th September 1982. The applicants were respectively the 4th and 5th Appellants. The judgment of that court was before Power J. and is before us. After setting out the matters which the Crown must establish where a conspiracy is charged, Sir Denys Roberts, C.J. (who delivered the judgment of the Court) had this to say -

"There is, unfortunately, nothing in the judgment to show that the judge approached the evidence in this manner. He finds that a series of corrupt payments were made; he jumps from this finding to another of guilt. He does not consider at all whether the acts of corruption, and the circumstances in which they occurred, justify the inference that there was a central conspiracy to which all the defendants were parties, rather than a number of sub-conspiracies.

We have come to the conclusion with regret, that his failure to consider this vital point must be fatal to the conviction."

4. It is convenient here to read out what the Chief Justice had earlier said, and this passage was set out by Power J. in his review of the background -

"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."

5. On the 27th October 1983 the acting Commissioner of Customs caused to be served upon the two Applicants (and upon three of the other officers whose convictions had been quashed by the Court of Appeal, but who did not apply for judicial review) six charges of c "conduct bringing the public service into disrepute", a disciplinary offence created by Rule 3(1) of the Customs and Excise Service (Discipline) Rules (the Rules"). They were slightly amended versions of charges which had been earlier sent to the officers.

6. Mr. Wong Chun Sing is the subject of all six charges. In two he is alleged to have acted alone; in the remainder, with other officers. Mr. Ng Fook Yiu is named in three of the charges, never alone. Each of the six charges is worded the same, except for the names of those whose conduct is impugned, and the names of the six individuals from whom it is alleged they solicited and accepted bribes. For convenience, and as a specimen, I will read charge (F) in which both the Applicants are involved -

It is necessary perhaps to note that each of the five persons from whom it is alleged bribes were taken (one name occurs twice) is mentioned in the Particulars of the Offence which I have already read. However, five of those whose names appeared in the Particulars as having conspired with the officers do not feature in the particulars of the disciplinary charges.

7. I will now read Colonial Regulation 62 which is in my view crucial to the decision we have to make. It is in these terms -

8. Power J. decided against the Applicants on each of the five grounds upon which their application was founded. The first ground was that the proposed inquiry violated Colonial Regulation 62 and was therefore ultra vires. After setting out the Regulation the Judge said that as he saw it the only issue upon which the Applicants were acquitted in the conspiracy trial was the issue of conspiracy. The Court of Appeal had not been satisfied that they had conspired as charged., However, the Court had been 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. He for his part was satisfied that the charges to be canvassed in the inquiry did not raise substantially the same issues as those on which the Applicants were acquitted. In the Notice of Appeal it is said that the Judge erred in so holding.

9. The second ground was worded thus - "The inquiry violates the rule of autrefois aquit and therefore is against natural justice". Power, J. said that he had found this ground a little difficult to understand. The Applicants had been acquitted on a charge of conspiracy. they had not been acquitted of soliciting and accepting bribes. He said that even if the Plea of autrefois acquit was available in disciplinary proceedings (which he doubted in the light of a New Zealand authority which he cited) he had reached the conclusion the officers could not successfully raise such a plea because they had not been acquitted on the charges now brought against them.

10. In the Notice of Appeal it is said that the judge had misapprehended this ground. The Applicants' contention had been that the law granted them the right to plead. autrefois acquit if the charges were laid against them in a Court of Law. The proposed disciplinary proceedings. were obviously designed to pre-empt the Applicants from raising such a plea, for it was not available in the disciplinary proceedings. Therefore the Applicants were being denied a right granted to them by law and thus there was a denial of natural justice. On this ground, the Notice of Appeal also has it that the Judge had exceeded his judicial function in deciding that he was "quit satisfied that no plea of autrefois acquit, even if such a plea be open n disciplinary proceedings, lies in the present circumstances" since he was not seized with any cause which granted him the jurisdiction to make such a finding.

11. I will return to the first two grounds later.

12. The third ground for the Application was that the inquiry was in effect a hearing into criminal charges and was therefore outside the scope of the disciplinary rules. On this point, the Judge examined the wording of Rule 3 and held that in the absence of authority he was satisfied that when a public body was given an express power to deal with its members, it being alleged that their conduct had brought the public service into disrepute, it was perfectly proper that the Disciplinary Tribunal of that body should have power (which must, of course, be exercised in accordance with the principles of natural justice) to consider criminal offences even though they had not been dealt with by the criminal courts. In relation to this ground the Notice of Appeal states that the Judge erred in law in reaching that conclusion and, somewhat strangely I am bound to say, goes on to add that in holding as he did the Judge "was making a judicial decision of wider import than was warranted and setting a precedent that would be dangerous to be left untuned."  It is also said that the Judge had failed to consider that Counsel for the Crown "had no adequate reply to the question raised by the Court... that if the charges were proper... whey they were not being laid before a Court of Law".

13. In support of his arguments on this issue, Mr. Van Buuren submitted before us that Rule 18 of the Rules would be superfluous if the Commissioner had power under Rule 3, read with Part III, to hold an inquiry when it was alleged that a criminal offence had been committed. He contended that the legislature could not have contemplated that Rule 3(1) would empower the Commissioner to by-pass the whole law relating to criminal procedure by allowing him to inquire into and punish an officer departmentally for a crime that attracts a maximum sentence of 7 years' imprisonment under the Prevention of Bribery Ordinance. It was also argued that if the Judge had correctly interpreted the scope of Rule 3, this would be to nullify, or seriously encroach upon, the powers granted by statute to the Commissioner of the ICAC.

14. I must confess that I see nothing in these points. On the construction of Rule 18, Mr. Van Buuren's submission ignores the words I have emphasised in Rule 18(1) -

Plainly, it seems to me, this Rule is designed to cover cases where an officer has been convicted of a criminal offence in an ordinary court of law.  In common with other disciplinary codes, it enables an officer to have imposed upon him additional penalties (here set out in Rule 15) to any that may have been imposed by a court exercising criminal jurisdiction.

15. The decision whether or not to prosecute by way of criminal proceedings is ultimately in the hands of the Attorney General. The Commissioner is responsible for the institution of disciplinary proceedings under the Rules. The nature of these proceedings and the sanctions are entirely different. It seems to me impossible successfully to maintain that conduct which falls in one or other of the paragraphs of Rule 3 cannot be the subject Of disciplinary proceedings simply because it also happens to amount to a criminal offence. I think the Judge was perfectly right.

16. The Applicants' fourth ground was that the inquiry would violate Article 10 of the Universal Declaration of Human Rights which provides -

17. In respect of this matter, the Judge commented that Counsel for the Applicants had conceded that the Declaration did not have the force of law and this was indeed the position. The Notice of Appeal states that he erred in failing to consider the Applicant's submission that the Article, being merely a restatement of the practice honoured by custom in Hong Kong, was part of the law and should therefore be enforced.

18. Before us, Mr, Van Buuren again conceded that the Universal Declaration did not have the force of law in Hong Kong, but he contended that Article 10 was in effect part of the law of England (and therefore of Hong Kong) and the legislature should not be assumed, without express words, to have intended to legislate contrary to settled practice. In my view, once it is accepted that the terms of the Declaration cannot be invoked that is the end of the matter. I agree with the Judge's conclusion.

19. The final ground upon which the Applicants based their application was that they had been notified that the transcript of the evidence, witnesses statements etc. relating to the earlier criminal proceedings would be produced at the inquiry and this created a grave risk that the inquiring officer would be biased against the Applicants and they would thus be deprived of a fair hearing. Power J. concluded that this ground was entirely premature. If such a. transcript were produced at the inquiry, he, said, then it would be for the presiding officer to determine first whether he admitted it and second, if he did so admit it (or admitted part of it) the use to which it could properly be put. He held that he could not act upon the assumption that he would use it improperly and would, by such use, bias himself against the Applicants. On this ground the Notice of Appeal states that the Judge failed to consider the submission that the Applicants had a right to the relief sought if it were demonstrated that the procedure to be followed "was reasonably likely to create a bias in the mind of the inquiring of and thus deprive [them] of a fair and impartial hearing".

20. On behalf of the Applicants, the argument was advanced before us that anyone who did not have the experience, legal knowledge and training of a judge would find it impossible to close his mind to the greatly prejudicial effect the trial transcript etc. would have. It would be as likely to cause bias as would the disclosure of a defendant's previous convictions. Justice would not be seen to be done and there was a real risk that the Applicants would be deprived of a fair and impartial hearing. They should not, it is said, have to wait until the inquiry is over to seek relief on this ground. The real likelihood of bias entitled the Applicants to seek relief even before the inquiry began.

21. While I agree that if the material objected to is relied upon at the inquiry, it will have to be carefully handled in accordance with the rules of natural justice, I have no doubt that Power J.'s approach to this matter was unexceptionable and that he was justified in not granting either of the reliefs sought upon this ground.

22. I will now return to the first two grounds upon which the application for judicial review was based. I have earlier indicated my view that Colonial Regulation 62 is crucial. Indeed, I think the appeal must be decided upon what is the true construction of that Regulation. Mr. Van Buuren suggested that the Judge had not given sufficient weight to the use of the word “substantially”. He submitted that the real issue in the criminal trial was whether those charged (including the two Applicants) had taken bribes from the named persons, and this same issue would be gone into at the proposed inquiry. The disciplinary offence created by Rule 3(1) could not stand by itself it was specified conduct that brought the disrepute.  That conduct was taking bribes. Indeed, Mr. Van Buuren urged upon us, the Commissioner was seeking to punish the Applicants on the very same issue - did they take bribes.

23. During the course of argument, Mr. Van Buuren drew our attention to s.11 of the U.K. Police Act 1976 and to an article by Alan Greaves entitled "Double Jeopardy and Police Disciplinary Proceedings"[1983] Crim. Law. R. 211. Section 11 is in these terms -

Counsel wished 'to adopt what Mr. Greaves had to say at p.212 of his article -

"The words which is in substance the same as' add to the protection of a police officer in that disciplinary authorities are prevented from proceeding on a disciplinary charge which, though technically distinguishable from the criminal charge is substantially the same."

24. On the related autrefois acquit point, Mr. Van Buuren, on the authority of the speech of Lord Morris in Connelly v. D.P.P. [1964] A.C. 1254, at p.1305, pointed out that the  plea was available to a defendant if the new offence charged was "substantially the same as one in respect of which he has been acquitted or convicted or as one in respect of which he could have been convicted."  Therefore, he submitted if the Executive sought to interpret subsidiary legislation so as to deprive a citizen of such an ancient right without express words to that effect, then the judiciary, as the bulwark and protector of fundamental rights should intervene to stop it. In these circumstances, he contended, the Court could hold that there was a breach of the principles of natural justice, but if the Court did not wish to resort to that principle, it could simply hold that it was unlawful, or ultra vires.

25. A number of other authorities have been cited to us but with due respect to the careful and complete arguments of Counsel for the Applicants, I do not think it to be necessary to discuss them. Considerations which might be applicable to autrefois acquit, issue estoppel or res judicata can, it seems to me, have no direct relevance to the matter before us. Although I am bound to say that if the officers had been charged in a second trial with bribery, I find it difficult to imagine in the light of what happened earlier that a plea of autrefois acquit would succeed. As I have already indicated, our task is to construe Colonial Regulation 62, noting that it is clearly designed to prevent double jeopardy. Nor do I consider it profitable to examine s.11 of the United Kingdom Police Act of 1976 for the wording of that section is significantly different from the provision we have to apply.

26. However, I do accept that Colonial Regulation 62 is not to be given a narrow, grudging application so as to deprive it of its full significance. I remind myself that that Regulation first prohibits the institution of disciplinary proceedings in respect of a charge upon which a police officer has earlier been acquitted. It goes on to say that an officer may be proceeded against on any other charge arising out of his conduct in the matter which does not raise substantially the same issues as those on which he has been acquitted. Thus, the Regulation does not say that an officer may not be the subject of disciplinary proceedings in respect of an offence of which, or the facts led at a previous trial, he could have been convicted. And, it must be noted, the Regulation is concerned with issues and not facts. In the criminal proceedings, as we have seen, the Applicants were charged with conspiracy to obstruct the course of justice in that they and others should act contrary to their public duty as Customs Officers. As the judgment of the Court of Appeal delivered by Roberts,. C.J. makes clear the issue there was whether they had or had not conspired. In the proposed inquiry the issue will be whether or not each has individually solicited and accepted bribes. In my judgment the nature of the evidence, that is to say the facts sought to be proved, is not conclusive. The facts relied upon by the Crown in the criminal trial may be the same, or substantially the same as those that will be sought to be established at the inquiry, but this situation is not, in my view, embraced by the words employed in the Regulation. I have reached the conclusion that Power J. came to the right decision or the proper interpretation of Colonial Regulation 62.

27. For the reasons I have given I would dismiss the appeal.

Leonard, V.-P. :

28. I too would dismiss the appeal and for the reasons given by Fuad, J.A.

Hunter, J. :

29. I also agree. I think that under Regulation 62, one has to ask oneself first what were the issues raised at the criminal trial.  The answer to that, in my judgment is to be found at page 10 of the judgment of the Chief Justice, at page 70 of the record where he analyzes and sets out the various ingredients of the charge of conspiracy which the accused then faced. One only has to read those ingredients to see that they do not include a charge of bribery which is the subject matter of the disciplinary charge. I therefore likewise agree for the reasons given that this appeal fails.

Representation:

Mr. B. van Buuren (Chung, Kwan, Chan & Evans) for the Appellants.

Mr. J. Daw (Legal Department) for the Respondent.