Wu Chung Yi Eddy v. Secretary for Justice

HCAL000209/2002

HCAL 209/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 209 OF 2002

____________

____________

____________

Coram: Hon A Cheung J in Court

Date of Hearing: 26 September 2003

Date of Judgment: 14 October 2003

_______________

J U D G M E N T

_______________

1.In this application for judicial review, the Applicant seeks an order of certiorari to quash the decision of the Adjudicating Officer made in a set of disciplinary proceedings of the Hong Kong Police Force on 11 June 2002, or alternatively to quash the decision of the Deputy Commissioner of the Police Force dated 28 September 2002.

2.The Applicant was a detective sergeant in the Police Force. In early 1999, he was transferred to Unit RSDS 1 HKI. On 18 December 1999, that unit conducted an anti-illegal book-making operation and a Mr Yuen was arrested by the Applicant. Mr Yuen was released on bail on the following day. The Applicant then had two meetings with Mr Yuen after his release. Acting on information, officers from the CIB conducted surveillance on the Applicant and Mr Yuen. They were both arrested at a car park in Mid-levels whilst they had their third meeting on 30 December 1999. Their arrest was referred to the ICAC. The Applicant was released unconditionally by the ICAC on 1 August 2000 because there was insufficient evidence to prosecute the Applicant. However, Mr Yuen was prosecuted and was subsequently convicted of an offence under the Prevention of Bribery Ordinance (Cap. 201). He was sentenced to 6 months' imprisonment.

3.The Applicant nonetheless faced disciplinary proceedings arising out of his contacts with Mr Yuen. Altogether 18 charges were laid against the Applicant. Two of them (charges J and K) were later withdrawn. Charges A and B concerned the Applicant's alleged failure to inform his supervisory officer (Inspector Tai) of his meetings with Mr Yuen, contrary to paragraphs 17 and 18 of the Police Headquarters Orders. Charges C to I and L to Q covered the Applicant's alleged failure to make notes and entries in his notebook, contrary to the Police General Orders. Charge R was in respect of the Applicant's making of an allegedly false statement in a criminal investigation, contrary to regulation 3(2)(j) of the Police (Discipline) Regulations (Cap. 232).

4.On 11 June 2002, the Adjudicating Officer hearing the disciplinary proceedings delivered his verdict and judgment, in which he found the Applicant guilty of all the remaining 16 charges. He referred the award to a senior police officer who gave his award on 24 June 2002. In respect of charges A to I and L to Q, the Applicant was awarded severe reprimand for each charge whereas for charge R, the Applicant was awarded a "reduction in rank". Also, a "warning for dismissal (general) valid for 2 years" was recommended. The Applicant appealed but the Force Discipline Officer confirmed the awards on 12 July 2002. He further directed that the Applicant be served with a "warning for dismissal (general) valid for 3 years".

5.The Applicant appealed. On 28 September 2002, the Deputy Commissioner of Police dismissed the appeal but decided to increase the award for charge R from "reduction in rank" to "compulsory retirement with deferred benefit".

Charges A and B

6.Charges A and B read as follows:

"	Charge 'A':	Contravention of Police Orders
		Contrary to Regulation 3(2)(e) of the Police (Discipline) Regulations, Cap. 232
	Particulars:	Sergeant 17490 WU Chung-yi of the Hong Kong Police Force, you are charged that sometime between 1999-12-19 and 1999-12-29 in Hong Kong, you failed to inform your supervisory officer Inspector TAI Hung-kin, your two meetings with your casual contact, YUEN Chi-ming, about gambling information either before or immediately after the meetings had taken place, contrary to paragraph 17 of Police Headquarters Order No. 3 of 1999 Part 1.
	Charge 'B':	Contravention of Police Orders
		Contrary to Regulation 3(2)(e) of the Police (Discipline) Regulations, Cap. 232
	Particulars:	Sergeant 17490 WU Chung-yi of the Hong Kong Police Force, you are charged that between 1999-12-19 and 1999-12-29 in Hong Kong, you failed to record the details of your two meetings with your casual contact, YUEN Chi-ming, in a Pol. 155 and submit it to your supervisory officer, Inspector TAI Hung-kin for retention, in contravention of paragraph 18 of the Police Headquarters Order No. 3 of 1999 Part 1."

7.Ms Jay Ma, counsel for the Applicant, argues in relation to these two charges that the Adjudicating Officer was unreasonable (in the public law sense) in convicting the Applicant of the same, because Mr Yuen could not be regarded as a "causal contact".

8.In relation to this argument, it is necessary to see what Police Headquarters Order No. 3 of 1999 Part I actually says:

"DOCUMENTATION OF MEETINGS

17. Whenever possible, a Handling Officer should advise his Supervisory Officer of any intended meeting with his informer and casual contact before the meeting is held. If this is not possible, the officer should do so immediately after the meeting has taken place.

18. All contacts with an informer including a casual contact, either physical or otherwise, and details of meetings and particulars of any expenditure incurred, are to be recorded by the Handling Officer in a Pol. 155 to be submitted to the Supervisory Officer for retention in the Handling Officer's ISF as soon as practicable after the meeting, and in any case not later than 72 hours after the event. An officer who holds his own ISF will similarly complete a Pol. 155 and include it on file. The Handling Officer will only make a brief record of the meeting (e.g. date, time, area in which meeting took place and nature of information etc.) in his Police notebook to prevent important information from being unnecessarily disclosed to a third party in court should the notebook be later required for production in relation to other cases.

...

DEFINITIONS

For the purposes of this order, the following definitions apply:-

(a)	Informer
	An informer is a person who is in a position to provide information to a police officer in relation to any illegal activity, including vice, be it on a regular or infrequent basis and regardless of whether or not money is paid for the information given, but excludes complainants in criminal cases and witnesses to the same.
(b)	Casual Contacts
	Most police officers at some time in their service will be given an isolated piece of crime information by a casual contact. Such casual contacts from whom police officers are unlikely to further develop useful crime information should not be considered informers. However, should an officer further come across the casual contact, either through a pre-arranged or coincidental meeting during which useful crime information is disclosed, the latter should be regarded as an informer within the context of this order."

9.Ms Ma's argument is that in order for a person to be a casual contact within the definition in the Headquarters Order, the "crime information" that he provides must be useful. And in this regard, the police officer must be given a certain degree of discretion in deciding what is or what is not useful information. If the information is not useful, then the contact is not a "casual contact", and therefore the reporting and recording obligations in paragraphs 17 and 18 of the Headquarters Order will not be engaged.

10.Ms Ma argues on the facts of the present case that according to the evidence given in the proceedings, all that Mr Yuen told the Applicant was that there was a certain gambling activity going on in a hotel in Wanchai; no particulars and details whatsoever were supplied. Ms Ma thus submits that such a piece of crime information was a totally useless piece of information, and therefore Mr Yuen could not be regarded as a casual contact.

11.I do not accept this submission. In my judgment, the test of usefulness is only relevant in determining whether a casual contact has become an informer, as per the definition of "casual contacts". It is not relevant in determining whether a person is a casual contact. Apart from operational needs, one of the obvious reasons behind requiring police officers to report and record contacts with informers and causal contacts must be the protection of the integrity of the Police Force and the police officer himself. The introduction of the concept of "useful" crime information in determining whether a person is a casual contact would only lead to uncertainties and weaken the above rationale behind the reporting and recording requirements.

12.Moreover, as Mr Chow has submitted, paragraph 17 of the Order actually requires the handling officer to advise his supervisory officer of any "intended meeting" with his causal contact before the meeting is held. Before the meeting is held, of course the intending officer cannot tell whether any "usual" crime information would be supplied by the person he is going to meet at the meeting. The adoption of the test of usefulness in determining whether that person is a casual contact is simply unworkable.

13.Finally, in my judgment, there is simply no place in the actual wording used in the definition of "casual contacts" in the Headquarters Order for the interpretation advanced by Ms Ma, qualifying "crime information" by the adjective "useful". The definition does not say so, and there is no reason why the court should read into the definition such a qualification.

14.In short, the challenge in respect of charges A and B fails.

15.For the sake of completeness, I should mention that initially, Ms Ma sought to argue that Mr Yuen could not be an informer within the meaning of the Headquarters Order. This argument was dropped at the beginning of the hearing, as Ms Ma rightly recognized that whether Mr Yuen was an informer was quite irrelevant to charges A and B which proceeded on the footing that Mr Yuen was a causal contact.

Charges C to I and L to Q

16.These charges relate to the failure of the Applicant to make a fresh entry in his notebook at the commencement of his duty shift detailing the date, time and particulars of the duty allocated to him and to make notes of all matters pertaining to his duty, contrary to Police General Orders chapter 53-01 paragraphs 3 and 4 respectively, on various occasions.

17.The failures to make notes and make a fresh entry are not denied. All that Ms Ma argues is that there was at the material times no debriefing meeting held for the unit.

18.I must confess I fail to follow the argument at all. Police General Orders chapter 53-01 paragraphs 3 and 4 impose an absolute duty on a police officer to make a fresh entry and to make notes. The absence of a debriefing meeting is not a defence provided in paragraph 3 or 4. It is totally irrelevant to a police officer's duty of compliance with these two paragraphs.

19.The challenge in respect of the relevant charges in question must fail.

Charge R

20.Charge R reads:

"	Charge 'R':	Making a Statement which is False in a Material Particular in Connection with the Discharge by the Police Force of its Duties
		Contrary to Regulation 3(2)(j) of the Police (Discipline) Regulations, Cap. 232
	Particulars:	Sergeant 17490 WU Chung-yi of the Hong Kong Police Force, you are charged that between 2049 and 2305 hours on 1999-12-30 at Room 2332, Arsenal House, West Wing, Police Headquarters, you did make a statement to Station Sergeant 69816 NGAI Siu-yuen in the course of a criminal investigation, namely that you had told your supervisory officer Inspector TAI Hung-kin that a bookmaker YUEN Chi-ming alias 'Wu Lung' said someone operated gambling on 'Pai Kau' in a hotel, such a statement being false in a material particular."

21.In the proceedings, the Applicant gave evidence and maintained in no uncertain terms that he did tell his supervisory officer (Inspector Tai) that Mr Yuen, the bookmaker, had told him that someone was operating gambling on "Pai Kau" in a hotel, when he and Inspector Tai had tea in a restaurant in late December 1999. In other words, it was the Applicant's case that the statement that he made to the investigating officer on 30 December 1999 after his arrest was entirely true and correct. On the other hand, Inspector Tai maintained in evidence during the disciplinary proceedings that the Applicant did not tell him any such thing, and if he had done so, he (Inspector Tai) would have made an entry in his notebook to that effect.

22.Ms Ma's argument here is that the offence under regulation 3(2)(j) requires a mental element. The regulation in question reads:

"	(2)	The offences against discipline are -
		...
		(j)	making a statement which is false in a material particular in the course of his duty or in connexion with the discharge by the police force of any of its duties or functions;
		..."

23.Ms Ma argues that it is clear that the Adjudicating Officer has totally failed to consider the requisite mental element. In paragraph 10 of his summary of proceedings and judgment, the Adjudicating Officer said:

"	10.	For 'R' Charge, there were also two elements to prove:-
	(a)	That the Defaulter had made a statement to S/SGT 69816 NGAI Siu-yuen that he had told Inspector TAI Hung-kin that a bookmaker YUEN Chi-ming said someone operated gambling on Pai Kau in a hotel.
	(b)	That the statement being false in a material particular."

24.On the other hand, the mental element for the offence was specifically raised as an issue in final submission on behalf of the Applicant. Paragraph 63 of the written submission of the Applicant reads as follows:

"63. In order to secure a conviction, the Prosecution must prove beyond reasonable [doubt]:-

a)	The Defaulter had not said such words to Inspector TAI, or;
b)	Such statement that a bookmaker YUEN Chi-ming (Wu Lung) said someone operated gambling on "Pai Kau" in a hotel being false in material particular; &
c)	The Defaulter acted dishonestly when so making such statement."

25.In paragraphs 12(e) and 14 of his judgment, the Adjudicating Officer said:

"12. From the available evidence, the following facts had been established:-

...
(e)	Inspector TAI Hung-kin confirmed that the Defaulter had never informed him of the three meetings with YUEN Chi-ming during the material time nor any gambling information that YUEN Chi-ming provided.
...

14. From the available, I am convinced that the Defaulter had met Chinese male YUEN Chi-ming on two occasions during the period between 1999-12-19 and 1999-12-29. The purpose of the meetings as admitted by the Defaulter was to gather gambling information from his contact male YUEN Chi-ming. The Defaulter had not informed his supervisor Inspector TAI Hung-kin about the two meetings either before or immediately after the meetings and did not submit Pol. 155 to inspector TAI regarding these meetings. There is no doubt that the Defaulter was in breach of HQO No. 3 of 1999 Part I paragraph 17 and 18."

26.I am prepared to accept, for the sake of argument, that a mental element is required in respect of the disciplinary offence in question. In other words, it has to be established by the prosecution that the Applicant knowingly made a false statement.

27.Ms Ma prefers to say that the alleged offender must have had a dishonest intention when he made the false statement.

28.In my judgment, the judgment of the Adjudicating Officer, and in particular paragraph 10 of his judgment already extracted above setting out the elements required to be established in respect of charge R, must be read in the context of the proceedings. As outlined above, in relation to charge R, the only live issue before the Adjudicating Officer was whether the Applicant had, as he claimed, told Inspector Tai in the restaurant less than one week after his meeting with Mr Yuen took place about his meeting with Mr Yuen and the information that he had obtained from him. As I said, the Applicant insisted that he had told Inspector Tai, whereas Inspector Tai denied the suggestion. There was no suggestion whatsoever in the proceedings that when the Applicant came to give the allegedly false statement after his arrest on 30 December 1999, he made a mistake regarding the content of his statement, or was otherwise mistaken regarding his recollection of what happened a few days before when he allegedly met and spoke to Inspector Tai in the restaurant. In short, his knowledge of the falsity of the statement, if it was false, was never in issue. In those circumstances, one could easily understand why the Adjudicating Officer simply focused on the alleged falsity of the statement in the proceedings and in his judgment. Read in context, I am not persuaded that the above extracted passages in his judgment indicate that the Adjudicating Officer had forgotten or ignored the mental element in charge R, assuming that the mental element was required. In fact, as I pointed out earlier, the mental element was expressly made the subject of submission by the Applicant in his written submission.

29.Furthermore, on the facts of the present case, and given the factual dispute between the Applicant and Inspector Tai, if the Adjudicating Officer was of the slightest doubt as to whether the Applicant might have been mistaken about the content of his statement made after his arrest about his alleged conversation with Inspector Tai in the restaurant several days before, he could not have possibly convicted the Applicant on charge R. In other words, on the facts of the present case, if the Adjudicating Officer had thought it possible that the Applicant might have mistaken in his recollection of his alleged conversation with Inspector Tai in the restaurant, it would be quite inconceivable for the Adjudicating Officer not to have considered this point at all before deciding to convict the Applicant. The reality was that this was never suggested by the Applicant who had elected to give evidence before the Adjudicating Officer. He was adamant that he had told Inspector Tai about the information he had allegedly learned from Mr Yuen. There was no suggestion of any mistake in recollection at all. In those circumstances, when the Adjudicating Officer found against the Applicant on the facts and convicted him of charge R, he must have implicitly made a finding that the false statement was made knowingly by the Applicant.

30.In other words, if a mental element is required for charge R, such an element has been established on the facts.

31.In any event, insofar as may be necessary, I would go further (again on the assumption that a mental element is required for charge R) and say that on the facts as analysed above, there can be no possible doubt that the false statement was made knowingly by the Applicant. So even assuming that no such finding had been made by the Adjudicating Officer, it did not cause the Applicant any or any real or substantial prejudice at all.

32.It has been said many times, particularly recently, that the most active remedies of administrative law - declaration, injunction, certiorari, prohibition, mandamus - are discretionary and the court may therefore withhold them if it thinks fit. The court would look at the merits of the applicant's case, and the court would give due consideration to the question of whether the decision under challenge occasioned the applicant any real or substantial prejudice, or whether it would do so if no relief should be granted. See for instance, Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653; Wade & Forsyth, Administrative Law (8th ed.) 688-691 (and also the articles referred to in footnote 39 on p. 688); de Smith, Woolf & Jowell, Judicial Review of Administrative Action (5th ed.) 807-809.

33.In my judgment, and insofar as may be necessary, I would hold that this is a proper (though rare) case in which the court should exercise its discretion to withhold remedy, on the ground that the decision under challenge did not occasion the Applicant any real or substantial prejudice, and that therefore the withholding of remedy would not occasion him any real or substantial prejudice.

34.It is true that Leung Fuk Wah is a case on procedural unfairness. But I can see no real distinction between a case turning on procedural unfairness and one turning on the unlawfulness of the decision under challenge. As Wade said on p. 689 in respect of the general underlying principle in this area of the law:

"In any normal case the remedy accompanies the right. But the fact that a person aggrieved is entitled to certiorari ex debito justitiae does not alter the fact that the court has power to exercise its discretion against him, as it may in the case of any discretionary remedy. This means that he may have to submit to some administrative act which is ex hypothesi unlawful. For, as has been observed earlier, a void act is in effect a valid act if the court will not grant relief against it."

35.Therefore for all these reasons, I reject Ms Ma's argument here.

36.Ms Ma also seeks to challenge the finding of the Adjudicating Officer that the Applicant did not tell Inspector Tai about the information he had allegedly obtained from Mr Yuen at the restaurant meeting. She says that the Adjudicating Officer ought not to have preferred the evidence of Inspector Tai to that of the Applicant. She also argues that the Adjudicating Officer failed to give reasons for his finding.

37.I do not accept the argument. The factual dispute between the Applicant and Inspector Tai was a very simple one. It was a question of credibility. The Adjudicating Officer had seen and heard the witnesses. It was for him, in his fact-finding role, to make up his mind and reach a finding on the simple factual dispute (bearing in mind, of course, the applicable burden and standard of proof). Eventually, he preferred the evidence of Inspector Tai. There was, in my judgment, ample evidence to support such a finding. Furthermore, it must be emphasized that in this type of proceedings, the role of the court is supervisory rather than appellate in nature. It is not for the court to substitute its own views on the facts for that of the decision-maker's. It is only within very restricted bounds that one could challenge a factual finding made by a decision-maker in a court hearing an application for judicial review. I am not persuaded at all that this is such a case.

38.As regards the reasons given by the Adjudicating Officer, in my judgment, the reasons he gave, though brief, were sufficient for the purpose. After all, one is concerned with a lay adjudicating officer here. Certainly he or his judgment cannot be judged by the same standard as one may apply to the judgment or decision of a court of law. Moreover, as I said above, the factual dispute before the Adjudicating Officer was extremely simple and straightforward. It was for him to make up his mind on whether to believe Inspector Tai and rely on his evidence despite the Applicant's evidence to the contrary. His decision on the dispute was simply not capable of much elaboration.

39.As I said, I reject Ms Ma's argument.

40.Finally, Ms Ma also suggests that the Adjudicating Officer was "bias". It is clear from her submission that what she actually means is that the Adjudicating Officer preferred the evidence of Inspector Tai to the evidence of her client. I have already dealt with this complaint above. So far as bias is concerned, there is not a scent of evidence to suggest any actual or apparent bias on the part of the Adjudicating Officer. It is regrettable that this charge has been made at all against the Adjudicating Officer.

Order

41.In conclusion, this application for judicial review must be dismissed.

42.Both parties are in agreement that costs should follow the event. I therefore order that the costs of this application be paid by the Applicant to the Respondent; such costs are to be taxed if not agreed.

43.I would like to thank counsel for their assistance. Ms Ma has tried her best and has said everything that could be legitimately said on behalf of her client, but I am afraid she has had a very difficult if not impossible brief in this case.

Representation:

Ms Jay Ma, instructed by Messrs Foo, Leung & Yeung, for the Applicant

Mr Anderson Chow, instructed by the Secretary for Justice, for the Respondent