Lam Chi Pan v. Commissioner of Police

HCAL 93/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 93 OF 2005

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BETWEEN

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Before: Hon A Cheung J in Court

Date of Hearing: 28 October 2005

Date of Judgment: 10 November 2005

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J U D G M E N T

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1.This is an application for leave to apply for judicial review of a number of decisions made in police disciplinary proceedings against the Applicant, which resulted in his dismissal by the Commissioner of Police from the force with immediate effect on 27 May 2005.

2.Given the nature of the application that I have to decide, I will be brief with both the facts and the reasons for my decision.

3.Very briefly, the Applicant, a police constable of 6 years standing, was alleged to have been the maker of a hoax 999 call made from a public telephone booth at the Hong Kong side of the Star Ferry pier on 24 September 2003.  The caller falsely claimed that smoke was seen coming out from the Israeli Consulate.

4.According to the case against the Applicant, the Applicant was intercepted by two police constables (PW1 and PW2) immediately after he made a call at the telephone booth in question, which was, together with some other telephone booths at Star Ferry, under police surveillance to combat hoax 999 calls targeted at consulate premises.  When questioned, the intercepted person produced his police warrant card, and when asked as to why he had used a tissue to cover the receiver whilst making the call, he explained that it was because of fear of SARS.  While all this was going on, the police constables’ attention was distracted by another male person who was walking towards the telephone booth, looking as if he was going to make a call there.  In those circumstances, the police constables failed to take down the name or police number of the intercepted person who was simply allowed to go.  But the second man who approached the booth did not use the telephone.  Shortly thereafter, the two police constables were notified on radio that a hoax telephone call had just been made from the telephone booth in question.

5.On the following day, in two separate identification parades, both PW1 and PW2 successfully identified the Applicant as the person intercepted by them the day before.

6.The Applicant was charged with a number of disciplinary offences in the disciplinary proceedings.  After hearing, he was convicted of one charge (charge A), namely that he had made a hoax call to the 999 console operator saying that there was smoke seen at the Israeli Consulate, such act being conduct calculated to bring the public service into disrepute, contrary to regulation 3(2)(m) of the Police (Discipline) Regulations (Cap. 232).  He was at first punished with “severe reprimand” and “compulsory retirement with deferred benefits”.  Eventually, the punishments were increased to “severe reprimand” and “order to resign forthwith, without salary in lieu of notice”.  His appeal to the Commissioner of Police was unsuccessful.  He did not resign and that resulted in his dismissal on 27 May 2005 from the police force as well as forfeiture of his earned leave. 

7.In this application, the Applicant seeks leave to apply for judicial review of the relevant decisions, challenging both conviction and punishment.

8.The form 86A has raised a number of grounds in support of the application.  They were amplified in counsel’s written submission.  During the hearing, Ms Yeung, acting for the Applicant, focused her arguments on two main points.  I will deal with the two points first before dealing with the other points.

9.Counsel’s first main point was that the police had failed to carry out separate or further investigation into the disciplinary charge in question before the hearing, but simply relied on the criminal investigation of the same incident, which was carried out in relation to the criminal offence of “wasteful employment of the police by knowingly making to any person a false reporting tending … to give rise to apprehension for the safety of any person or property…”:  section 91(2) of the Criminal Procedure Ordinance (Cap. 221).  Counsel argued that “it was the duty of the force to investigate possible disciplinary offences”:  Fu Kin Chi v. Secretary for Justice (1997-98) 1 HKCFAR 85, 100 F/G.

10.Counsel argued that there are crucial differences between the criminal offence and the disciplinary charge.  She said that “calculated to” in the disciplinary charge means “likely to”, and furthermore, a mental element of intention or recklessness is required to prove the disciplinary offence.  She therefore argued that the lack of further investigation prior to the disciplinary hearing had disadvantaged her client in relation to these crucial differences, on which, in effect, no investigation had been carried out.

11.I do not think this argument is, even upon further investigation or consideration, arguable at all.  The Applicant had a full opportunity to defend himself at the hearing, as he did through his defence representative.  He had ample opportunity to test the prosecution’s case and to put the prosecution to proof of its case, and he had the full right to elect to give evidence or to maintain his silence at the hearing.  Through his defence representative, he could and did make submissions to persuade the adjudicating officer not to convict him.  If through lack of investigation, a certain crucial element in the charge had no or insufficient evidence to support, that would only work to the advantage of the Applicant.  I cannot see how the Applicant can complain in those circumstances.

12.Moreover, the Applicant has through counsel maintained with this Court that he had not made any call (still less a hoax call) from the telephone booth in question at the material time, and he was not the person intercepted by the two police constables at Star Ferry.  In those circumstances, in my judgment, any talk about the mental element of the disciplinary charge is wholly immaterial and academic. 

13.The Applicant’s stance that he was not the person who had made a call from the booth and he was not the person intercepted  necessarily precluded him from offering any explanation about the call (and even up to this stage no such explanation has been offered).  Given that stance and the nature of it, once the Applicant’s story was disbelieved and once the adjudicating officer made the further finding that not only was he the person who had made a telephone call from the booth, his call was indeed the hoax call in question, the question of mental element or the meaning of “calculated to” would become simply irrelevant.  For on those facts and findings, there can be no doubt that the maker of the hoax call, ex hypothesi the Applicant – a serving police constable, must have known that his conduct, if known to others, would be likely to bring the police force into disrepute, and furthermore, he must have either intended that consequence or been reckless as to it.  There is no suggestion whatsoever that the Applicant, a serving police constable of six years’ experience, was suffering from any mental condition at the time or was of such intelligence that would not have allowed him to appreciate the natural implications and consequences of what he was doing.

14.In this context, Ms Yeung raised a possibility, which I am afraid is a wholly fanciful one, that the Applicant may have made the call to test the efficiency of the 999 console only, and thus lacked the necessary mental element to commit the disciplinary offence.  In my view, that is absurd.

15.Ms Yeung even went so far as to suggest that if the Commissioner of Police had wanted to so test the efficiency of the 999 console – by making a false call, the logic behind the conviction of her client would also lead to the (ex hypothesi) wrongful conviction of the Commissioner.  That argument does not deserve serious consideration.  All I need say is that the Applicant was not the Commissioner of Police.  Ms Yeung’s further argument that there cannot be one law for police constables and another law for the Commissioner of Police equally does not merit any further consideration.

16.In short, I totally reject Ms Yeung’s first main argument.

17.Counsel’s second main argument was that the adjudicating officer erred in accepting the evidence of the two police constables and finding that a case beyond reasonable doubt had been proven against the Applicant.  Given the nature of the criminal offence which is a relatively minor one (although if the offender happened to be a police officer that would have very serious disciplinary consequences – see below), I am not sure whether on a proper reading of Tse Lo Hong v. Attorney General [1995] 3 HKC 428, which counsel relied on, the adjudicating officer must apply the criminal standard of proof.  (Counsel did not refer me to more recent local or English authorities having a bearing on this subject.) What the Court of Appeal has said in Tse Lo Hong was simply that the standard of proof must be commensurate with the gravity of the charge.  However, all this is academic because the adjudicating officer did adopt the criminal standard in convicting the Applicant. 

18.Counsel’s point was that PW1’s evidence was inconsistent as to time and durations (and other matters), and generally not credible or reliable.  As to PW2’s evidence, counsel’s only argument was that her evidence that no one had used the telephone booth at the material time, particularly between the time of interception of the police officer who produced his police warrant card and the time when the two police constables were informed on radio that a hoax call had just been made from the telephone booth, was not based on facts but her own deduction only.

19.Counsel therefore said that there were reasonable doubts on the facts, and her client should have been acquitted.

20.Again in my judgment, even upon further investigation or consideration, all this does not amount to an arguable ground of challenge.  First, generally speaking, in judicial review proceedings, the court does not sit on appeal from the decision under challenge.  It only plays a supervisory role.  It is concerned with the legality rather than the merits of the decision, with the jurisdiction of the decision-maker and the fairness of the decision-making process rather than whether the decision was correct: Kemper Reinsurance Co. v. Minister of Finance [2002] 1 AC 1, 14H (per Lord Hoffmann).

21.Secondly and in any event, on the facts and evidence of the case, in my judgment, there are three crucial facts:

(1)   that within about thirty minutes prior to the making of the telephone call from the booth in question by the person who was intercepted by the two police constables after the call, no one had used the telephone booth;

(2)    that during the interception, no one had used the telephone booth – a so-called “second suspect” had got near the booth and stood there for a very short period of time but he did not use the telephone; and

(3)   that from the time when the second suspect walked away from telephone booth up to the time when the two police constables received a radio call from PW6 telling them that a hoax call had just been made from the telephone booth, no one had used the telephone booth.

22.In my judgment, the above three facts, when established, were sufficient to prove beyond reasonable doubt that the person intercepted was the person who made the hoax call.  Plus the further fact that the Applicant was identified by the two police constables on the following day at two separate identification parades as the police officer who had been intercepted and who had produced his police warrant card during the interception.  In my view, it is beyond reasonable doubt that the Applicant was the one who had made the hoax call.

23.The criticisms against PW1’s evidence mainly focused on the timing of fact (1) and fact (3), and whether fact (1) was true.  But on a fair reading of his evidence, after some initial confusion (see below), PW1 was adamant in his evidence that facts (1) and (2), if not (3), were indeed true.

24.The adjudicating officer was fully aware of the inconsistencies and confusion in PW1’s evidence.  He expressly took that into account.

25.As for PW2’s evidence, she was clear and certain about all the three facts (1) to (3) set out by me above.  The only point made against her evidence was in relation to fact (3), i.e. that she had said in one of her earlier statements that she was not “certain” that nobody had used the phone booth during the period after the second suspect had left and before they received the radio call from PW6.  On a closer look of the facts, this is a non-point.

26.PW2’s evidence was that after the second suspect had left, she and PW1 walked back to their observation position (a coffee shop) with her back towards the telephone booth.  She walked slowly and turned to look at the telephone booth every several seconds.  She did not see anybody using the phone booth.  That was why when she gave one of her statements, she said she could not be 100 % certain that nobody had used the telephone booth while she was walking back to her observation position.  She could not be sure because quite obviously she did not have eyes on her back.

27.Unfortunately, that led to an allegation that her evidence that no one had used the telephone booth during the material time was a mere “deduction” on her part.

28.I do not think the case turns on whether her evidence should be called a deduction.  What is important is to put her evidence in context.  The hoax call lasted 18 seconds according to undisputed evidence.  Her evidence was that while she was walking to the coffee shop with her back facing the telephone booth, she turned to look at the telephone booth behind her every several seconds. 

29.In those circumstances, the inevitable conclusion or inference to be drawn must be that the hoax call which lasted 18 seconds could not have been made during the very short period of time between the departure of the second suspect and the time when the two constables received the radio call from PW6 whilst walking back to the coffee shop.

30.The adjudicating officer specifically said that he found PW2 to be a credible witness and he accepted her evidence.

31.The identifications of the Applicant by the two police constables at the identification parades were not seriously challenged, and they were accepted by the adjudicating officer.

32.In my judgment, there was therefore ample evidence to justify the findings and conviction made by the adjudicating officer.  Even if this Court should go to the merits of the case, there is no arguable ground of challenge.

33.Having thus disposed of counsel’s two main points, I will deal very quickly with the remaining points appearing in the form 86A or counsel’s written submission.  I see nothing in the complaint that the adjudicating officer had “unduly influenced the course of the proceedings” during PW1’s examination by the Applicant’s defence representative.  I have read the relevant part of the transcript of the proceedings when the adjudicating officer said more than ten times “no” during a line of questioning in the cross examination of PW1.  There is nothing in it. 

34.Moreover, as has been repeatedly pointed out by the court, disciplinary proceedings are quasi proceedings of a domestic tribunal where the proceedings can be said to be informal in contradistinction to the formality of judicial proceedings; the “defaulter” should be given a fair opportunity of hearing what is alleged against him or her and of presenting his or her own case; and the correct approach is whether, reading the evidence as a whole, there is reason to believe that the defaulter was generally disadvantaged which could have rendered the hearing unfair to him or her: To Chun Fung Albert v. Medical Council of Hong Kong [2002] 1 HKC 571, 580B and 582 H/I to 583B (per Le Pichon JA); Cheuk Fan Ming v. Commissioner of Correctional Services, HCAL 134/2004, Hartmann J (28.6.2005), para. 30.

35.Reading the relevant part of the transcript as a whole and looking at the entire proceedings, I am wholly satisfied that the Applicant has had a fair hearing and an adequate opportunity to defend himself.

36.As regards the allegation that PW1 had changed his evidence about whether anyone had used the telephone booth in question prior to the person who was subsequently intercepted, I think, on a fair reading of the transcript, PW1 was referring to all the telephone booths which were under surveillance when he first said that they had been used by some foreigners and women, and when he realised that the focus of the examination was on the particular booth in question he corrected himself and pointed out that in relation to that particular booth, nobody had used it during the period of about 30 minutes prior to its use by the man who was subsequently intercepted.

37.I do not think there has been a change in evidence.  In any event, as mentioned above, the adjudicating officer was fully alive to the alleged inconsistency.

38.As for the peculiar pronunciations of certain words in Chinese that were observed by the adjudicating officer, I think the adjudicating officer, even as a layman, was entitled to make the observation.  He had heard the tape recording of the hoax call and he had watched the videotaped interviews of the Applicant.  He noticed certain pronunciation oddities common to both the tape recording and the videotapes.  He was, in my judgment, quite entitled to make the observation even as a layman.  The more important thing is that that did not form the substantial, let alone only, basis for his findings and conviction of the Applicant.  As I said, there was more than sufficient evidence to justify the same.  With or without the pronunciation oddities, the adjudicating officer was quite entitled to, as he did, convict the Applicant of the disciplinary charge. 

39.Counsel’s reference to a Turnbull direction is wholly unhelpful, which, even in a criminal case, only applies to a situation where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken: Archbold Hong Kong 2005, para. 14-2 et seq.  As has been observed above, one is not concerned with a criminal trial, but proceedings before a disciplinary tribunal, and the relevant yardstick is overall fairness to the defaulter.

40.As to the argument that it was illogical for the adjudicating officer to convict the Applicant of charge A and yet to acquit him of charges B, C, D and F, which all related to the same incident, this is a non- point because the Applicant was acquitted of those other charges only because he was not “in the course of [his] duty”, which was an essential element to those charges, when he was interviewed during which the allegedly false statements were made and when he made his notebook entry which turned out to be false.  There is no contradiction between the conviction and the acquittals.

41.Then it is said that the adjudicating officer’s findings were based on an inaccurate English record of the evidence given at the hearing.  First, I do not accept that the record as kept was inadequate, having had the benefit of reading the transcript in question. 

42.Secondly, the adjudicating officer was not only the person who had kept the record, he was also the person who had presided over the hearing and had heard first-hand the evidence of the witnesses and the submissions by the parties.  He must have made his findings and come to his conclusion based on the evidence that he has heard and observed, as well as the arguments that have been presented before him. 

43.There is nothing in the point.

44.It is said that the punishments were “unduly oppressive”.

45.First, punishment is for the disciplinary tribunal, not the court, unless something has gone seriously wrong and an irrational decision is made: Tsang Hing Shing v. Commissioner of Police, CACV 192/2003 (17 December 2004), para. 32(3)(per Ma CJHC); Au Yeung Kwok Hing v. The Attorney General for and on behalf of the Commissioner of Police, Civil Appeal 205/1994 (7 February 1995), pages 22-23 (per Nazareth VP).

46.As I said in Chu Ping Tak v. Commissioner of Police [2002] 3 HKLRD 679, 696A, “unless the sentence or punishment is so out of proportion to the offence in question, as to be perverse or unduly oppressive, I see no ground for intervention.”

47.As I mentioned above, the conduct involved in the present case could give rise to a relatively minor criminal offence.  However, it is an entirely different matter if the same was committed by a police officer and if he was charged with a disciplinary charge, as in the present case.  In my judgment, what has happened was a very serious disciplinary matter. 

48.The sentencing officer (the Force Discipline Officer) has already borne in mind the Applicant’s service record and other mitigation circumstances.  He has come to his conclusion, which was confirmed on appeal.  I would not describe the punishments, i.e. severe reprimand and compulsory retirement, as perverse or unduly oppressive.  As the Applicant refused or failed to resign as per the order made, the decision to dismiss him formally with forfeiture of his earned leave could not be criticised at all.

49.Again there is nothing in the challenge.

50.Then it is alleged that the Applicant’s defence representative was misunderstood when he said in final submission that the Applicant did not challenge the allegation that he was indeed the police officer intercepted at Star Ferry by the two police constables.  Somehow from that premise, it is contended that the adjudicating officer was biased. 

51.In my judgment, that is a complete non sequetur.  In any event, reading the defence representative’s final submission as a whole, I do not think the adjudicating officer has misunderstood his position. 

52.More importantly, with or without the defence representative’s concession that the Applicant was indeed the person intercepted at Star Ferry, on the unchallenged identification evidence, there can be no reasonable doubt that the Applicant was indeed the police officer who had been intercepted outside the telephone booth in question.

53.Then there are various minor criticisms regarding the identification procedures.  In my view they are wholly inadequate as grounds for mounting a judicial review challenge.

54.These are all the points or main points raised by or on behalf of the Applicant in the form 86A, counsel’s written submission as well as her oral submission during the ex parte hearing.  I have considered them all.  In my judgment, even upon further investigation or consideration, none of them is arguable. 

55.The application for leave is dismissed with no order as to costs.

Ms Jackie L S Leung, instructed by Messrs Gary K W Tam & Co, for the Applicant