Cheung Hin Kwan v. Commissioner of Police and Another
Read the full judgment text of CACV 370/2004 on BabelCite. This Court of Appeal judgment was delivered on 10 February 2006.
1. I agree with the judgment of Cheung JA.
Cites 1 case
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CACV 370/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 370 OF 2004 (ON APPEAL FROM HCAL NO. 92 OF 2003) BETWEEN
Before : Hon Woo VP, Cheung JA and Yuen JA in Court Date of Hearing : 13 January 2006 Date of Judgment : 10 February 2006 ______________________ J U D G M E N T ______________________ Hon Woo VP : 1.I agree with the judgment of Cheung JA. Hon Cheung JA : 2.This is an appeal by the applicant against the judgment of Yam J who dismissed his application for judicial review. Facts The disciplinary proceedings 3.The applicant is a sergeant in the Hong Kong Police Force (‘the Police’). On 29 December 1999 and 17 January 2000, he was observed by the Police to be having dinner with a senior office bearer of a triad society. Two other police officers (a senior inspector and a constable) were also present. At the end of the second dinner, these three police officers and other persons present at the dinner were arrested by the Police for their suspected involvement in attempting to pervert the course of justice in relation to a ‘wounding with intent’ case. The two dinners were video-taped. 4.When interviewed by the Police about the incident, the applicant claimed on 17 January 2000 he met the triad member accidentally and was invited to have dinner with him. He did not have dinner with him on 29 December 1999. The interview which took place on two occasions was video-taped. 5.The applicant and the two other police officers later were charged with five disciplinary offences by the Police which included two counts of associating with known triad personality and three counts of making false statements in respect of the meetings contrary to the Police (Discipline) Regulations (‘the Regulations’) Cap. 232. 6.The disciplinary proceeding against the senior inspector commenced on 15 March 2000 and he was convicted of the charges. The punishment that was ordered against him was ‘compulsory retirement with deferred benefits’. He later tendered his resignation and left the Police with effect from 1 March 2001. 7.The applicant was charged in June 2000. The first hearing of the disciplinary proceeding against him and the constable was on 26 June 2000 when it was adjourned to enable the applicant, as he was entitled to do, to find a police inspector to represent him at the proceeding. The hearings were resumed on 28 July, 4 August, 18 August and 25 August 2000 respectively but was adjourned on each occasion because the applicant was still not represented. He informed the disciplinary tribunal that he intended to look for representation. 8.On 26 August 2000 which was one day after the last adjournment the applicant injured his back while lifting weights in the fitness room at the Yaumatei Police Station. Investigation revealed he only went to the fitness room twice, once on 25 August 2000 and the other occasion on 26 August 2000. 9.As a result of the injury, the applicant was granted sick leave and unable to resume duty. The disciplinary proceeding which was to resume on 5 September 2000 was again postponed because of his injury. It was never resumed against him but had continued against the constable. 10.The constable was found guilty and on 5 December 2000 the punishment that was ordered against him was also compulsory retirement with deferred benefits. He left the Police on 17 October 2001. The injuries and its consequence 11.After the injury the applicant was asked by the Police to attend two Medical Board examinations at United Christian Hospital (‘UCH’). The first was on 29 May 2001. The report of this examination described the applicant’s infirmity as ‘severe back pain with weakness of lower limb, unable to work’. It stated that partial recovery was expected in between 18 and 24 months. It also stated that the applicant was incapable of performing the principal duties of his rank and post in his present state of health due to infirmity. 12.Another examination was conducted on 27 November 2001. The report of this examination stated that the infirmity was ‘back pain with weakness of lower limb’. It stated that no definite recovery was expected and the Medical Board recommended his early retirement. 13.The Police then decided to ask the applicant if he was prepared to retire early. According to the applicant in December 2001 he was asked by the welfare representatives from the Police who visited him at home whether he agreed to retire early from the Police. He agreed and was told by the representatives on 24 December 2001 that the report on the retirement had been submitted to the Police Personnel Wing. 14.By March 2002 he had six months of sick leave with full pay, six months of sick leave with half pay and about five and a half months of vacation leave with full pay. He used up the vacation leave in March 2002 and from 18 March 2002 onwards he did not receive pay from the Police. He lived on social security at $2,700 per month from May 2002. 15.On 22 March 2002 he wrote to the Secretary for the Civil Service and the Commissioner of Police (‘the Commissioner’) asking for ‘a satisfactory explanation’ on his position. Copies of the letter were sent to the press as well. The decision to continue with the proceeding 16.The Police then decided that the disciplinary proceeding against the applicant should be resumed and the issue of retirement would only be considered after the conclusion of the disciplinary proceeding. 17.On 4 May 2002, the officer assigned to prosecute the disciplinary proceeding met the applicant with a view to seek his consent to continue with the proceeding. Various options were offered to the applicant, including conducting the hearing by video link at his home or at any location of his choice. A ‘declaration form’ was provided to the applicant for him to use in reply. The form stated that
18.On 14 May 2002 the applicant returned the form with paragraph 2 being crossed out. He also enclosed a letter from his solicitors, indicating why he was not willing to participate in the disciplinary proceedings. The section 31 option 19.On 1 August 2002 the Police Personnel Wing decided that since the applicant had indicated that he would not attend the disciplinary hearing, it should pursue another option, namely to ask the Commissioner to consider whether the applicant should be dismissed summarily under section 31 of the Police Force Ordinance (Cap. 232) in view of the applicant’s misconduct and his refusal to participate in further disciplinary proceedings. 20.In September 2002 the Police Personnel Wing obtained a report on the background of the applicant and the disciplinary proceedings from the Regional Commander, Kowloon West. 21.A report on the recommendation to invoke Section 31 was completed on 31 January 2002. It was still being considered by the senior management of the Police when the present application was commenced by the applicant on 8 September 2003. Thereafter the Police suspended further action on this matter. The challenged decision 22.The decisions which were challenged by the applicant were :
The relief sought 23.The relief sought by the applicant were :
The issues 24.As I see it, the determination of this appeal hinges on two issues in this case, namely :
Was the decision unreasonable? 25.On the first matter, the applicant was asked by the Police Welfare Officer if he agreed to early retirement in December 2001 on medical grounds under regulation 365 of the Civil Service Regulations. This was caused by the recommendation of the report of 27 November 2001. The applicant would be entitled to immediate pension benefits if he was allowed to retire on this ground. 26.In March/April 2002 the Police decided to pursue the disciplinary proceedings first before the question of early retirement of the applicant was to be considered. 27.I do not regard this decision to be Wednesbury unreasonable. The Police said that the decision to deal with the disciplinary proceeding first was taken,
28.The disciplinary proceedings were commenced before the applicant injured himself which necessarily caused it to be adjourned. The disciplinary charges that were lodged against him were not trivial in nature. The two meetings with the triad member were video recorded by the Police. The circumstances in which he was observed to be in the company of a senior office bearer of a well-known triad society called into question his integrity as a policeman. His subsequent interview with the Police was also video recorded. Two other police officers involved in the same incident were found guilty of the same disciplinary offences and were ordered to retire early with deferred pension i.e. they would only receive the pension when they reached the normal retirement age of 55. The applicant was 36 years of age at the hearing before Yam J. If the Government was to consider his early retirement on medical grounds only, he would be able to receive the pension forthwith on retirement. This would be so despite his suspected breach of the relevant Police regulations. 29.On the other hand, under section 6(2) of the Pensions Ordinance (Cap. 89) where an officer is to retire in the public interest or ordered to be compulsorily retired by the Government in exercise of disciplinary powers of punishment then the pension that was payable would be deferred until the officer attains the age of 55 years. Obviously fairness requires his suspected breach to be taken into account first. 30.Where a set of proceedings has become oppressive or unfair the court in judicial review can grant the remedy of prohibition against the continuation of the proceedings : see R v. Cwmbran Justices Ex. p. Pope (1979) 143 JP 638(DC). In the light of the circumstances, the decision in my view cannot be described as an irrational one. Was the delay abusive? 31.The starting point is that under Regulation 9(8) of the Regulations the disciplinary tribunal may adjourn the case from time to time and an application to adjourn would be granted if it is satisfied that the adjournment ‘would serve the ends of justice’. Further the adjournment ‘shall be for a reasonable period only’. Whether a particular length of adjournment is reasonable or not must be considered in the context of the case. 32.In R. v. Chief Constable of the Merseyside Police, Ex. p. Calveley & Others [1986] 1 Q.B. 424 (C.A.), complaints were made against five police officers and an investigating officer was appointed. However, the police officers were not given the formal notice of complaint as required under the relevant police regulations until about two and a half years later. 33.Objections were made by the police officers at the disciplinary proceeding that because of the delay in informing them of the complaint their position was prejudiced in that the records relating to the incident which was the subject matter of the complaint had been routinely destroyed. This objection was rejected and the police officers were found guilty. They applied for judicial review to quash the decision. The English Court of Appeal quashed the decision of the tribunal. Lord Donaldson MR stated at page 434 that a police officer
34.This statement is accepted by Mr. Westbrook S.C., counsel for the respondents. But it must be understood in the light of the facts of that case. This case clearly showed that where delay is relied upon as the basis of abuse, one has to examine the prejudice that has occurred as a result of the delay. 35.At page 439 G, May L.J. held :
36.The same approach was taken in Herron v. McGregor and others (1986) 6 NSWLR 246 where the disciplinary proceedings against two medical doctors in respect of their treatment of patients were stayed by reason of abuse of process. One only needs to see the extraordinary length of time between the year of treatment and the year of complaint to see why McHugh JA made the following observation,
Cause of the delay 37.There is no doubt a long period of delay in the present case but its cause and effect must be examined. The delay between the first hearing of the disciplinary proceeding on 26 June 2000 to the hearing on 25 August 2000 could not be attributed to the Police. Five adjournments were granted to the applicant in order to enable him to obtain representation at the hearing. 38.One day after the last hearing on 25 August 2000 the applicant injured himself which caused a further adjournment of the case scheduled to be heard on 5 September 2000. The delay from the last hearing in September 2000 to December 2001 again could not be attributed to Police. In the light of the two medical reports, it would be irresponsible on the part of the Police to insist the proceeding to be resumed. 39.In December 2001 by reason of the Medical Board’s recommendation, early retirement for the applicant was considered. Between December 2001 and April 2002 the Police re-assessed its position on the applicant. It then decided to continue with the disciplinary proceeding. The applicant then refused to take part in it. An option given to the applicant? 40.The applicant said that he was given an option not to take part in the proceedings and he had made that choice. In my view, it is wrong to describe this as an option. Regulation 8 of the Regulations required the applicant to attend to answer the charge. The procedure that was prescribed following the denial of the charge clearly required the presence of the applicant at the proceedings. The ‘Declaration’ he signed clearly stated he was required to answer the disciplinary charges. In view of his medical condition he was given a choice of locations for the hearing to be held, namely, police stations, his home or any location of his choice and if necessary through videolink. He declined to take part in the proceedings to be convened at any of the suggested locations. The content of the Declaration must be understood in its context. Events after the applicant’s refusal to participate 41.Mr. McCoy S.C. and Mr. Lam, counsel for the applicant, argued that since the applicant had already indicated that he would not take part in proceedings, the Police must then restore the proceedings without further delay. In Wong Sun v. Insider Dealing Tribunal [2000] 4 HKC 557 the appellant was one of the implicated persons in an inquiry by the Insider Dealing Tribunal. His position from the beginning of the inquiry was that because of his health he had no desire to give evidence. He had a kidney transplant operation and he applied for an adjournment to enable him to recover and to have an opportunity to give evidence. Repeated adjournments were granted before the Tribunal decided to proceed with the inquiry. An application was then made to stay the proceedings on the ground that since the appellant’s health prevented him from giving evidence, it was unfair for the inquiry to proceed. The Tribunal refused the application. The appeal to the Court of Appeal was unsuccessful. The Court of Appeal was of the view that since the Tribunal had offered the appellant other ways of putting forward his case there was no justification for him to say that he had not been given a full opportunity to be heard. 42.In my view this case is not an authority for saying that once the applicant had indicated that he would not participate in the proceeding, the Police must immediately continue with it. 43.In the present case, faced with the refusal by the applicant to take part in the proceedings, the Police must be allowed time to consider what the next step should be. It had not remained idle. A further medical report dated 20 June 2002 was obtained from UCH. The section 31 option 44.In August 2002 the Police then considered the section 31 of Police Force Ordinance option. This section provides that,
45.A report was finally prepared for the consideration of senior management of the Police on 31 January 2003. During this period the Police had to seek legal advice on the viability of this option because section 31 had not been invoked since at least 1979. 46.The applicant was, of course, not informed by the Police that it was exploring this further option. The applicant’s solicitor had by letter dated 24 September 2002 asked the Police to complete the disciplinary proceedings and proceed with the invaliding process within the next three weeks. 47.The Police replied on 2 October 2002 that ‘action has been taken to expedite the disciplinary proceedings against Mr. Cheung (i.e. the applicant) before a conclusion on invaliding him is reached’. 48.This statement was inaccurate because at that stage it was considering the section 31 option. However, this is not a relevant factor when one considers whether the disciplinary proceedings had become abusive in nature. 49.Given the refusal by the applicant in May 2002 to take part in the proceedings and the need for caution to proceed with the section 31 option, I do not consider the gap between May 2002 and 31 January 2003 to be unreasonable. 50.However, there was clearly delay by the Police in making a decision after the report was ready. I am, however, not prepared to say, given the facts of this case, that this delay, either by itself or taken together with the events that had taken place, is such that the proceedings had by itself become oppressive and abusive and must be halted. Effect of the delay 51.It is clearly recognized that no police officer should bear the burden of having to deal with disciplinary proceedings that was commenced as long ago as 2000. However, in terms of prejudice by reason of fighting a stale case, there was none. The incidents for which the applicant was charged were video-taped. There was no allegation of records or notes being destroyed which would render the applicant not being able to mount a proper defence. In fact no prejudice in terms of defence of the proceedings was advanced by the applicant at all. The applicant’s medical condition 52.Apart from the question of delay, Yam J had also considered whether the medical condition of the applicant was such that the disciplinary proceedings should be halted. Having regard to the medical reports he decided against the applicant. I cannot see how he could be faulted. The 20 June 2002 medical report 53.The two reports of the Medical Board were sketchy. Details of the medical conditions of the applicant were found in the medical report of UCH dated 20 June 2002 which showed the following. 54.The applicant attended UCH on 26 August 2000 because of his back pain and remained there until 1 September 2000. There was improvement of the back pain and power of the lower limbs had also become better. After discharge, he continued to receive physiotherapy. 55.In October 2000 and January 2001 in follow up treatments he was advised to have CT scan with myelogram. He refused. 56.On 1 February 2001, he suffered a fall and went to the hospital. Examination showed that he was in moderate pain with weakness of right limb. No fracture or dislocation of right knee or spine was observed. He was transferred to another hospital for rehabilitation on 17 February 2001 and stayed there until 16 March 2001. He continued to receive outpatient treatment. In October 2001 he walked with crutches and the walking tolerance was 20 metres and the sitting tolerance was 15 minutes. 57.He subsequently underwent a Magnetic Resonance Imaging (MRI) on 21 st March 2002. It showed mild prolapse of the discs of L5/S1 disc and S1/S2 disc. The report stated that the pathology did not explain the symptoms in him and his condition continued to remain the same in the last follow-up on 7 th May 2002. He was basically homebound and could not return to work as a policeman yet. 58.Clearly a mild prolapse of the spinal discs would not have prevented the applicant from taking part in the disciplinary proceedings particularly when the report stated that ‘The pathology did not explain the symptoms in him’. 59.Despite his protestation of deterioration in health in September 2002, the applicant refused to be medically examined again at the invitation of the Police. An application to order him to be examined was made by the respondents in December 2003. It was successfully opposed by him. Then four days before the hearing below the applicant filed a medical report from a psychiatrist and an affirmation of his girl friend about his state of health. He was said to be suffering from adjustment disorder. Yam J. considered the medical report and was of the view that this evidence does not establish any incapacity on the part of the applicant. We agree. 60.A repetition of what had happened below took place again at this Court. At the late afternoon of the day before the appeal the applicant filed a further report from Dr. Chen the same psychiatrist who had previously examined him. The report was dated 11 January 2006. The psychiatrist said the applicant is now suffering from dysthymic disorder which is described as ‘a chronic depression of mood, lasting at least several years, which is not sufficiently severe, or in which individual episodes are not severely prolonged, to justify a diagnosis of severe, moderate or mild recurrent depressive disorder’. 61.Dr. Chen commented that is not uncommon for Adjustment Disorder to develop either Dysthymic Disorder or Major Depressive Disorder. 62.If this report is of importance to the applicant’s case then it should be obtained earlier. The respondents had no opportunity to respond to it. No explanation was offered as to why the report was only introduced at this stage. We refused to accept the report as new evidence. 63.In fact the position of the applicant as stated in his solicitor’s affirmation was that his medical condition was irrelevant to the issue in the judicial view. Mr. McCoy certainly did not regard the new evidence as of any real relevance to his case. Overview on delay 64.Mr. McCoy accepted that the judicial review must be generally adjudged as of 8 September 2003 i.e. the date of the judicial review. However he also relied on what Lord Hope of Craighead said in R v. Secretary of State for the Home Department ex. p. Launder [1997] 1 WLR 839 at 860-861,
65.He submitted that since 28 July 2000 (i.e. the second disciplinary hearing) when the Tribunal stated that ‘I cannot allow the proceeding to drag on’, five years had already passed and nothing had happened. 66.A lengthy period had indeed passed. However, as pointed out in my analysis, part of the delay of this five years was caused by the applicant as well. Further after the judicial review application had commenced in September 2003, the suspension of the action on the part of the Police cannot be criticised. The delay has no prejudicial effect on the applicant’s defence of the disciplinary proceedings. 67.However, this Court considers that the delay in hearing the disciplinary charges will have a prejudicial effect on the applicant in terms of his pension entitlement. In the event he is acquitted of the charges and the Commissioner, exercising the delegated authority, decides that he should retire on medical grounds, then his entitlement to pension (which is immediately payable) will only begin from the date of the decision. Bearing in mind that the applicant had not received any pay since March 2002, he is indeed prejudiced by the delay. Had a decision in his favour been made earlier, he would have received the pension from an earlier date. 68.This prejudice, however, is remediable. At the hearing, this Court invited the respondents to consider whether either of them would give an undertaking that in the event the applicant is acquitted of the charges and a decision is made to retire the applicant on medical grounds, his pension should commence on an earlier date. 69.By a letter dated 20 January 2006, the Commissioner gave the following undertaking on behalf of the respondents ：
70.In our view if the pension that is payable to the applicant is to begin on the date as indicated by the Commissioner, this will remove the prejudice that the applicant may suffer as a result of the delay in considering his retirement application. This being the case he should not be entitled to any remedy in respect of the delay. The continuation of the proceedings 71.As stated in the judgment of Yam J dated 4 October 2004 the Police was prepared and willing to resume the disciplinary proceedings. The applicant said that in March 2005 the Police had recharged him with the identical charges but under a new case number. He was required to attend the Disciplinary Tribunal on 19 April 2005 but he did not attend. 72.Senior Inspector Monaghan had since filed an affirmation explaining the new development. He was the prosecutor in the disciplinary proceedings. In January 2005 he was instructed that the proceedings against the applicant would be heard afresh before a new Adjudicating Officer. The reasons were :
73.Inspector Monaghan further explained that a reference number was assigned to a case. A new reference number was given so that the new Adjudicating Officer would not be referring to the previous records. It was the continuation of the same case with a new reference number. As the applicant did not attend the hearing on 19 April 2005, it was adjourned and was not restored in view of this appeal. 74.Mr. McCoy had argued that the new charges were not brought in compliance with Regulation 5 of the Regulations and that the Adjusticating Officer could only be changed on the application by the applicant himself. He submitted that the new charges were made to overcome the refusal by the applicant to take part in the proceedings that had already been started. 75.In this judicial review, this Court is not concerned with the legality of the new charges or the replacement of the Adjudicating Officer. The issue that we have to decide is whether the applicant will face two parallel proceedings to his prejudice. Given the explanation by the Police, there is no question of the applicant being asked to face two parallel disciplinary proceedings. It is for the applicant to decide how he should respond to the disciplinary proceedings after it is resumed. Conclusion 76.Accordingly on the undertaking referred to in paragraph 69, we will dismiss the appeal. Since the relief is refused on the basis of the undertaking by the Commissioner, we will make an order nisi that there will be no order on costs of the appeal and the proceedings below. The applicant’s own costs is to be taxed in accordance with the Legal Aid Regulations. Hon Yuen JA : 77.I agree.
Mr. Gerard McCoy, S.C. and Mr. Lam Shing Yin Newman, instructed by Messrs Michael Pang & Co., for the applicant Mr. Simon Westbrook, S.C., instructed by Department of Justice, for the respondents |
Cases cited in this judgment