Chiu Hoi Po v. Commissioner of Police

HCAL 105/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS

NO. 105 OF 2003

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Before: Hon Chung J in Court

Date of Hearing: 15 December 2005

Date of Handing Down Judgment: 26 April 2006

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J U D G M E N T

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Introduction

1.This is an application for judicial review.  The administrative decisions referred to in the “Notice of application for leave to apply for judicial review” (“Form 86A”) are:-

(a)     the award of severe reprimand and warning for dismissal (general) valid for 12 months ;

(b)    the conviction and award of severe reprimand together with compulsory retirement with deferred benefits.

Leave to do so was given on 21 October 2003.

2.The decision set out in para. 1(a) above has not been sufficiently identified in the Form 86A.  But judging from the background, it should be the one made by the respondent on 21 July 2000 which ordered a warning of dismissal (general) effective for 12 months to be issued.

3.The decision set out in para. 1(b) above has not been sufficiently identified in the Form 86A either.  It should be the one made by the respondent on 25 August 2003 which ordered the applicant’s compulsory retirement with effect from 29 August 2003.

4.On 7 October 2005, the applicant applied for leave to amend the Form 86A.  In essence, the application seeks to put forth new grounds in support of this application which are:-

(1)     the disciplinary proceedings amounted to an abuse of process and were in breach of natural justice.  This is because the applicant’s conduct was not such as should justify disciplinary proceedings to be commenced;

(2)     the disciplinary proceedings lacked legal basis;

(3)     the disciplinary conviction is unreasonable;

(4)     reg. 9(11) and (12), Police (Discipline) Regulations (Cap. 232A) are inconsistent with Art. 35, Basic Law in that they deprive the applicant of his right to be represented by lawyers in his defence at the disciplinary hearing;

(5)     insofar as the respondent’s decision was founded on the disciplinary conviction, the respondent’s decision is also invalid on the above grounds.

The applicant confirmed at the hearing on 15 December 2005 the new grounds are to replace those set forth in the Form 86A.

Background Facts

5.The applicant was a police constable who joined the Hong Kong Police in November 1992.  He was compulsorily retired on 29 August 2003.

6.While serving with the Hong Kong Police, the applicant faced several disciplinary proceedings.

7.The first was KT DR 9/98.  In August 1999, allegedly he drove his private car while in police uniform without his superior’s permission.  The disciplinary conviction and sentence were set aside by the respondent in July 2000.

8.The second was KT DR 7/99.  While off-duty, the applicant was issued a fixed-penalty ticket for illegal parking.  He used foul language against the ticket issuing officer.  The disciplinary conviction was upheld by the respondent but the sentence was reduced to warning for dismissal (general) effective for 12 months.  This is the decision referred to in para. 1(a) above.

9.The third was SSPO DR 10/02.  When the applicant applied to the Transport Department to renew the licence of his vehicle, he issued a cheque for payment of the licence fee.

10.The amount payable was $5,794 but, when the cheque was issued, there was only about $100 in the bank account.  A few days later, $7,200 was deposited into the account but $4,900 and $2,166.20 were withdrawn by internet banking and cheque payment; the bank balance became about $33.  As a result, the Transport Department cheque was dishonoured.

11.From 24 February 2000 onwards, there was communication (both over the telephone and by mail) regarding payment between the applicant and the Transport Department at first, and the Department of Justice subsequently.

12.In answer to the letter dated 25 September 2000 from the Department of Justice to demand payment, the applicant wrote on 29 September 2000:-

“就有關此信我有幾點問題就貴司解答 :

(a)   :    若果我在14天內未向運輸署繳付上述款項 $5,794 元，貴司依什麼法例起訴我。(庫務條例)

(b)   :    我不明白運輸署在 2000 年 2 月 9 日，發覺支票不能[兌]現運輸署點解將本人的車輛牌照在電腦上取消。若果不能取消運運輸署根據什麼法例。(道路交通條例第幾章第幾節)

(c)   :    若果我在 14 天內向運輸署繳付上述款項 $5,794 元，我的車輛牌照在那日期內生效。

(d)   :    我不明白運輸署將我本人的人牌 I/D C 613668(9) 放在 Watch List 上。”.

In relation sub-para. (b) of the letter, although the applicant appeared to complain that the vehicle licence was cancelled, this must have been a typing mistake.  This is because the vehicle licence was in fact never cancelled.  I rather understand the applicant to query why the Transport Department did not simply cancel the vehicle licence when it discovered the applicant’s cheque was dishonoured.

13.The above letter was replied to in November 2000.  Failing payment, a claim was lodged with the Small Claims Tribunal in February 2001.  By consent, an award was made in the Government’s favour in March 2001 by the Tribunal.

14.In March 2001, the applicant also issued another cheque to pay for the licence fee of his vehicle.  That cheque was again dishonoured.  The licence fee was finally paid in July 2001.

15.Subsequently, disciplinary proceedings were commenced in connection with the said two incidents of non-payment to the Transport Department.  On 9 May 2003 the Senior Police Officer affirmed the conviction of two out of three disciplinary offences.  He also imposed the sentence of severe reprimand and compulsory retirement with deferred benefits.  These were affirmed by the Force Disciplinary Officer on 6 June 2003.  On 25 August 2003 the respondent dismissed the applicant’s appeal.  These decisions should be the ones referred to in para. 1(b) above.

Grounds of Application

16.The grounds of application summarised in para. 4(1) to (5) above can be grouped into two.  The grounds summarised in para. 4(1) to (3) above are concerned with whether the applicant’s conduct was such that a disciplinary proceeding (and the resultant disciplinary conviction) could properly be founded.  The ground summarised in para. 4(4) above is concerned with an alleged contravention of Art. 35, Basic Law and depends on the true and proper construction of that article.  The ground set out in para. 4(5) above stands or falls with the applicant’s arguments relating to those grounds summarised in para. 4(1) to (4) above.

Ground (1): It was Abusive, Unfair, Unreasonable and/or Unlawful to Commence Disciplinary Proceedings

17.The two disciplinary offences out of which this application arose were, in short,

“[the applicant] on [9 February 2000 and 19 March 2001 respectively] … did present [cheques respectively issued by him on 2 February 2000 and 16 March 2001 in the respective sums of HK$5,794 and HK$6,506.30] to [the Transport Department] to meet [his] immediate payment obligation arising from the issue of the annual vehicle licence of [his] private car .. but which [cheques were] subsequently returned and unpaid due to insufficient fund in [his] bank account, and that [his] said payment [obligations were] only settled [later], such act being conduct calculated to bring the public service into disrepute”.

The said acts were said to be contrary to reg. 3(2)(m), Cap. 232A:-

“The offences against discipline are … conduct calculated to bring the public service into disrepute”.

The word “calculated” in reg. 3(2)(m) has been defined in the Discipline Manual as:-

“… simply means ‘likely’.  In deciding whether a conduct is ‘likely’ to bring the public service into disrepute, a person considering the suitability of the charge should put himself in the position of the proverbial ‘reasonable citizen’ of Hong Kong and then ask himself whether the police officer’s conduct would be likely to lower the reputation of the public service in the mind of that reasonable citizen.  Or, to put it in another way, an officer should ask himself :

‘Has the officer’s proven conduct fallen short of the standards of behaviour which a reasonable member of the public has a right to expect from officers of the Hong Kong Police Force?’”

The Discipline Manual continues:-

“For a ‘Conduct calculated to bring the public service into disrepute’ charge there is no need for the public to be present, that is, the conduct does not necessarily have to be witnessed by a member of the public.  It is enough for the [prosecuting officer] to establish, and the [disciplinary tribunal] to be satisfied, that the conduct from which the complaint has arisen falls below the standards of behaviour that the public has a right to expect of police officers”.

18.The essence of the disciplinary tribunal’s reasons to convict the applicant of the above offences were:-

“… 對於違紀者在簽發有關支票時是否有意圖去發出壞票這一點，我對此有些疑問，但是 … 我在無合理疑點的情況下信納，當他簽發該兩張有關的支票時，他並沒有以應有的謹慎，確保支票可以兌現”;

and:-

“違紀者稱由於[各種原因] ……，故此導致他遲了結清這一次未繳付的款項。對於這些指稱，我並不信納。相反， … 我在無合理疑點的情況下信納違紀者拖延繳清款項是他蓄意的行動 … ”;

and:-

“違紀者 … 的最後抗辯理由是沒有證據顯示他是刻意致使公共服務聲譽受損。這抗辯的理由定當不能成立，在警察規例第3(2)(m)條刻意致使只是指「相當有可能」，參看朱炳德（譯音）訴警務處處長（高院上訴許可訴訟２００１年第３６７２第４５段）”.

19.Several labels have been put by the applicant onto the allegedly defective disciplinary proceedings: see para. 4(1) to (3) above.  Irrespective of precisely which of those was/were the correct label(s), the basis of his complaint in this application is this: issuing cheques which were subsequently dishonoured was conduct of a purely personal nature.

20.From this starting point, the applicant contends that the dispute between the applicant and the Transport Department regarding the incidents of non-payment was accordingly only concerned with a simple civil debt (or a loss) which could (and should) be recovered according to law (the Transport Department has in fact lodged such a claim with the help of the Department of Justice).  The Transport Department has abused its position when it informed the Hong Kong Police of those incidents.

21.But the correctness (or otherwise) of the Transport Department’s action is irrelevant to this application.  What is relevant is whether the disciplinary conviction should be reviewed by the court.  The applicant’s complaint regarding this is that the disciplinary tribunal has considered irrelevant matters and/or failed to consider relevant ones:-

(a)     it failed to take into account no criminal charge was brought against the applicant;

(b)    its conclusion regarding why the cheques were dishonoured was speculative.  It also failed to take into account the applicant’s explanation about the lack of funds in his bank account;

(c)     it failed to take into account the applicant had not delayed payment after the cheques were dishonoured.  It also failed to take into account the applicant was legally entitled to defend the claim in the Small Claims Tribunal;

(d)    its understanding of the decision in Chu Ping Tak Tim v. Commissioner of Police [2002] 3 HKC 663 is wrong.  Whether an act is “calculated” has to depend on the facts of each case.  That word means “likely to” according to Chu Ping Tak Tim (see para. 30, 31 and 45 thereof).

22.I agree with the respondent that none of the above has merit.

23.The meaning given to the word “calculated” by the Discipline Manual (quoted above) is consistent with the decision in Chu Ping Tak Tim (see the paragraphs in the decision quoted in para. 21(d) above).  I do not find the disciplinary tribunal to have misunderstood that decision.  On the contrary, from the third passage quoted in para. 18 above, it has correctly understood and applied the relevant test.

24.The fact that the applicant has never faced criminal proceedings must have been obvious to the disciplinary tribunal.  It was in fact alluded to by the applicant in his written submission to the disciplinary tribunal.  In any event, in light of the disciplinary tribunal’s findings in support of the disciplinary conviction (also quoted above), whether there was criminal prosecution was irrelevant.  The first finding was the applicant was imprudent in failing to ensure there was adequate funds when issuing the cheques.  The other finding was he deliberately delayed payment after the cheques were dishonoured.  It does not appear that either of these could amount to any criminal offence.

25.Based on the materials placed before it, the disciplinary tribunal was completely entitled to make the findings in support of the conviction.  In relation to the finding of imprudence, the disciplinary tribunal has expressly mentioned the applicant’s explanation.  Hence, this could not have escaped the disciplinary tribunal’s attention.  In relation to the finding of deliberately delaying payment, I note in particular the totally futile questions raised in the applicant’s letter dated 29 September 2000.  Not only were the questions futile, they were never pursued again.  Instead, the applicant later agreed to an award being made against him when he appeared before the Small Claims Tribunal.

26.Finally, the respondent correctly referred to a number of decisions in which judicial review applications were refused where the applicants complained that they were convicted for matters which were not criminal in nature and/or unrelated to their duties:-

(1)     Fan Lok Man v. Commissioner of Police, HCAL 3486/2001 (2 November 2002) (gambling in Macau while off-duty and borrowing from loan sharks);

(2)     Lam Chi Pan v. Commissioner of Police, HCAL 93/2005 (10 November 2005) (hoax call to “999”);

(3)     Sit Wai Lok v. Commissioner of Police, HCAL 69/2004 (20 June 2005) (using foul and rude language for about 2-1/2 minutes when calling “999”).

Ground (2): Contravention of Art. 35, Basic Law

27.This ground is solely concerned with the constitutionality of reg. 9(11) and (12), Cap. 232A.  Those provisions stipulate that:-

“(11)      A defaulter may be represented by-

(a)     an inspector or other junior police officer of his choice; or

(b)     any other police officer of his choice who is qualified as a barrister or solicitor,

who may conduct the defence on his behalf.

(12)       Subject to paragraph (11), no barrister or solicitor may appear on behalf of the defaulter”.

28.On the other hand, Art. 35, Basic Law provides:-

“Hong Kong residents shall have the right to … choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts … ”.

29.Relying on decisions such as:-

(a)     New World Development Co. Ltd. and Others v. Stock Exchange of Hong Kong Ltd. [2005] 2 HKC 506;

(b)    Chik Po Kee v. Vocational Training Council and Others, HCAL 59/2005 (6 December 2005),

the applicant argues that the disciplinary tribunal falls within the meaning of the words “the courts” in Art. 35, Basic Law.  Accordingly, insofar as reg. 9(11) and (12), Cap. 232A forbid the availability of legal representation to defaulters (including the applicant), they are unconstitutional because they are inconsistent with that article.

30.However, this ground cannot stand in view of the recent decision of the Court of Final Appeal in New World Development (on appeal from the court of appeal)(FACV 22/2005) where it was held that the words “the courts” only mean courts of law, that is, the Hong Kong Judiciary.  In the course of so concluding, the Court of Final Appeal said:-

“The question whether the Disciplinary Committee is “a court” within Art 35’s reference to “the right to ...... choice of lawyers ...... for representation in the courts” is first and foremost a question of constitutional interpretation.

The Court’s approach to that task is explained in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211.  As Li CJ stated:

“The courts’ role under the common law in interpreting the Basic Law is to construe the language used in the text of the instrument in order to ascertain the legislative intent as expressed in the language.” (at 223) 

In doing so, the courts “do not look at the language of the article in question in isolation” but consider the language “in the light of its context and purpose … ” (para. 38 and 39);

“It is therefore entirely clear that when, in such Articles [that is, Art. 2, 19, 80,  and 81], the Basic Law refers to ‘the courts’ it is referring to the courts of judicature: the institutions which constitute the judicial system, entrusted with the exercise of the judicial power in the HKSAR.  I will refer to them simply as ‘courts of law’ … 

…

How does Art 35 fit in with those provisions?  …

There are two dimensions to Art 35 that should be noted for present purposes.  In the first place, it lays down constitutional rights which need have nothing to do with court proceedings …

…

What is of prime relevance to this appeal is the second dimension of Art 35.  As appears from its language, Art 35 is also concerned with entrenching the individual’s rights in relation to ‘the courts’ …

This is a crucial additional feature of the constitutional architecture of the Basic Law in relation to the judicial system of the Region.  Art 35 ensures that the fundamental rights conferred by the Basic Law as well as the legal rights and obligations previously in force and carried through to apply in the HKSAR are enforceable by individuals and justiciable in the courts.  It gives life and practical effect to the provisions which establish the courts as the institutions charged with exercising the independent judicial power in the Region.  This dimension of Art 35 is therefore concerned with ensuring access to the courts for such purposes, buttressed  by provisions aimed at making such access effective.  The ‘courts’ in this context are plainly the courts of law.  They are the same bodies as those referred to in the other provisions of the Basic Law discussed above.” (para. 38, 39, 45, 47, 48, 49 and 50);

“Therefore, to the extent that the judgments in Dr Ip Kay Lo Vincent v Medical Council of Hong Kong (No 2) [2003] 3 HKC 579, and A Solicitor v The Law Society of Hong Kong (CACV 302/2002 Woo VP, Cheung JA and Burrell J; 18 February 2004), hold otherwise, they are wrong and should not be followed” (para. 89).

31.By virtue of the Court of Final Appeal’s said decision, there is no inconsistency between reg. 9(11) and (12), Cap. 232A and Art. 35, Basic Law.

Conclusion

32.To conclude, this application is refused.

Other Matters

33.Apart from the issue relating to the constitutionality of reg. 9(11) and (12), Cap. 232A, the applicant has not put forth additionally any argument regarding procedural unfairness arising from the lack of legal representation (or, indeed, arising from whatever other reason(s)).

34.But even if any such unfairness be contended, I would still have found that there is no merit in the argument.  In this connection, I should point out that the respondent relies on Lam Siu Po v. Commissioner of Police, HCAL 7/2003 (23 August 2005), para. 52 to 69 (especially para. 60 to 69).  For ease of reference, they are set out below:-

“60.   If the matter had been free from authorities, I would have concluded that the police disciplinary tribunal is not a ‘court’ referred to in Article 35 either.  However, the respondent sensibly recognises the above court of appeal decisions are binding on this court.  It is however argued that a police disciplinary tribunal, being a tribunal constituted exclusively to deal with disciplinary matters of a discipline force, is in a unique category.  This kind of tribunal should be limited to personnel within the force and cases should be decided relatively speedily without excessive technicality.  Neither the adjudicating officer hearing, nor the prosecuting officer prosecuting in, the re-hearing was legally qualified.

61.    In relation to the above, the respondent refers to several pre-1986 decisions both here and in England:-

(a)     Maynard v. Osmond [1977] 1 QB 240, 254, 256 and 259;

(b)     Fraser v. Mudge [1975] 1 WLR 1132, 1133-3;

(c)     Re Fong Hin-wah [1985] HKLR 332, 334-6.

I note that they are pre-Bill of Rights and pre-Basic Law decisions.

62.    Secondly, the respondent contends that the right to legal representation in civil matters should not be absolute.  The Hong Kong Bill of Rights does not guarantee such a right.  The courts have decided that such right is not absolute and restrictions are permitted.  The extent of restrictions depends on the nature and subject-matter of the right in issue.

63.    In relation to the above, the respondent relies on the following decisions:-

(1)     Gurung Kesh Bahadur v. Director of Immigration [2002] 2 HKLRD 775, 784H;

(2)     Enderby Town Football Club Ltd. v. Football Association Ltd. [1971] Ch 591, 605;

(3)     R v. Secretary of State for the Home Department, ex p Tarrant [1985] QB 251, 270-2 and 295-6;

(4)     Hone v. Maze Prison Board of Visitors [1988] 1 All ER 320.

64.    If Article 35 is given a literal interpretation, it confers an absolute right to litigants (litigation in this context includes proceedings before tribunals exercising a judicial function) to have legal representation of his own choice.  But the respondent submits a literal interpretation is inapt.  The remarks of the Court of Final Appeal in relation to Article 39, Basic Law in Gurung Kesh Bahadur is relied upon in this connection.

65.    The material part of Article 39, Basic Law states:-

‘… The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law … ’.

The following remarks of the Court of Final Appeal in Gurung Kesh Bahadur are relied upon by the respondent-

‘… But it does not follow that rights found only in the Basic Law can be restricted without limitation provided the restrictions are prescribed by law. The question of whether rights found only in the Basic Law can be restricted and if so the test for judging permissible restrictions would depend on the nature and subject matter of the rights in issue. This would turn on the proper interpretation of the Basic Law and is ultimately a matter for the courts’ (emphasis supplied) (para. 28).

66.    The respondent further seeks support from Article 103, Basic Law the relevant part of which provides:-

‘… Hong Kong's previous system of recruitment, employment, assessment, discipline, training and management for the public service, including special bodies for their appointment, pay and conditions of service, shall be maintained … ’ (emphasis supplied).

67.    It is undisputed the current system of disciplinary proceedings is (at least as regards the right to legal representation) identical to that which existed before July 1997.  The respondent submits Article 35, being a general provision, should be interpreted as subject to the more specific provision in Article 103.

68.    Bearing in mind the various matters put forth by the respondent (set out in para. 60 to 67 above), I agree with the respondent that the challenge against r. 9(11) and (12) is unmeritorious.

69.    The respondent also contends that, even if the applicant should enjoy a right to legal representation at the re-hearing, by reason of the strength of the prosecution evidence, a conviction would still have been inevitable.  It is strictly unnecessary to consider this, but if it were otherwise, I am inclined to agree with the contention.  Para. 19 above [relating to the refusal to grant relief where there has not been real prejudice] is repeated for this purpose”.

35.The observation in Lam Siu Po that the right to legal representation is not absolute in civil proceedings also has the support of the court of appeal in New World Development (see, for example, para. 39 and 113 to 115).

36.In New World Development, the Court of Final Appeal approached this aspect as part of the principle relating to procedural fairness.  Some helpful guidance has in fact been provided by the Court of Final Appeal:-

“The issue in the present case therefore concerns the precise mode and extent of legal representation which should be permitted at the hearing.  The answer must depend on what is fair and proportionate, applying the common law approach. …

…

More recent authority clearly establishes that there is no absolute right to have counsel address the tribunal or to question witnesses, any such entitlement depending on whether such procedures are required as a matter of fairness.

Thus, in R v Board of Visitors of HM Prison, the Maze, ex p Hone [1988] AC 379, the House of Lords … stated:

‘...... though the rules of natural justice may require legal representation before a board of visitors, I can see no basis for Mr Hill's submission that they should do so in every case as of right. Everything must depend on the circumstances of the particular case …

… it is easy to envisage circumstances in which the rules of natural justice do not call for representation, even though the disciplinary charge relates to a matter which constitutes in law a crime, as may well happen in the case of a simple assault where no question of law arises, and where the prisoner charged is capable of presenting his own case. To hold otherwise would result in wholly unnecessary delays in many cases, to the detriment of all concerned including the prisoner charged, and to wholly unnecessary waste of time and money, contrary to the public interest.’ (at 392) … ” (para. 93, 98 and 99).

While pointing out the list of factors cannot be comprehensively stated, the Court of Final Appeal observed that the following may be taken into account when a tribunal is considering a request for legal representation:-

“… the seriousness of the charge and potential penalty; whether any points of law are likely to arise; the capacity of the individual to present his own case; procedural difficulties; the need for reasonable speed in making the adjudication; and the need for fairness among the individuals concerned … ” (para. 101).

37.If it had been necessary to do so, I would have found that no procedural unfairness had been suffered by the applicant.

38.Finally, the application to amend the Form 86A (see para. 4 above) is unopposed.  In exercise of my discretion conferred by RHC Ord. 53 r. 6(2), I allow the amendment.

Costs Order Nisi

39.There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application be paid by the applicant to the respondent, to be taxed if not agreed.  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Stephen Tang, instructed by Messrs Hastings & Co., assigned by DLA, for the Applicant

Mr Erick Shum, instructed by Secretary for Justice, for the Respondent