Chiu Hoi Po v. Commissioner of Police

FACV No. 9 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2009 (CIVIL)

(ON APPEAL FROM CACV NO. 200 OF 2006)

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Between:

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J U D G M E N T

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Chief Justice Li :

1.The judgment of the Court is given by Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ :

2.This appeal is dealt with under the procedure laid down in Mok Kin Kau v. HKSAR (2008) 11 HKCFAR 1 where we said this at pp 2J-3A :

“An uncontested appeal can be allowed without putting any party to the expense of an oral hearing if it can readily be seen, even without the assistance of oral argument, that the appeal should be allowed. Where costs remain in issue, they can be dealt with on written submissions.” 

3.Shortly stated, the circumstances are as follows.  In 2003, while the appellant was a constable in the Police Force, he was found guilty in defaulter proceedings on two disciplinary charges.  Each charge was of conduct calculated to bring the public service into disrepute.  On the first charge, the appellant was awarded the punishment of a severe reprimand.  And on the second charge, he was awarded the punishment of a severe reprimand and compulsory retirement from the force with deferred benefits.  These awards of punishment were confirmed by the Force Discipline Officer.  Upon their ratification by the Commissioner of Police, the appellant was compulsory retired from the force with effect from 29 August 2003.

4.The appellant was not legally represented at the defaulter hearing.  And that is what this appeal is about.  He wanted to be legally represented at the defaulter hearing.  But in that connection, he was confronted by regulation 9(11) and (12) of the Police (Discipline) Regulations which purported to bar legal representation at such hearings.  On the basis of these sub-regulations, he was denied permission to be legally represented at the defaulter hearing.  In the judicial review proceedings which he pursued for the quashing of the findings of guilt and awards of punishment made against him, he complained of, among things, the refusal of permission for him to be legally represented at the defaulter hearing.  His judicial review proceedings failed with costs against him in the High Court (Chung J) on 26 April 2006 and in the Court of Appeal (Yuen JA and Lam and A Cheung JJ) on 26 February 2008.

5.This Court’s judgment in Lam Siu Po v. Commissioner of Police, FACV No.9 of 2008, 26 March 2009, established that at all times material to the present case the bar against legal representation in defaulter proceedings stood replaced by a regime under which a defaulter is to be permitted legal representation where fairness so requires. 

6.On 18 May 2009 the Appeal Committee granted the appellant leave to appeal to this Court.

7.It is contended on the appellant’s behalf that the outcome of the defaulter proceedings might have been different if he had been legally represented.  The respondent has refrained from – and there is no reason to question his wisdom in refraining from – contending otherwise.  Both parties ask us to allow the appeal so that :

(i) the finding of guilt made against the appellant and the punishment awarded, confirmed and ratified against him be quashed;

(ii) the costs of the appeal, including those of the leave application, be awarded to him, such costs to be taxed if not agreed;

(iii) there be no order as to the costs in the courts below; and

(iv) the appellant’s own costs here and in the courts below be taxed under the Legal Aid Regulations. 

They have taken out a consent summons returnable before a single permanent judge, asking by that summons that the appeal be allowed in those terms. 

8.Parties are free to come to such terms as they agree, but appeals are not to be allowed by consent – not even by the Court let alone a single member of it.  Even where an appeal is uncontested, it is for the Court to consider it under the procedure laid down in Mok Kin Kau’s case.  This has now been done in the present appeal.  It has been done with the assistance of a joint printed case signed by counsel for both parties.  It can readily be seen, even without the assistance of oral argument, that the appeal should be allowed in the terms proposed by the parties, namely those set out above.  Accordingly the appeal is allowed in those terms.  The costs of the consent summons will be included in the costs of the appeal, to be taxed if not agreed, awarded to the appellant.  And the appellant’s own costs of that summons, too, will be taxed under the Legal Aid Regulations.

9.Finally, it should be mentioned that the joint printed case contains an express reservation by the respondent of his right to commence fresh defaulter proceedings against the appellant arising of the same subject matter.  The Court notes this reservation without comment.

Joint printed case signed by Prof. Johannes Chan SC (instructed by Messrs Hastings & Co.) for the appellant and Mr Anderson Chow SC (instructed by the Department of Justice) and Ms Bethany Choi (of that department) for the respondent