Lam Chi Pan v. Commissioner of Police

CACV 193/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 193 OF 2008

(ON APPEAL FROM HCAL NO. 93 OF 2005)

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BETWEEN

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Before: Hon Tang VP, Yeung JA and Lam J in Court

Date of Hearing: 1 December 2009

Date of Judgment: 18 December 2009

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JUDGMENT

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Hon Tang VP (giving the judgment of the Court):

1.The applicant was a policeman. He was dismissed after being found guilty of making a hoax 999 call from a public telephone booth on the Star Ferry Concourse on 24 September 2003. The hoax call was to the Israeli Consulate. Apparently there had been earlier hoax calls to the Israeli Consulate.

2.On 24 September 2003, as part of a covert operation against hoax 999 calls targeting Consulates, the police carried out observations on a number of public telephone booths. One of the observation posts was at the Star Ferry Pier in Central, which was manned by Detective Police Constable (DPC) 48729 and Woman Detective Police Constable (WDPC) 56667.

3.At around 1740 hours on that day, the 999-call operator received a hoax call that smoke was found at the Israeli Consulate at the Admiralty Centre. The call was traced to a public telephone number PP11992 (“the Telephone”) which was located at the Star Ferry Pier.

4.However, before DPC 48729 and his colleague were informed of the hoax call, they spotted a man using the Telephone. They approached the telephone booth and saw a man, who had a piece of tissue in his hand, placing the handset back onto the Telephone. As this man walked away from the telephone booth, DPC 48729 and WDPC 56667 revealed their identity and stopped him for an identity card check. That man then said he was also a policeman and produced a police identity card from his wallet. According to DPC 48729 the photo on the warrant card resembled the man and WDPC 56667 saw the warrant card carry the words “police constable”. When asked about the tissue paper, the man mentioned SARS. At this point, unfortunately, the two officers were distracted by another man who appeared near the telephone booth. The man whom they had stopped claimed he was in a hurry and left, and the two police officers did not take down his particulars. The second man, however, did not use the Telephone.

5.Shortly after this, the two police officers were notified of the hoax call made from the Telephone. They tried to trace the man they had stopped but were unable to do so.

6.In the afternoon of 25 September 2003, WDPC 56667 went to the Waterfront Police Station to take part in a group identification. When she was at the lift lobby, she saw the man she had stopped at the Star Ferry Pier the day before. She immediately told the detective sergeant who was with her. However, the man could not be traced. Eventually, out of three groups of police officers, WDPC56667 identified the applicant as the man she had intercepted at the Star Ferry Pier and the man she had seen at the lift lobby inside the police station.

7.The applicant was arrested for the offence of causing wasteful employment of police. He denied the offence under caution.

8.In the same evening, DPC 48729 positively identified the applicant in a one-way viewer identification parade at Hong Kong Island Regional Headquarter.

9.An Octopus card was seized from the applicant. The transaction record of the Octopus card revealed that it had been used to enter the Sheung Wan MTR station at 16:27:07 hours and to exit the Central MTR station at 16:33:56 hours on 24 September 2003. On that day, the applicant was on Report Room duty at the Waterfront Police Station between the hours of 07:30 and 16:15 hours.

10.Eventually, the applicant was not prosecuted.

11.But on 25 October 2004, disciplinary proceedings were commenced against the applicant. He was charged with a total of six charges of disciplinary charges. We are only concerned with the charge of conduct calculated to bring the public service into disrepute. The particulars of the charge reads:

“PC1844, LAM Chi-pan, of the Hong Kong Police Force, you are charged that at about 1740 hours on 24^th September 2003 at public payphone PP 11992, outside Star Ferry Pier, Central in Hong Kong, you did make a hoax call to 999 console operator saying that there was smoke found at Israel Consulate at 7/F, Admiralty Centre, such act being calculated to bring the public service into disrepute.”

12.The applicant pleaded not guilty to all the charges. He was represented by Senior Inspector Lam Kwok Chu Antonio (“SIP Lam”). On 13 December 2004, he was found guilty of the charge of conduct calculated to bring the public service into disrepute, but he was found not guilty of the other five charges. The Adjudicating Officer (“AO”) was of the view that he might not have sufficient power to award the appropriate punishment and referred the award of punishment to a Senior Police Officer (“SPO”).

13.On 23 December 2004, the SPO confirmed the finding of guilt and awarded the punishments of severe reprimand and compulsory retirement with deferred benefits. On 19 February 2005, the Force Discipline Officer (“FDO”) substituted the SPO’s award of punishment with punishments of severe reprimand and order to resign forthwith without salary in lieu of notice.

14.The applicant’s appeal to the Commissioner of Police (“the Commissioner”) was dismissed by the DPC(Man) on 4 May 2005.

15.On 9 May 2005, the Commissioner confirmed the finding of guilt and the FDO’s award of punishments. Because the applicant did not submit his resignation, the Commissioner dismissed him from the Force with immediate effect on 27 May 2005 and also forfeited his earned leave.

16.On 22 July 2005, the applicant filed his Form 86A to seek leave to apply for judicial review. After holding an oral hearing, Cheung J refused to grant leave.

17.The applicant appealed against the refusal to this Court in CACV 408/2005. He also applied for leave to adduce fresh evidence at the appeal. The fresh evidence was his 2^nd affirmation and an affirmation of SIP Lam, both made on 21 November 2006.

18.On 1 December 2006, this Court (differently constituted) admitted the fresh evidence and gave leave to the applicant to amend the Form 86A to rely on a new ground. The Court also granted leave to apply for judicial review on the new ground.

19.The new ground was:

“The Applicant did not have a fair hearing before the Adjudicating Officer from 22 November 2004 to 25 November 2004 in that:

(1)  despite the clear instruction given by the Applicant that he was not the person stopped by the two police officers at the Star Ferry Concourse at the material times, his representative had failed to appreciate the critical importance of the police’s identification evidence to the Applicant’s case and failed to challenge the identification evidence in the said hearing; and

(2)  such failure had resulted in the fairness of the hearing being compromised.”

20.The matter was heard before Chu J on 25 September 2007. By judgment dated 30 May 2008, the application for judicial review was dismissed.

21.On 17 July 2008, the applicant appealed to this Court. At that time he was acting in person.

22.On 1 September 2008, the respondent filed a Respondent’s Notice.

23.On 3 November 2009, a Supplementary Notice of Appeal was filed. The applicant was granted legal aid in the meantime and the Supplementary Notice of Appeal was settled by Mr Kwok Sui Hay of counsel.

24.The first five of the supplementary grounds of appeal alleged allegation of the incompetence of representation by SIP Lam.

25.By summons dated 3 November 2009, there was an application for leave to the applicant to file fresh evidence in the form of the 3^rd affirmation of the applicant dated 3 November 2009.

26.However, at the hearing of the appeal, the application for leave to file such additional evidence was not pursued.

27.The Supplementary Notice of Appeal, however, raised at its 6^th ground, the following:

“6.  The disciplinary hearing was in breach of the Applicant's right to a fair hearing guaranteed under article 10 of the Bill of Rights as enunciated in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575

(a)  The charge against the Applicant would lead to serious potential penalty, namely, dismissal.

(b)  A very difficult point, namely, identification evidence, arose in the disciplinary proceedings.

(c)  The Applicant encountered difficulties with his representative in the disciplinary hearing.

(d)  Fairness required that the Applicant should have legal representation at the disciplinary hearing.

(e)  The Applicant cannot be faulted for failing to make an application for legal representation which had no prospect of success: Werner v Austria (1997) 26 EHRR 310.”

28.Essentially, the new point is that, as a result of Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575, the prohibition on legal representation under regulations 9(11) and 9(12) of the Police (Discipline) Regulations, Cap. 232A, Sub.Leg. is unconstitutional as being contrary to Article 10 of the Hong Kong Bill of Rights (“Article 10”), and thus the applicant had not had a fair hearing which was his right under Article 10.

29.In Lam Siu Po, Ribeiro PJ said:

“140.  … reg.9(11) and 9(12) impose a blanket restriction on professional legal representation in police disciplinary proceedings.  The vice which results is that in a case where the common law principles and compliance with Article 10 compel the conclusion that the tribunal’s discretion ought to be exercised in favour of allowing legal representation, regs.9(11) and 9(12) prevent that course from being followed.  In other words, they make it part of the disciplinary scheme that the tribunal is prevented from complying with its duty of fairness where such duty calls for legal representation to be permitted.

……

142.  Regulation 9(11) and 9(12) are therefore systemically incompatible with Article 10.  Pursuant to s.6(1) of the Bill of Rights Ordinance, the Court is empowered to make such order in respect of this violation of the Bill of Rights as it considers appropriate and just in the circumstances.  In my view, it is appropriate and just that reg.9(11) and 9(12) be declared unconstitutional and invalid with the result that the tribunal, as master of its own procedure at common law, is able to exercise a discretion unfettered by those regulations to permit legal or other forms of representation where fairness requires this.  I have been focussing on objections to the exclusion of professional legal representation by reg.9(12).  However, there is no reason why the tribunal should be restricted to permitting non-professional representation only by fellow officers as envisaged by reg.9(11).  The tribunal ought to be able, in its discretion, to permit other appropriate forms of representation if asked for, whether by a fellow officer or by a person from outside the Force who would in a courtroom setting be called a McKenzie friend.”

30.Ribeiro PJ then concluded:

“168.  For the foregoing reasons, I conclude that:

(a)  Article 10 is engaged in respect of the appellant’s disciplinary proceedings.

(b)  The requirement of a fair hearing means that the disciplinary tribunal ought to have considered permitting the appellant to be legally represented.

(c)  In excluding the possibility of the tribunal exercising such a discretion, reg.9(11) and 9(12) are inconsistent with Article 10 and must be declared unconstitutional, null and void.

(d)  Since the tribunal failed to consider and, if appropriate, to permit legal representation for the appellant, he was deprived of a fair hearing in accordance with Article 10 so that the disciplinary proceedings were unlawful and the resulting convictions and sentences must be quashed.”

31.Mr Bernard Man, appearing for the respondent, sought to distinguish Lam Siu Po on the basis that there, the appellant had requested and was denied legal representation by legal practitioner, whereas, here the applicant had never requested legal representation before the disciplinary tribunal. He submitted that the difference is critical, because although a party who requested to be legally represented had a right to have his request properly considered by a tribunal, the tribunal has no duty to consider on its own initiative whether to allow legal representation.

32.Mr Man submitted that it has been held in England that although a prison board of visitors must consider exercising its discretion when faced with a request for legal representation (R v Home Secretary, ex p Tarrant [1985] QB 251), it generally has no duty to do so where there is no request: R v Board of Visitors of Blunderstone Prison, ex p Norley, unreported, Queen’s Bench Division, 4 July 1984. In Tarrant, the board had refused the requests for legal representation because as Webster J said:

“It is simply common ground that all boards have taken the view that neither representation nor assistance of any kind can be allowed.”

33.We note, however, that in Norley Webster J said:

“There may be exceptional or unusual cases where such a duty arises specifically when legal representation might be necessary for a fair hearing and when the prisoner might not be capable of understanding that possibility or, if he is capable of understanding it, might not be able to make his own application.”

34.Mr Kwok relied on Werner v Austria (1997) 26 EHRR 310 which was concerned with Article 6(1) of the European Convention which closely resembles Article 10 (per Bokhary PJ in Lam Siu Po at 587). There the complaint was that there was no public hearing. However, the applicant had not specifically requested a public hearing. The European Commission and the European Court of Human Rights were of the view that unless the applicant could be said to have waived his right to a public hearing, the absence of a request for a public hearing was immaterial.

35.The majority opinion of the Commission stated:

“54. The applicant was in principle entitled to a public hearing on his compensation claim, as none of the exceptions laid down in the second sentence of Article 6(1) applied.

55. The Commission observes that the applicant did not expressly request a public hearing on his compensation claim. In the Government's view he must therefore be deemed to have waived his right to such a hearing. However, the Commission shares the applicant's opinion that, since the relevant provisions did not provide for a public hearing, he could not be deemed to have waived this right. In his respect, the Commission recalls that the question of whether or not an applicant has requested a public hearing becomes irrelevant for examining compliance with Article 6(1) of the Convention when the respective domestic law excludes the holding of public hearings. Moreover, although the applicant did not expressly request a public hearing in the proceedings before the Court of Appeal, he, nevertheless, asked to be heard and to be confronted with witnesses.”

36.In the European Court, the majority said:

“47.  It is true that Mr Werner did not expressly ask for a public hearing to be held, and the Court must examine whether he thereby waived his right.

48.  Those appearing before the Court at the hearing disagreed as to the legislative provisions applicable in the case. In this connection, the Government's argument that a public hearing in compensation proceedings was the rule cannot apply in this instance, precisely because no hearing was held on the criminal charge, the proceedings having been discontinued by the investigating judge. Even if the relevant provisions did not expressly rule out holding a public hearing as they did in the Diennet case, the Court, like the Commission, considers it established that in practice there is never a public hearing in such proceedings under section 6(2) of the Compensation (Criminal Proceedings) Act where criminal proceedings have been discontinued by the investigating judge. That is clear both from the spirit of the Act and from the analyses of it by legal writers.

That being so, the applicant cannot be blamed for not having made an application which had no prospects of success. On this point the present case differs fundamentally from the cases of Håkansson and Sturesson v. Sweden, Schuler-Zgraggen v. Switzerland, Zumtobel v. Austria and Pauger v. Austria, in which the relevant law expressly made provision, on certain conditions, for the possibility of a public hearing.”

37.Mr Man sought to distinguish Werner on the basis that it was concerned with the right to a public hearing. Moreover, he submitted there is no right to legal representation only a right to have the Tribunal consider whether to permit legal representation.

38.The right to legal representation is one aspect of the requirement of a fair hearing. Here, prior to Lam Siu Po, this court had consistently (though wrongly) held that reg. 9(11) and (12) were constitutional and there was no right to legal representation. It is unreal to say that the applicant had not been deprived of a fair hearing when he could not be expected to ask for legal representation. Moreover, when in Lam Siu Po, Ribeiro PJ said:

“168(b)  The requirement of a fair hearing means that the disciplinary tribunal ought to have considered permitting the appellant to be legally represented.”

his Lordship was dealing with a case where a request had been made.  Here, no request had been made.  In this case, we believe the critical question is whether the fact that the disciplinary proceedings were heard by a tribunal which was precluded by regulation 9(11) and (12) to permit legal representation could be said to be unfair within the meaning of Article 10.  The answer must be ‘yes’.  It smacks of formalism to say that the applicant ought nevertheless to have requested legal representation.  The outcome of such an application was certain.  It is inconceivable that the tribunal could decide that regulation 9(11) and (12) were unconstitutional and that it had a discretion to permit legal representation.  Nor is it right that since the applicant had not sought to challenge the constitutionality of regulation 9(11) and (12) by judicial review, he could not complain that proceedings under the regime of regulation 9(11) and (12) were unfair.

39.A hearing before this tribunal where there is a blanket restriction against legal representation is not a fair hearing within the meaning of Article 10.

40.As Ribeiro PJ pointed out in Lam Siu Po:

“108.  Where Article 10 is engaged, the person concerned becomes entitled to ‘a fair and public hearing by a competent, independent and impartial tribunal established by law’. …”

41.Ribeiro PJ went on to say:

“136.  But before addressing that question, it is worth noting that there might have been a complaint concerning publicity and independence.  The proceedings before the tribunal were held in private and the police superintendents who sat as the adjudicating officers cannot be regarded as independent, being officers subordinate to the Commissioner in whose name the disciplinary charges were brought.  However, it was in my view right not to contend that those features of the disciplinary proceedings constituted a contravention of Article 10.  Viewing the process as a whole, the protections of independence and publicity are achieved without any deficit through recourse to judicial review.  Judges in the Court of First Instance and in the appellate courts are plainly independent of the Police Force and of the executive and legislative arms of government in general.  The courts are open to the public and every relevant aspect of the charges, the evidence and the rulings made by the disciplinary tribunal can be (and have been) publicly discussed.”

42.This passage shows that a complaint about lack of publicity or independence might be made although a request for a public hearing or an independent tribunal had not been made at the relevant time.

43.Mr Kwok also relied on Millar v Dickson [2002] 1 WLR 1615, a decision of the Privy Council. There the Privy Council was concerned the right to a fair trial before an independent tribunal in criminal proceedings under Article 6(1) of the European Convention. It held that the right to a fair trial was absolute and could not be compromised or eroded unless validly waived. The expression waiver was used to describe:

“a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise”.  per Lord Bingham at para. 31.

44.In that case, the appellants were the subject of criminal proceedings before a temporary sheriff between 20 May 1999 and 11 November 1999. They were convicted at trial and had pleaded guilty to various offences in the sheriff court. On 20 May 1999, section 44(1)(c) of the Scotland Act 1998 came into force. The Lord Advocate thereupon became a member of the Scottish executive. As such, by virtue of section 57(2) of the Act, he had no power to do any act in compatible with any of the convention rights defined in section 1 of the Human Rights Act 1998 (unless the act in question fell within section 57(3)). On 11 November 1999 the High Court gave its decision in Starrs v Ruxton [2000] JC 208, holding that temporary sheriffs were not an “independent and impartial tribunal” within the meaning of Article 6(1) of the ECHR. Leave to appeal was given to the Privy Council.

45.Lord Bingham of Cornhill said:

“27  I accept the argument for the accused on this point.  The Lord Advocate had no power to act in a way which infringed any Convention right of the accused.  By continuing to prosecute the accused before a tribunal which was not independent and impartial he infringed the right of the accused to have the criminal charges against them determined by a tribunal which was independent and impartial.  Unless the accused validly waived their entitlement to trial before an independent and impartial tribunal, he acted in a way which section 57(2) denied him power to do.  I think this is the view taken by the High Court.”

46.In para. 35 he said:

“35.  … That there is no waiver where a party relies on what is reasonably understood to be the law at the relevant time is not because such conduct is reasonable (although it plainly is) but because the party lacks the knowledge necessary to make an informed choice.  … the more obvious and notorious it is that a point is available to be taken, the more readily may it be inferred that failure to take it represented a deliberate intention not to take it.  The contrary is also true.”

47.Lord Hope of Craighead said in his judgment at page 1638 in para. 38:

“58  But it is one thing to know that the effect of section 57(2) was to introduce new provisions giving accused persons a remedy in domestic law against acts of the prosecutor which were incompatible with their article 6 Convention rights.  It is quite another to be in possession of all the information that was needed to appreciate fully that the acts in question were incompatible. The Strasbourg jurisprudence shows that, unless the person is in full possession of all the facts, an alleged waiver of the right to an independent and impartial tribunal must be rejected as not being unequivocal.  It was not suggested that in any of the four cases which are before us the appellants’ agents were not aware that the sheriff before whom the case had called was a temporary sheriff or of the statutory provisions under which they had been appointed.  But no evidence has been produced by the prosecutor, on whom the onus lies, to show that they were aware of the system which had been developed by the executive for making and not renewing these appointments.  A full description of this system was given to the court in Starrs v Ruxton 2000 JC 208, 215-218.  But, as the Lord Justice-Clerk (Cullen) said at p 215A, the content of that description was not a matter of general public knowledge.”

48.With respect, we agree with Mr Kwok, Lam Siu Po cannot be distinguished on the basis that the applicant had not asked for legal representation. It is clear that there had been no waiver. The decision must be quashed because the applicant had not had a fair hearing.

49.That being our view, we would not go on to consider the complaint of incompetence. Mr Kwok has accepted that the Commissioner might commence fresh defaulter proceedings against the appellant. We will say nothing more about the applicant’s case.

50.The appeal is allowed. The applicant is to have the costs of the appeal, to be taxed if not agreed. The respondent should have the costs of the summons to adduce fresh evidence to be taxed if not agreed. The parties are agreed that the costs order below should not be disturbed. The applicant’s costs are to be taxed in accordance with legal aid regulations.

Mr. Kwok Sui Hay, instructed by Messrs Gary K. W. Tam & Co., assigned by the Director of Legal Aid, for the Applicant.

Mr. Bernard Man, instructed by the Department of Justice, for the Respondent.

Application by the applicant for judicial review refused by Court of Appeal. Please refer to CACV193/2008 dated 16 September 2010