Chan Kang Chau v. Commissioner of Police

HCMP 2824/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2824 OF 2004

(ON AN INTENDED APPEAL FROM HCAL NO. 98 OF 2004)

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

Date of Hearing: 6 May 2010

Date of Decision: 6 May 2010

Date of Reasons for Decision: 19 May 2010

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REASONS FOR DECISION

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Hon Tang VP (giving the reasons for decision of the Court):

1.The applicant was a police officer.  He was adjudicated bankrupt in November 2001.  Disciplinary proceedings were brought against him under Police General Order 6-01(8), the 1999 version (“PGO”) which at the time provided:

“A police officer shall be prudent in his financial affairs.  Serious pecuniary embarrassment stemming from financial imprudence which leads to the impairment of an officer’s operational efficiency will result in disciplinary action.”

2.Following such disciplinary proceedings, the applicant was compulsorily retired on 1 June 2004.

3.He then sought leave to apply for judicial review.  That led to our decision of 29 December 2004 (Yeung JA and Tang JA).  We had to deal with two issues.  We decided first that article 10 of Hong Kong Bill of Rights Ordinance, Cap. 383 (“BORO”) (right to fair and public hearing) did not apply to police disciplinary proceedings.  Secondly, that PGO 6-01(8) had been satisfied.

4.In Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575, the Court of Final Appeal decided, inter alia, that:

(1) Article 10 of BORO applies to police disciplinary proceedings, such that, for example, police disciplinary tribunals should have a discretion to permit an officer to be legally represented where fairness so dictated (para. 93-108).

(2)  On the true construction of 1999 version of PGO 6-01(8), the three elements of the offence were causally linked and occurred in a sequence: the serious pecuniary embarrassment ‘stems from’ financial imprudence and in turn ‘leads to’ the impairment of operational efficiency. The third element did not follow automatically, but required the Commissioner to prove impairment of X’s operational efficiency as a separate element of the offence and matter of fact, which flowed directly from his serious pecuniary embarrassment.

5.In so doing, the Court of Final Appeal overruled our decision insofar as we held that article 10 of BORO had no application to police disciplinary proceedings.  As for our decision on PGO 6-01(8), they distinguished it and Ribeiro PJ said:

“161.    The Court of Appeal in Chan Keng-chau did not rule on whether evidence of an impairment of operational efficiency was necessary or whether impairment would be presumed simply from the fact of serious pecuniary embarrassment.  Instead, the Court declared itself satisfied that the Commissioner had in fact presented sufficient evidence of such impairment, pointing to various items of evidence adduced.”

6.As a result of Lam Siu Po, on 10 November 2009, almost 5 years after our decision, the applicant applied for leave to appeal out of time to the Court of Final Appeal.

7.The principles laid down by the Court of Final Appeal in HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 applies to this application.  Lau Luen Hung Thomas v Insider Dealing Tribunal and Anor, FAMV 46/2009 (unreported, dated 4 December 2009), a decision of the Appeal Committee of the Court of Final Appeal.  There, the learned Chief Justice said at para. 7:

“7.    ... In (Hung Chan Wa), it was held that in dealing with applications for extension of time, the principle is that the ground that the previous understanding of the law has subsequently been held to be incorrect would by itself not justify an extension of time.  The Court noted however that there could be exceptional circumstances in a particular case which would justify an extension but observed that the circumstances must be so exceptional that the occasions when they would be held to exist would be very rare. ...”

That is because, as the Chief Justice has explained in Hung Chan Wa at 632:

“24.  ... In adopting this principle, the courts recognize the practical necessity for finality in the criminal process.”

8.The principle is not confined in criminal proceedings, in Tsang Yiu Kai and Anor v Insider Dealing Tribunal, HCMP 1322/2007 (unreported, dated 18 December 2007), this Court (Tang VP and Yuen JA) said:

“32.  We are concerned with an exercise of discretion.  But it is not an unfettered discretion.  The exercise of discretion must be guided by the decision in Hung Chan-wa.

33.   The practical necessity for finality in criminal process underlines the importance of the principle stated in Hung Chan-wa. The same principle applies to civil cases.

34.   Finality is particularly important because a judgment determining a legal question operates retrospectively as well as prospectively.”

9.The principle has also been applied to judicial reviews arising out of police disciplinary proceedings.  See Ho Ho Chuen v Commissioner of Police, HCMP 2276/2009 (unreported, 18 December 2009).

10.Ms Ng, for the applicant, submitted, the fact that our decision has been overruled by the Court of Final Appeal is a relevant exceptional circumstance.  With respect, we cannot agree.

11.Ms Ng also submitted, after referring us to the evidence, that, on the evidence, the applicant could not have been convicted had a correct view been taken of PGO.  With respect, we do not agree.  We can only agree to the extent that on the evidence, one cannot say that the conviction of the applicant of the disciplinary offence was inevitable.

12.But merit though relevant, is not a sufficient reason for extension of time to be granted.  See Tsang Yiu Kai.

13.Ms Ng also referred us to R v Criminal Injuries Compensation Board Ex Parte A [1999] 2 AC 330.  That concerned an application to the Criminal Injuries Compensation Board for compensation.  In that case, the claimant claimed that in the course of a burglary she had also been the victim of rape and buggery.  Five days after the burglary, she had been examined by a police doctor who reported that her findings were consistent with the allegation of buggery but neither confirmed nor excluded vaginal intercourse.  At the hearing of her claim, the evidence did not include the police doctor’s report and the police witness said:

“The Doctor could only see trauma to the back passage - the applicant had haemorrhoids.”

14.The board rejected the claim concluding that the medical evidence gave no assistance in determining the applicant’s claims.  Ten months later, the applicant applied for leave to move for judicial review of the board’s decision.  Leave was granted but the learned judge refused substantive relief having regard to unexplained delay in applying for leave.  The Court of Appeal held that the learned judge had erred in so doing but dismissed the applicant’s appeal on merits.  On appeal, the appeal was allowed.  Lord Slynn of Hadley delivered the leading speech and said:

“I consider therefore, on the special facts of this case and in the light of the importance of the role of the police in co-operating with the board in the obtaining of evidence, that there was unfairness in the failure to put the doctor’s evidence before the board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done.”

15.Ms Ng submitted that insofar as the applicant had been dealt with on an erroneous view of the law, justice had not been done or had not been seen to be done.  With respect, this is another way of saying that on the basis of the later authoritative statement of the law, the previous decision was wrong.  With respect, ex parte A does not help.  It bears little resemblance to this case. 

16.Moreover, the exercise of our discretion must be guided by Hung Chan Wa.  The circumstances in the present case are not exceptional much less so exceptional that leave to appeal out of time should be granted.

17.For the above reasons, we refused leave to appeal out of time.

Ms Margaret Ng, instructed by Messrs Hastings & Co., assigned by Director of Legal Aid, for the Applicant.

Mr Andrew Mak, instructed by Department of Justice, for the Respondent.