Lam Sze Ming and Another v. The Commissioner of Police

CACV 912/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 912 OF 2000

(ON APPEAL FROM HCAL 1150 OF 2000)

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Before : Hon Cheung JA, Stone and Suffiad JJ in Court

Date of Hearing : 20 July 2010

Date of Decision : 23 July 2010

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D E C I S I O N

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Hon Cheung JA :

Extension of time

1.This is the applicants' application for leave to appeal out of time to the Court of Final Appeal against our judgment dated 23 July 2002.

Principles

2.As in all extension of time applications the relevant considerations are :

(1)    the length of the delay;

(2)    the reason for the delay;

(3)    the merits of the appeal; and

(4)    prejudice to the other party if the application is granted.

Delay

3.The applicants who were former policemen were found guilty by a Police disciplinary proceeding in March 2000 and were dismissed from the Police force.  The subject matter of the discipline was in respect of events that took place in 1995.  Their application for judicial review of the decision was dismissed by Burrell J on 25 October 2000.  This Court (Mayo VP, Cheung and Yeung JJA) dismissed the appeal by a majority on 23 July 2002.

4.Although there were two previous notices of intention to apply for leave to appeal to the Court of Final Appeal (‘notices of intention’) filed on 8 August 2002 and 3 May 2004 respectively, the current notice of intention was only filed on 10 July 2009 and the Notice of Motion for leave was filed on 17 December 2009.  There is a substantial delay of over seven years.

Reason for the delay

5.The applicants explained that they always intended to appeal against our judgment of 23 July 2002.  Legal advice that was obtained was favourable to them.  However their application for legal aid was refused and on 2 January 2003, a bankruptcy order was made against the 2^nd applicant.  Although they continued to pursue the possibility of appeal, application to the Hong Kong Bar Association Free Advice Scheme was refused on 27 September 2005.  Further legal advices that they had obtained in 2006 and 2007 were also positive.  The Court of Final Appeal’s judgment of Lam Siu Po v. Commissioner of Police [2009] 4 HKLRD 575 which was delivered on 26 March 2009 prompted them into action again and their third notice of intention was filed on 10 July 2009.  Legal aid was then granted in September 2009.  Counsel was instructed at the end of October 2009.

6.In gist, the explanation for the delay was due to the financial difficulties of the applicants.  However this could not be a justification for the delay.  Even recognizing that they are lay persons, the applicants could have acted in person and pursued the application much earlier had they really wished to pursue the appeal.

Merits of the appeal

7.I will start on the assumption that Lam Siu Po which imposes a high standard of fairness in disciplinary proceedings put an entirely new complexion upon the issues decided by this Court and the applicants have satisfied the ‘reasonable prospect of success of appeal’ requirement.  However the applicants still have a tall hurdle to overcome.  The principle of law is clear : while recognizing the granting of extension of time is a matter of discretion, when a subsequent judgment holds a previous view on a legal question to be incorrect, this will not automatically entitle a party affected by the previous judgment to have a right of appeal, he must show that there are exceptional circumstances which may justify an extension of time to be granted : HKSAR v. Hung Chan Wa & Another (2006) 9 HKCFAR 614.  This underlines the public policy of finality of litigation.  The ‘exceptional circumstances’ test was reached by the Court of Final Appeal after considering overseas decisions which imposed the requirement of ‘special circumstances’ (R v. Knight [1998] 1 NZLR 583 at 588-589) or ‘substantial injustice or injury’ (R v. Ballinger [2005] 2 Cr. App. R. 29 at [21]).  This issue must be considered in the light of all the circumstances of the case, including an overall assessment of the strength of the proposed appeal, the practical utility of the remedy sought, the length of delay, reason for delay, the extent of the impact on other similarly affected and on the administration of justice i.e. the floodgate consideration and the absence of prejudice to the other parties : Re Knight.  Li CJ in Hung Chan Wah stated at [25] that the occasions when exceptional circumstances would be held to exist would be very rare. 

8.The overseas authorities were extensively reviewed by this Court (Ma CJ, Tang and Stock VPP) in Lau Luen Hung Thomas v. Insider Dealing Tribunal and Financial Secretary (HCMP 1017/2008, Decision dated 9 April 2009).

The present case

9.In the present case, apart the Lam Siu Po decision itself, the applicants have not been able to show that there are exceptional circumstances.  In every case where there is a new interpretation on the existing law this will inevitably result in a sense of injustice or grievance to the losing parties.  However, the issue of the ‘wrongful’ decision and its consequence on the applicants who were dismissed by the Police cannot by themselves constitute the basis of exceptional circumstances or substantial injustice or injury.  As had been pointed out earlier there was also the consideration of the lengthy and substantial delay which cannot be justified.  The filing of the notices of intention did not set the appeal procedure into motion.  With judicial review being a discretionary remedy, there is no certainty that relief would eventually be granted.

10.Ms Margaret Ng, counsel for the applicants, stressed that the issue of finality must be analysed in the context of practical necessity.  She submitted that there had been a miscarriage of justice or at least the conviction was not inevitable.  Since the applicants had been dismissed by an unfair system, the Commissioner of Police must abide by the law and the Court’s function is to oversee public authority observing the law.  As the dissenting judge in the judgment, Ms Ng’s principled approach has my sympathy and is fully considered, but at the end in my view this argument proceeds to a very large extent on the law as developed by Lam Siu Po.  As pointed out by other decisions, the fact that the change is fundamental and important will not by itself be sufficient to justify an extension.  Although the respondent did not address the issue of prejudice, the reopening of the case after a lapse of ten years since the dismissal must cause prejudice to the respondent in terms of the litigation itself and the operation of the Police.  While each case is to be decided by its own facts, having examined the decided cases, the ‘exceptional circumstances’ requirement is one that is extremely difficult to meet indeed.

Conclusion

11.I will refuse the application with a provisional costs order in favour of the respondent.  The applicants’ own costs are to be taxed in accordance with Legal Aid Regulations.

Hon Stone J :

12.I am driven to agree with the judgment of Cheung JA.

13.In these circumstances it seems to me that, after a lapse of some seven years, if this case deserves the sobriquet ‘exceptional circumstances’ – instances of which the Chief Justice in Hung Chan Wah, (2006) 9 HKCFAR 614, has stated are likely to be very rare – thereby justifying an extension of time to appeal after such a lengthy period and involving the issue of prospective overruling, the question of leave is an aspect of the case which in my judgment more properly should be left to the Appeal Committee of the Court of Final Appeal (to which, for my part, I hope that further application will be made).

14.Nevertheless, although for the reasons adumbrated by Cheung JA I feel unable to accede to the relief now sought by Miss Ng in this application, it is right to record that after listening to her cogent and eminently fair submissions, I have come to view this case with a feeling of considerable unease; indeed, I have sympathy with Miss Ng’s forthright and courageous assertion that in the particular circumstances of this case there is a real possibility that these applicants have suffered a miscarriage of justice, and that it is only now, with the recent CFA decision in Lam Siu Po, [2009] 4 HKLRD 575 that funding by Legal Aid has become available for the matter further to be pursued.

15.The lack of legal representation, the use of obviously tainted witnesses at the disciplinary hearing convened to hear a charge differing from that with which they were acquitted in the criminal courts, and the non-disclosure of caution statements of these tainted witnesses are particularly worrying elements within this case, to which the decision in Lam Siu Po, op cit., clearly adds impetus to the original arguments mounted on behalf of these applicants; as to which, whilst I fully appreciate that this matter hitherto has been considered by eminent judges in courts at two levels, for my part I respectfully view as correct the dissenting judgment of Cheung JA in the Court of Appeal in the judgment rendered in this case on 23 July 2002, wherein the learned judge clearly was concerned at the lack of procedural fairness which he considered had been visited on these applicants, with personally disastrous consequences.

Hon Suffiad J :

16.For the reasons given by Cheung JA, I will also refuse the application.  I should add that I also concur whole-heartedly with the sentiments expressed by Stone J in this matter.

Ms Margaret Ng, instructed by Messrs Hastings & Co, for the Applicants

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

Application by 1st and 2nd Applicants to Court of Final Appeal dismissed by Court of Final Appeal. Please refer to FAMV26/2010 dated 15 March 2011