Clarence Chan v. Commissioner of Police
Read the full judgment text of FAMV15/2010 on BabelCite. This Court of Final Appeal judgment was delivered on 14 September 2010 before Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ.
Criminal law – police disciplinary proceedings – judicial review – extension of time – finality – Hung Chan-wa principle – Bills of Rights art.10 – legal representation – leave to appeal – Court of Final Appeal – exceptional circumstances – The applicant, a former police officer, was compulsorily retired after disciplinary proceedings where legal representation was barred by subsidiary legislation. He sought judicial review, but leave was granted on only two of five grounds; the refusal on the other three was upheld by the Court of Appeal. After the Court of Final Appeal's decision in Lam Siu Po (2009) overruled the prior law on legal representation and proof of operational efficiency, the applicant applied out of time for leave to appeal to the Court of Final Appeal. The Court of Appeal refused. On further application to the Court of Final Appeal's Appeal Committee, the applicant raised three legal questions: whether the finality principle in Hung Chan-wa can be restricted for constitutional cases; whether finality is engaged before substantive hearing; and whether Order 53 r.3 allows partial grant of leave. The Committee held that the Hung Chan-wa principle is of general application, finality is engaged at all stages, and Order 53 r.3 clearly permits partial grant. The ultimate issue was whether exceptional circumstances justified an extension of time. The Committee held that while the applicant was erroneously denied legal representation and the state of evidence might have been different, the circumstances were not exceptional. Finality in litigation is paramount, and overruling of law after the appeal period does not alone justify extension. Leave to appeal out of time refused – no order as to costs between parties – legal aid taxation of applicant's costs.
Legal issues: Application of the Hung Chan-wa finality principle to extension of time for judicial review involving constitutionality · Whether finality is engaged before substantive hearing of judicial review · Jurisdiction under Order 53 r.3 to exclude part of grounds · Whether exceptional circumstances exist to justify extension of time for appeal to Court of Final Appeal
Outcome: Application for leave to appeal out of time to the Court of Final Appeal refused.
Cited by 17 cases · Cites 2 cases
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FAMV No. 15 of 2010 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 15 OF 2010 (CIVIL) (ON APPLICATION FOR LEAVE TO APPEAL FROM HCMP NO. 2824 OF 2004) _____________________ Between:
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_____________________ D E T E R M I N A T I O N _____________________ Mr Justice Bokhary PJ : 1.This applicant, then a police officer, was adjudicated bankrupt in late 2001. That adjudication was followed by disciplinary proceedings against him for financial imprudence leading to serious financial embarrassment which impaired his operational efficiency. Acting pursuant to subsidiary legislation which barred legal representation, the disciplinary tribunal refused to permit him to be legally represented. He was found guilty. And on 1 June 2004 he was compulsorily retired from the police force. 2.He sought leave to apply for judicial review of the finding of guilt made against him in the disciplinary proceedings. He put forward five grounds. Dealing with the matter on the papers, the High Court granted him leave to apply on two grounds and directed an oral hearing in regard to the other three grounds. Following that hearing, leave to apply on those three grounds was refused. That refusal was affirmed by the Court of Appeal on 29 November 2004. The Court of Appeal, rightly in our view, entertained the appeal on the merits. An applicant who has been granted leave to apply for judicial review on one or more but not all of the grounds that he puts forward may appeal by treating such grant as a refusal. We reject the suggestion to the contrary which appears to have been made by another division of the Court of Appeal in Chiu Kin Ho v. Commissioner of Police, CACV No.374 of 2004, 2 March 2005. 3.On 26 March 2009, more than 4 years after the Court of Appeal had given judgment in the present case on 29 November 2004, the Court of Final Appeal handed down, in the case of Lam Siu Po v. Commissioner of Police (2009) 12 HKCFAR 237, a judgment which vindicated two of the points of law covered by the grounds which the applicant was not given leave to advance by way of judicial review. Of these points of law, the first is to the effect that the bar to legal representation at disciplinary proceedings is inconsistent with the right to a fair hearing guaranteed by art.10 of the Bill of Rights, so that the question of whether such representation is to be permitted is a matter of discretion. And the second point of law is to the effect that impairment of operational efficiency is not simply to be presumed from serious financial embarrassment but must instead be proved. Placing reliance on the judgment in Lam’s case as one which corrected material misapprehensions of the relevant law, the applicant took out an application to the Court of Appeal for leave to appeal out of time to the Court of Final Appeal. That application was taken out on 10 November 2009, which is about 7½ months after judgment had been handed down in Lam’s case. On 19 May this year, the Court of Appeal refused leave to appeal out of time to the Court of Final Appeal. And the applicant now asks us to grant him such leave. 4.In asking us to grant him leave to appeal out of time to the Court of Final Appeal, he relies on both limbs of s.22(1)(b) of the Court’s statute. We say at once that we can see no basis on which it would be appropriate to grant leave under the “or otherwise” limb in this case if this is not an appropriate case for leave under the “question of law” limb. 5.So we turn now to the questions of law which are put forward on the applicant’s behalf as ones which merit the Court of Final Appeal’s attention. As set out in the Amended Notice of Application, these questions are :
In the course of the argument, Ms Gladys Li SC for the applicant said that all five grounds put forward by the applicant were inextricably inter-linked so that it was an erroneous exercise of discretion to grant leave on only some of those grounds. We see no basis for allowing this argument on discretion to proceed to the Court of Final Appeal. So we turn now to consider the three questions of law. 6.As to the first two questions, we see no reasonable argument in favour of restricting the Hung Chan-wa principle in either of the ways suggested on the applicant’s behalf. That principle is of general application. And as for the third question, it is in our view clear beyond reasonable argument to the contrary that leave may be granted to apply for judicial review on one or more grounds while refusing such leave on another or other grounds. The wording of the rule permits it, and the purpose of the rule demands it. Otherwise the filter mechanism constituted by the rule would not work as it should and as it does. What is left? Simply this. 7.It is in the nature of our legal system that the view of the law on which a litigant lost may be overruled in another case decided after the time for him to appeal has expired. Finality in litigation being so important, such overruling cannot of itself justify an extension of time for appealing. There can of course be exceptional circumstances that would justify such an extension. But such circumstances are so exceptional that they would very rarely arise. 8.When refusing the applicant leave to appeal out of time from their decision, the Court of Appeal said that “[t]he circumstances in the present case are not exceptional much less so exceptional that leave to appeal out of time should be granted”. 9.In the present case, the Court of Appeal made no pronouncement on the question of whether impairment of operational efficiency is simply to be presumed from serious financial embarrassment or must instead be proved. They dealt with the issue of such impairment by declaring themselves satisfied that the Commissioner of Police had presented sufficient evidence to prove it. But that is not say that the state of the evidence on that issue might not have been materially more favourable, or at least materially less unfavourable, to the applicant if he had been legally represented at the disciplinary proceedings. And he had been erroneously deprived of an exercise of discretion which might have resulted in his being legally represented thereat. 10.So this application for an extension of time for appealing cannot simply be brushed aside as pointless. But that said, the applicant still faces the obstacle of having to show that the circumstances are so exceptional as to justify the extension which he seeks. Such circumstances are not, as Ms Li contended, supplied merely by the fact that the fairness of disciplinary proceedings is involved. And all things considered, we are of the view that the applicant has not overcome the obstacle confronting him. Accordingly, leave to appeal out of time is – not without sympathy for the applicant and despite the able arguments prepared and presented on his behalf – refused.
11.There will be no order as to costs as between the parties. We order legal aid taxation of the applicant’s own costs. And we thank counsel for their assistance.
Ms Gladys Li SC and Ms Margaret Ng (instructed by Messrs Hastings & Co. and assigned by the Department of Legal Aid) for the applicant Mr Anderson Chow SC (instructed by Department of Justice) for the respondent |
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