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 Ag CJHC, Yeung JA and Lam J in Court

Date of Hearing: 16 September 2010

Date of Judgment: 16 September 2010

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JUDGMENT

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Hon Tang Ag CJHC:

1.At the police disciplinary proceedings, Mr Lam was represented by a fellow officer.  He complained that the representation was incompetent.  That was the basis of his application for judicial review.  Chu J decided against him. He appealed to us.

2.By a Supplementary Notice of Appeal, he raised for the first time as the 6^th ground that:

“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.”

3.It was Mr Lam’s case that the decision of the disciplinary tribunal should be quashed as a result. 

4.At the hearing of the appeal, the respondent was represented by Mr Bernard Man.  In respect of the 6^th ground, his point was that Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575 was distinguishable because Mr Lam had not requested legal representation.  We held that that was not a valid distinction.  (See para. 48 of our judgment handed down on 18 December 2009.)

5.Mr Anderson Chow, SC, now appears for the respondent, who seeks leave to appeal to the Court of Final Appeal.  The point of great general or public importance said to be involved is:

“Is a police disciplinary hearing necessarily unfair and an infringement of the Applicant’s right under Article 10 of the Hong Kong Bill of Rights such that any disciplinary award made pursuant to such hearing is to be quashed merely because there is a blanket restriction against legal representation?”

6.He submitted that it may be that the mere absence of a request to be permitted legal representation is not significant.  He submitted what is more significant are the reasons behind the absence of request.  He gave as an example an applicant who would not have sought legal representation for a variety of reasons including his confidence of success, confidence in the ability of his defence representative, lack of means or simply distrust of lawyers generally.  He submitted that we reached our decision “without considering whether the applicant had ever entertained any wish or desire to have legal representations and whether the applicant would have engaged legal representation but for the blanket restriction imposed by r. 9(11) and (12)”. 

7.With respect, this is unreal.  Given the history of the proceedings, and Mr Lam’s apparent tenacity, it is far-fetched to suggest that if Mr Man had mentioned the point, Mr Lam would not have claimed that he would have wished for legal representation had that been an option available to him. 

8.The applicant was dismissed from the police force with effect from 27 May 2005.  He applied for leave to apply for judicial review shortly thereafter. He was represented in the application.  Leave was refused by A Cheung J after an ex parte hearing.

9.He then appealed to the Court of Appeal, represented by leading and junior counsel.  That appeal was allowed and leave was given.  Then, before Chu J, he was represented by the same leading and junior counsel.  Chu J’s judgment led to the appeal, the subject of this application, where he was also represented.

10.Also, our judgment has to be read in the context of the submission which was made to us.  I believe it is clear from our judgment that the only relevant point which the respondent had raised in relation to the 6^th ground was that the hearing was not unfair because there had been no request for legal representation.  Mr Man had not submitted, so far as I can remember from my imperfect recollection, but certainly not in his written submissions which I have checked, that should we disagree with him on his point, we should go on to consider whether relief should, in any event, be granted to Mr Lam, because he might, after all, not have wished to have legal representation. 

11.To be fair to Mr Man, I believe he had not taken the point, because he realized that should he do so, he would have immediately received a strong retort from the applicant.

12.But, in a case where no request had been made, if it can be shown, that the applicant would not have wished for legal representation, for, say, any of the reasons given by Mr Chow, it may be that relief should be refused.  But I do not believe it is necessary in every case for an applicant to claim that he would have been willing and able to obtain legal representation.

13.Indeed, if one looks at the 6^th ground, it is clearly implicit in the 6^th ground that had it been an option available to him, he would have wished for legal representation, otherwise, the matters stated in the 6^th ground would not make sense.

14.In any event, one can sometimes infer that from the evidence.  It would be surprising indeed if an applicant would not so assert.  Nor do I think, save in exceptional circumstances, the court would permit cross-examination of the applicant on what is basically a hypothetical question.  And I would add, say, in exceptional circumstances, it is unlikely that the court would be able to disregard such an assertion.

15.It is unfair for leave to be given to take a point which had not been argued before us and, which, were it to succeed, would most probably result in a referral to this Court for the relevant facts to be ascertained.

16.Furthermore, I express no view on whether the proposition of law, as stated in the framed question, is correct, I have not heard submission on it.

17.I note, however, in a case where a request had been made, as in Lam Siu Po, Ribeiro PJ said at para. 144:

“144. Believing, no doubt on the footing of regulations 9(11) and 9(12), that it had no such discretion, the tribunal never considered the possibility of its exercise and obviously never examined the factors relevant to such exercise. In my view, this omission made the proceedings inherently unfair. On this basis alone, the conclusion must be reached that the appellant was indeed deprived of a fair hearing so that his conviction and sentence must be quashed.”

18.I believe that if an applicant had not made a request, believing that it would have been futile to do so, that in itself would have been sufficient to lead to the conclusion that he had been deprived of a fair hearing, so that his conviction and sentence must be quashed. 

19.I would refuse leave.

Hon Yeung JA:

20.I agree with the judgment of Tang Ag CJHC

Hon Lam J:

21.I also agree and have nothing to add.

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

Mr Anderson Chow, SC, instructed by the Department of Justice, for the Respondent.