Wong Tak Yiu v. Commissioner of Police

HCAL42/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.42 OF 2010

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Before : Hon Fok J in Court (Open to Public)

Date of Hearing : 21 September 2010

Date of Judgment : 5 October 2010

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J U D G M E N T

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Introduction

1.The applicant was formerly a police constable and was subject to disciplinary proceedings.  He now seeks to apply for judicial review of the decisions taken in the course of the disciplinary proceedings.  Leave to apply for judicial review was not granted on the papers and so an oral hearing was fixed as requested by the applicant pursuant to RHC Order 53, rule 3(3).

Background facts

2.The applicant joined the Police Force in 1993. In March 2002, he petitioned for bankruptcy on the grounds he was unable to pay his debts owed to various financial institutions of about HK$800,000 and, in the same month, he was prohibited from drawing arms until further notice.  He was classified as an officer with Unmanageable Debts (OUD) in April 2002.  On 30 May 2002, a bankruptcy order was made against the applicant.  He was discharged from bankruptcy on 30 May 2006.

3.Disciplinary proceedings were commenced against the applicant in February 2005.  Nine disciplinary charges were laid against him.  This judicial review concerns only Charge A, namely that he failed to be prudent in his financial affairs by incurring unmanageable debts and thereby impaired his operational efficiency contrary to Police General Orders 6-01(8) (“PGO 6-01(8)”), in contravention of Reg. 3(2)(e) of the Police (Discipline) Regulations, Cap. 232 (“the Regulations”).  It is noteworthy that there have been different versions of PGO 6-01(8) at various times including a 1999 version and a 2003 version: the 1999 version was in force at the time of the alleged offence; the 2003 version did not apply to the charge.

4.The applicant was reminded, in a memo fixing the hearing of the disciplinary hearing before the Adjudicating Officer, of his right to be represented by a police officer under Reg. 9(11).  In June 2006, the applicant requested a list of qualified officers within Reg. 9(11)(b).

5.The hearing of the disciplinary proceedings was delayed because the applicant was on sick leave between February 2005 and June 2007.  This was because the applicant was injured on 26 February 2005 while he was on duty.  As a result of his injury he experienced lower back pain.  This in turn led to a depressive disorder for which the applicant has been receiving psychiatric treatment.

6.On 16 July 2007, the applicant pleaded not guilty to the nine charges laid against him, including Charge A.  The proceedings were adjourned to 9 October 2007.  The applicant appeared in person on that date as he was not able to find any police officer within the meaning of Reg. 9(11) to conduct the defence on his behalf. 

7.On 4 December 2007, the Adjudicating Officer delivered his “Summary of Proceedings and Judgment” dated 30 November 2007.  This is the first decision sought to be challenged in the proposed judicial review.  On Charge A, the Adjudicating Officer held there were two elements to prove, namely: that the applicant failed to be prudent in his financial affairs and that serious pecuniary embarrassment stemming from his unmanageable debt had led to the impairment of his operational efficiency as a police officer.  The Adjudicating Officer found both elements of Charge A proved and he found the applicant guilty of all nine charges laid against him.  He referred his findings to a Senior Police Officer pursuant to Reg. 13(3) of the Regulation as he considered the maximum award he could impose was insufficient.

8.By memo dated 21 December 2007, the Senior Police Officer confirmed the Adjudicating Officer’s guilty findings in respect of Charges A, G and I but varied the findings to not guilty in respect of Charges B to F and H.  He awarded a Severe Reprimand and Compulsory Retirement with Deferred Benefits for Charge A.  This is the second decision sought to be challenged in the proposed judicial review.

9.The Senior Police Officer’s Defaulter Report in respect of the applicant was forwarded to the Force Discipline Officer who confirmed the findings and awards made by the Senior Police Officer in his deliberation dated 7 January 2008.  This is the third decision sought to be challenged in the proposed judicial review.

10.The applicant appealed to the Commissioner of Police against the findings and awards in respect of Charges A, G, and I and in particular the terminatory award for Charge A.  The Deputy Commissioner of Police (Management) handled the appeal.  In his deliberation dated 15 July 2008, he confirmed the guilty findings for Charges A, G and I as well as the awards made against the applicant.  By a memo dated 22 July 2008, the applicant was informed of the Deputy Commissioner of Police’s deliberation on his appeal and that he would be compulsorily retired from the Police Force with effect from 24 July 2008.  These are respectively the fourth and fifth decisions sought to be challenged in the proposed judicial review.

11.On 24 July 2008, the applicant was compulsorily retired from the Police Force.

The grounds of review

12.The applicant contends, in summary, that:

(1)     Regs. 9(11) and 9(12) of the Regulations are invalid because they violate his right to have a fair hearing as guaranteed by Article 10 of the Hong Kong Bill of Rights;

(2)     the decisions of the Adjudicating Officer finding the applicant guilty were irrational because there was no sufficient evidence or at all for the Adjudicating Officer to conclude that the applicant’s operational efficiency had been impaired within the meaning of PGO 6-01(8); and

(3)     the decisions of the Senior Police Officer, Force Discipline Officer and the Commissioner confirming the guilty finding were illegal because they erred in law in holding that his operational efficiency had been affected because he was imprudent in his financial affairs.

The Court of Final Appeal’s decision in Lam Siu Po

13.In Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237, the Court of Final Appeal decided that:

(1)     Article 10 of the Bill of Rights applies to police disciplinary proceedings such that there should be a discretion on the part of police disciplinary tribunals to permit an officer to be legally represented where fairness so dictated; and

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

Reasonably arguable grounds of review

14.I am satisfied that the first ground of review, based on the unconstitutionality of Reg. 9(11) and 9(12) of the Regulations, is reasonably arguable and satisfies the leave threshold established by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

15.As to the other two grounds of review, these may be taken together since they relate to the finding of impairment of operational efficiency.  Here, there is certainly room for debate as to whether the grounds relied on are reasonably arguable since there was evidence to show that the applicant’s operational efficiency was impaired by reason of his serious pecuniary embarrassment caused by his financial imprudence.  This evidence was constituted by the decision of two Superintendents that the applicant should not be permitted to carry firearms and the fact that, in consequence of this prohibition, the applicant was removed from normal traffic patrol duties to gate guard and office duties.  Nevertheless, for present purposes, I am prepared to accept that these grounds are also reasonably arguable and meet the relevant threshold test in Po Fun Chan.

The relevant time limit

16.This is set out in the provisions of RHC Order 53, rule 4 and s. 21K(6) and (7) of the High Court Ordinance, Cap. 4.  The former provides:

“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

(3)       The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.”

And the latter provide:

“(6) Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant—

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(7)       Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.”

The need for an extension of time

17.The decisions which the applicant seeks to challenge were each respectively made on 30 November 2007, 21 December 2007, 7 January 2008 and 22 July 2008.  For the purposes of an application for judicial review, time started to run from each of the relevant decisions.

18.However, the Form 86A Notice in this matter was not issued until 19 April 2010, approximately 21 months from the date of the last decision sought to be challenged.  It was therefore accepted on behalf of the applicant that an extension of time under the relevant provisions was required.

The considerations relevant to an extension of time

19.In Lam Chi Wai v Commissioner for Police, unrep., HCMP311/2010, 24 June 2010, in the context of an application to extend time for an appeal, Kwan JA set out the legal approach to be adopted in the following terms (at §5):

“(1) The starting point must be where time for appeal has expired, the matter is at an end (Lau Luen Hung Thomas v. Insider Dealing Tribunal, HCMP1751/2007, 28 February 2008, para 7; R v. Unger [1977] 2 NSWLR 990 at 995D). The practical necessity for finality of decision in the legal process is a very important consideration, it applies to civil and criminal proceedings alike (Tsang Yiu Kai & Ors v. Insider Dealing Tribunal, HCMP1322/2007, 18 December 2007, para 33).

(2) Whether time should be extended for appeal is a matter of discretion for the court. The burden is on the applicant to justify exercise of that discretion in his favour. The exercise of discretion is guided by the principles stated in HKSAR v. Hung Chan Wa (2006) 9 HKCFAR 614, a decision of the Court of Final Appeal, paras 21 to 25. Time should not be extended only on the ground that an authoritative judgment subsequent to the decision in question has held the previous understanding of the law to be incorrect. There could be exceptional circumstances which would justify an extension of time and a departure from the principle of finality, but circumstances must be so exceptional that the occasions when they would be held to exist would be very rare.

(3) A change in the understanding of the law, even though fundamental, is not an exceptional circumstance (Tsang Yiu Kai, paras 27 & 30; Lau Luen Hung Thomas, 28 February 2008, para. 8), nor would the fact that the appeal is likely to succeed be a sufficient exceptional circumstance, although lack of merits or substantial merits in an appeal would be a good reason to refuse leave (Lau Luen Hung Thomas v. Insider Dealing Tribunal, HCMP1017/2008, 9 April 2009, para 25). Merit as a factor, though relevant, is not a sufficient reason for extension of time to be granted, it can only attract limited weight (Chan Kang Chau Clarence, 19 May 2010, para 12; Li Kin Wah, paras 27 to 29).

(4) The longer the delay in bringing the appeal, the more compelling the reason has to be for granting an extension (Li Kin Wah, para 30; R v. Ballinger [2005] 2 Cr App R 433 at 438). Where the delay in bringing the appeal is not the consequence of a known and erroneous state of the law, the practical necessity of finality applies with greater force (Li Siu Hing v. Commissioner of Correctional Services, CACV277/2009, 19 March 2010, para. 10)

(5) The prejudice to the applicant such as loss of substantial pension benefits on compulsory retirement and the lack of legal aid to bring an appeal are not, by themselves, exceptional circumstances for this purpose (Ho Ho Chuen, para 14; Wong Chi Keung, paras 57 and 69).

(6)      The detrimental impact of granting extension of time on good administration and floodgates considerations are relevant to the exercise of discretion against the applicant (Tsui Kin Kwok Johnnie, para 50; Li Kin Wah, paras 31 to 38; Wong Chi Keung, paras 73 to 86).”

20.Mr Hectar Pun, counsel for the applicant, submitted that Lam Chi Wai was not binding on me since it was an application for leave to appeal out of time and not an application for an extension of time for the purposes of applying for judicial review.  However, I do not perceive there to be any material difference in the application of the principle of finality whether the case is one of an application to appeal out of time or to extend time to bring an application for judicial review.  In Tsui Kin Kwok Johnnie v Commissioner of Police, unrep., HCAL50/2009, 26 February 2010, A. Cheung J held:

“33. It is true that in all these cases, the courts were concerned with an application for time to appeal, rather than an application for time to apply for leave to apply for judicial review. However, in my view, this is an immaterial distinction. What is involved in either situation is the exercise of the court’s discretion to extend time notwithstanding the time restrictions laid down in the relevant provisions. As the courts have emphasised in these cases, finality is an important public policy to bear in mind. Finality, in this regard, is not limited to orders or judgments made by a superior court of record. In Lau Luen Hung Thomas, a penalty order made by the Insider Dealing Tribunal was the subject matter of the proposed appeal. In Ho Ho Chuen, although the judgment of the Court of First Instance was in issue, the underlying dispute arose out of decisions made in police disciplinary proceedings.

34.      Bearing in mind the nature of police disciplinary proceedings and the elaborate statutory procedure involved, I have no doubt that consideration of finality applies to decisions made in those proceedings as it applies to judgments and orders made in conventional courts of law.”

21.Furthermore, the Appeal Committee of the Court of Final Appeal recently addressed the principle of finality in Clarence Chan v Commissioner of Police, unrep., FAMV15/2010, 14 September 2010.  It was submitted in that case that two of the questions of law put forward for the Court of Final Appeal’s attention were:

“(1) whether finality as stated in the principle for extension of time in [HKSAR v. Hung Chan-wa (2006) 9 HKCFAR 614] is engaged in extending time in an application for judicial review which involves the constitutionality or legality of a statute of great public interest and importance;

(2)      whether, in the alternative, finality is engaged before the substantive hearing of the application for judicial review;”

22.Giving the Determination of the Appeal Committee, Bokhary PJ said:

“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.”

23.In the circumstances, I see no reason to adopt a different approach to that summarised by Kwan JA in Lam Chi Wai. It is necessary therefore to consider the facts and circumstances of this case to determine whether good reason for an extension of time has been shown.

The factors relied upon by the applicant

24.The following factors were relied upon by the applicant as constituting good reason for the delay and therefore justifying the exercise of the court’s discretion in favour of an extension of time to apply for judicial review: (1) the applicant’s health conditions between July 2008 and now, (2) the death of his father, (3) the time taken to apply for legal aid, and (4) the time spent waiting for the Commissioner’s response to the applicant’s proposed settlement.  I shall address each of these in turn.

Factor (1): the applicant’s health

25.The submission made on behalf of the applicant was, in summary, as follows.  He was injured while on duty in February 2005 and suffered from lower back and leg pain.  He also developed depression and received psychiatric evaluation and treatment.  He was assessed, in a psychiatric report of a Dr Ronald Chen dated 10 July 2006, as having suffered from a depressive disorder after the accident.  In a psychological report dated 22 May 2007, a Dr Edmund Lau, clinical psychologist of the Police Force, recorded his impression that the applicant suffered from depressive symptoms for the preceding year and a half due to his prolonged pain problems and the stress of having to cope with the disciplinary proceedings against him.

26.The applicant was granted sick leave after the accident until 5 June 2007.  Thereafter, the disciplinary proceedings took place.  There is no suggestion that the applicant was not fit to participate in those proceedings, nor is there any evidence that he advanced any contention that he was not able to do so by reason of his own state of health.

27.Furthermore, on 15 July 2008, shortly before he was compulsorily retired from the Police Force, he was examined by Dr Peter Yu, a psychiatrist instructed by the Secretary for Justice, who reported on 4 August 2008 that the applicant was suffering from a mild illness, indicating depression, which did not seem to affect most of his functioning.  Although I take into account that this report was obtained in the context of a claim by the applicant for a disability allowance and therefore was prepared by an “adverse” interest to that of the applicant, I consider that it provides a counterpoint to the report of Dr Ronald Chen dated 11 October 2008 on which considerable reliance was placed by the applicant in support of the contention that his health was such as to provide a good excuse for his inaction in the period following his compulsory retirement.

28.Although the evidence does disclose that the applicant has some mental disability arising from his accident in 2005, I do not think that this factor, on its own, is sufficient to provide a good reason for extending time for the application for judicial review in the present case.  Many litigants suffer from disabilities of various degrees of severity but are not relieved of the obligation to adhere to time limits.  I do not regard the applicant’s disability as being of such a severity that he could not have instituted any judicial review proceedings against the outcome of his disciplinary proceedings immediately or within three months following their conclusion on 22 July 2008.  

29.First, he was able to participate in the disciplinary process without any apparent protest on his part. 

30.Secondly, in the Form 86A Notice, at §107, it is stated:

“After the Applicant was dismissed from the Police Force on 24 July 2008, he sought assistance from his friends and former colleagues who had had some experience in police disciplinary proceedings. He was invariably informed that it was extremely difficult to challenge the said decisions. He was further informed by his friends that no legal aid would be granted to him to challenge the said decisions.”

This demonstrates two matters, namely that the applicant was actively discussing the state of his disciplinary case with friends and colleagues in the immediate aftermath of its outcome and also that he was dissuaded, as a result of the discussions that took place, from pursuing an application for legal aid to take the matter further.  This was therefore a conscious decision on his part.

31.Thirdly, it is significant that, notwithstanding the alleged extent of his mental disability, the applicant applied for legal aid on 30 March 2009, only four days after the date of the Court of Final Appeal’s judgment in Lam Siu Po v Commissioner of Police.  This shows again, in my judgment, that the applicant must have been following that case closely or been advised by others who were doing so. In either event, there was no dilatoriness on the part of the applicant in the aftermath of the Court of Final Appeal’s judgment in that case.  The inference that must inevitably follow is that the applicant was not prevented by his mental disability from prosecuting an application for legal aid in order to bring judicial review proceedings once he perceived there was a prospect of obtaining legal aid.  One can therefore assume that, had he thought there was any such prospect before 30 March 2009, he could and would have taken the necessary steps.

Factor (2): the death of the applicant’s father

32.The evidence is that the applicant’s father was diagnosed with end-stage lung cancer in about August 2007, to which he ultimately succumbed on 30 September 2008.  It was contended on behalf of the applicant that he was required to look after his ailing father from late 2007 to September 2008 and that, in the month following his father’s death, he had to deal with the relevant funeral arrangements and other incidental matters.

33.This is obviously a matter for which the applicant deserves to be treated with sympathy.  The loss of a parent is a matter which will cause grief and very likely also stress and anxiety.  At the very least, it will cause considerable distraction.  On the other hand, the applicant was able to deal with the disciplinary process itself in the period from July 2007.  Whilst his father’s declining health can be assumed to have been a distraction for the applicant, it was not so disruptive as to prevent him participating in the disciplinary process altogether.  There is no evidence that he sought to defer the matter because of his father’s illness.

34.Notwithstanding the obvious sympathy the court feels towards the applicant because of his father’s illness and death, I am not persuaded that this factor is an exceptional circumstance justifying the extension of time.  I refer again in this context to the two matters referred to in paragraphs 29 and 30 above.  I am not persuaded that the applicant could not have commenced judicial review proceedings within the three month period following the final decisions in the disciplinary process of 22 July 2008, had he so wished.

Factor (3): the time taken to apply for legal aid

35.It was contended on behalf of the applicant that the time taken to apply for legal aid should be discounted from the period of any delay in the bringing of the application for judicial review.  As noted above, the applicant applied for legal aid on 30 March 2009 and it was only on 2 October 2009 that a Legal Aid Certificate was granted to the applicant and solicitors assigned.

36.As noted in Wong Chi Keung & others v Commissioner of Police, unrep., HCAL1, 20 & 21/2010, 11 May 2010 (at §58), the English Court of Appeal held in R v Stratford-on-Avon DC & anor, ex parte Jackson [1985] 3 All ER 769 (at 773a-b) that the difficulty in obtaining legal aid, if there is no fault on the part of the applicant, is a good reason for an extension of time.

37.I therefore accept that there is good reason for the delay in the period from 30 March 2009 until the filing of the Form 86A Notice on 19 April 2010.  That is not to say that in all cases the time taken in the process of applying for legal aid will provide a good excuse for delay.  There may be cases where the delay is not so excused.  But, in the present case, given the large number of fresh applications by former police officers who had been the subject of disciplinary proceedings, I am prepared to accept that the delay from 30 March 2009 to the grant of the Legal Aid Certificate on 2 October 2009 and then to the filing of the Form 86A Notice on 19 April 2010 was justified.

38.However, this only excuses part of the period of delay for which the applicant must provide a good excuse.

Factor (4): the time spent waiting for the Commissioner to respond to correspondence

39.On 13 May 2009, the applicant wrote to the Commissioner of Police asking the Commissioner to reinstate him as a police officer.  The Commissioner issued an interim reply to the applicant on 19 May 2009 acknowledging the receipt of the applicant’s letter.  On 13 October 2009, the applicant’s solicitors wrote to the Commissioner of Police to inquire whether he would be prepared to declare the applicant’s conviction and sentence as invalid and to reinstate him.  On 9 April 2010, the applicant’s solicitors again wrote to the Commissioner asking for a reply to the applicant’s letter of 13 May 2009 and their letter of 13 October 2009.  On 13 April 2010, the Commissioner wrote another holding letter stating, “we are now considering your request and will furnish a reply to you in due course”.

40.It was contended on behalf of the applicant that it was reasonable for the applicant to wait for the Commissioner’s response to what was, in effect, a proposed settlement.  Reliance was placed on the case of R v Newham LBC, ex parte Ajayi (1996) 28 HLR 25.

41.I do not consider this period of waiting for the Commissioner’s response to the letters from the applicant and his solicitors should be discounted from the period of delay, or, to put it another way, that the correspondence provides a good reason for not bringing judicial review proceedings promptly and in any event within three months of 22 July 2008.  In my judgment, the case of Ajayi is distinguishable on its facts, involving as it did not only the fact of inactivity in response to correspondence but also the act of leaving the applicant in occupation of temporary accommodation.  The position here is very different since the applicant had already been compulsorily retired from the Police Force on 24 July 2008 and was no longer a police officer at the time of the hiatus caused by the correspondence.

42.Furthermore, I consider this argument is a bad point for the reasons given by A. Cheung J in Tsui Kin Kwok Johnnie v Commissioner of Police, unrep., HCAL50/2009, 26 February 2010 at §§54 to 55.

43.But it is strictly not necessary to resolve whether that is in fact the case since, in any event, the period during which the applicant was waiting for a response to his letter falls after the period when he had already applied for legal aid and, as I have held above, I am prepared to accept that the time spent waiting for the outcome of the application for legal aid is a good reason for part of the delay.  The period of time with which this factor is concerned is therefore not material to the overall question of whether the applicant has shown a good reason for the delay as a whole.

Has the applicant shown a good reason for the delay?

44.Mr Pun submitted that, given the strength of the applicant’s case and the short period of delay, good reason for an extension had been shown.  He also submitted that there would be considerable prejudice to the applicant if an extension were not granted, yet no prejudice would be suffered by the Commissioner if one were.

45.Mr Pun also contended that, even if the court did not regard any one of the reasons put forward in this case as sufficient to justify an extension of time, the reasons were cumulatively sufficient on the particular facts of this case to justify an extension of time.

46.I have considered all these submissions carefully since Mr Pun is, in my opinion, correct in saying that one may have regard to the cumulative effect of different factors.  As to the merits, however, I have referred to the judgment of Kwan JA in Lam Chi Wai v Commissioner for Police at §5(3) (see above).  Neither a change in the understanding of the law, nor the likelihood of success on an appeal will be a sufficient exceptional circumstance justifying the grant of an extension of time.  As to the period of delay, even taking the period to be that from 22 July 2008 to 30 March 2009 (the date of the application for legal aid), no application for judicial review was brought for a period of over 8 months, well over the maximum period of three months provided under the rules.  I do not regard this as negligible or so short a period of delay as to justify a departure from the need to show good reason for the extension to the threshold established by the Court of Final Appeal in HKSAR v Hung Chan Wa.

47.I have noted above that the court will be sympathetic to situations of bereavement and illness but that sympathy cannot be taken too far.  An extension of time will only be granted in exceptional circumstances and the Court of Final Appeal has recently reiterated that the circumstances must be so exceptional that the occasions when they would be held to exist would be “very rare” (see §22 above).  In the present case, the applicant took advice from friends and colleagues in the immediate aftermath of his compulsory retirement from the Police Force and did not pursue an application for judicial review or legal aid for that purpose.  I do not consider that the evidence establishes that, exceptionally, he should be excused from taking the steps he should have done in order to challenge the various decisions sought to be challenged in this intended judicial review.  On the contrary, his immediate action after the outcome of Lam Siu Po v Commissioner of Police was known shows, in my opinion, that he was well able to pursue a remedy if he had so chosen.  The fact that he chose not to (which I consider to be a reasonable inference on the evidence) is a significant impediment to his showing good reason for the delay.

Detriment to good administration

48.It is strictly not necessary to deal with this argument, since I have held that the applicant has not shown good reason for an extension of time.  However, I shall deal with this point as it was addressed by the parties.

49.Ms Bethany Choi, counsel for the Commissioner of Police, contended that it would be detrimental to good administration of the Police Force if leave to apply for judicial review were granted despite the delay since there would be practical difficulties in conducting a rehearing in the circumstances of this case, particularly with regard to witnesses, and there would be a possible floodgates given the substantial number of police disciplinary hearings since 8 June 1991.  It was also submitted that the Police Force would encounter administrative difficulties in rehearing disciplinary cases in general and also in reinstating former police officers.

50.Evidence from the Assistant Commissioner of Police (Personnel), who is the Force Discipline Officer, was filed in support of these contentions.  This evidence was similar to the evidence filed in Wong Chi Keung & Others v Commissioner of Police and discussed at §§74 to 79 of the judgment in that case, although the specific evidence in relation to the applicant’s case here is different to the specific evidence in relation to those particular cases.

51.In the present case, re-opening disciplinary proceedings that concluded in July 2008 would not appear to pose an insurmountable difficulty.  Indeed, it was confirmed by Ms Choi that the applicant’s service record was still available.  All of the witnesses called in the disciplinary proceedings are still serving in the Police Force.  There was a complete record of the evidence given by the various witnesses in this case and there were copies of all documents relied on. Mr Pun noted that, in Lam Siu Po’s case, there would be a re-hearing of disciplinary proceedings in relation to an incident in 2001.

52.Although the evidence of detriment to good administration is not as strong in this case as it was in respect of the three applicants in Wong Chi Keung & Others v Commissioner of Police, I would have exercised my discretion against the applicant, even if he had shown good reason for an extension of time since I am satisfied it would be detrimental to good administration to do so.  The evidence concerning the prohibition on the applicant carrying firearms consisted of assessments made in 2002.  There is clearly a risk that a rehearing would be prejudiced by the passage of time, notwithstanding the availability of witnesses and the record of their earlier evidence.  The practice of reinstating officers where disciplinary proceedings are quashed would, I am satisfied, give rise to administrative difficulties in re-integrating a police officer who has been retired now for over two years and there is, I accept, an issue of the impact of morale of the Police Force if such reinstatement were made.  I note, in this context, that, in Lam Chi Wai v Commissioner of Police, Kwan JA took into account (at §§15 to 18) the general evidence of prejudice and the detrimental effect on good administration in concluding that she would have exercised her discretion against extending time even if a good reason for the delay had been shown.

Conclusion

53.For the reasons set out above, I decline to exercise my discretion to grant an extension of time and the application for leave to apply for judicial review is accordingly dismissed.

54.I make an order nisi that the costs of the proceedings be paid by the applicant to the Commissioner of Police, to be taxed if not agreed.  The applicant’s own costs should be taxed in accordance with the Legal Aid Regulations.

Mr Hectar Pun, instructed by Messrs Cheung & Yip, for the Applicant

Ms Bethany Choi, instructed by the Department of Justice, for the Putative Respondent