Lam Chi Pan v. Commissioner of Police

FAMV No. 35 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2010 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 193 OF 2008)

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Between:

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Appeal Committee: Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Mortimer NPJ

Hearing and Decision:  8 February 2011

Handing Down of Reasons: 11 February 2011

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.This application for leave to appeal was dismissed for reasons to be given later. These are our reasons. While this is the Commissioner’s application, we shall refer to Mr Lam Chi Pan as “the applicant” since he was the applicant for judicial review in the courts below.

The course of the proceedings

2.On 13 December 2004, the applicant was found guilty of conduct calculated to bring the public service into disrepute and on 27 May 2005, the Commissioner dismissed him with immediate effect, forfeiting earned leave.

3.On 22 July 2005, the applicant applied for leave to bring judicial review proceedings and, on 10 November 2005, A Cheung J refused leave.  On appeal to the Court of Appeal the applicant sought leave to adduce fresh evidence and that Court decided on 1 December 2006 to admit such evidence, enabling him to raise as a new ground, the complaint that he had been denied a fair hearing because the officer representing him had ignored instructions and failed to challenge important identification evidence.  Chu J, by her judgment dated 30 May 2008, dismissed the application for judicial review on its merits.  On 17 July 2008, the applicant lodged an appeal to the Court of Appeal and, on 1 September 2008, the Commissioner filed a respondent's notice. 

4.Before the appeal came on for hearing, on 26 March 2009, this Court handed down judgment in Lam Siu Po v Commissioner of Police,[1] holding that the imposition of a blanket restriction against professional legal representation in police disciplinary proceedings by regulations 9(11) and 9(12) of the Police (Discipline) Regulations[2] is unconstitutional as contrary to Article 10 of the Hong Kong Bill of Rights.

5.On 3 November 2009, the applicant filed a Supplementary Notice of Appeal seeking to rely on Lam Siu Po and contending that his hearing was likewise in breach of Article 10.  It should be noted that this was not a case where the applicant was seeking an extension of time to rely on Lam Siu Po.  Otherwise the principles established in HKSAR v Hung Chan-wa[3]would apply.   As the Court made clear in that case, the overturning of a previously held view as to the validity of relevant legal provisions is not a sufficient ground for extending time to appeal, it being a requirement of finality that such an extension should only be contemplated in rare and highly exceptional cases.   In the present case, the applicant’s appeal was pending when he was given leave, in the discretion of the Court of Appeal, to expand the range of his arguments to include the Article 10 challenge.

The Court of Appeal’s decision

6.That challenge succeeded.  The Commissioner sought to distinguish Lam Siu Po arguing that whereas there, the applicant had requested and been refused professional legal representation, no such request had been made by the applicant in the present case.  Adopting the approach of the European Court of Human Rights in Werner v Austria,[4]the Court of Appeal rejected that argument, holding that it was unrealistic to require such a demand as a prerequisite to complaining about an unfair hearing since, at the relevant time, that demand would have had no prospects of success given the restriction laid down in the rules. 

Leave sought by the Commissioner

7.The Commissioner now seeks leave to appeal with a view to challenging the correctness of the Court of Appeal’s decision.  He submits that the following question arises, being a question of the requisite general or public importance :

“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?”

8.Mr Anderson Chow SC, appearing for the Commissioner, argued that the key question is whether the disciplinary hearing was unfair and sought to contend that in answering it, the Court of Appeal wrongly discounted the importance of the absence of any request by the applicant for legal representation.  Secondly, he submitted that where no request was made, evidence explaining its absence is necessary, since without it, the court is unable properly to determine whether the applicant was denied a fair hearing.  Those propositions were said to raise questions of a sufficient importance to justify an airing before the Court.

9.We are unable to agree.  The ratio of the Court of Appeal’s judgment is considerably narrower than suggested in the question formulated by the Commissioner.  It decided that an applicant for judicial review cannot be excluded from complaining of an unfair hearing because he failed to request professional legal representation when such a demand would have had no prospects of success in the light of the then applicable rules. Mr Chow SC, with his customary ability, advanced grounds for contending that the decision was not correct.  But whether or not the Court of Appeal was right, the problem he had to face was whether the question raised could be said to be of the necessary importance.

10.It appears that there are no other cases pending or likely which would fall within a pre-Lam Siu Po category and which would be capable of surmounting the obstacle constituted by the Hung Chan-wa[5] principle.  It may at some stage be necessary in a post-Lam Siu Po case for the Court to determine whether an applicant’s failure to request legal representation ‒ no longer viewed as a futile demand ‒ is or is not material to deciding whether a disciplinary hearing was unfair.  Such a question might have the requisite importance.  But the correctness or otherwise of the Court of Appeal’s conclusion in the present case, dealing with the pre-Lam Siu Po situation in which the exclusionary rule is assumed to be valid and binding, would throw no light on that issue.

11.Nor are we persuaded that leave should be granted on the basis that the Court’s decision would give guidance in relation to other tribunals where legal representation is excluded.   As with Police disciplinary tribunals, there is no indication that any cases dealt with on a pre-Lam Siu Po basis and capable of satisfying the HKSAR v Hung Chan-wa test are in the pipeline or even likely to materialise.

12.We are therefore not satisfied that the question which would arise if leave were to be granted is one of great general or public importance.

13.The proposed question concerning a possible requirement for evidence as to why a request for legal representation was not made, cannot sensibly be addressed in isolation from the first question.  It does not independently justify the grant of leave.

14.For the above reasons, leave to appeal was refused with costs.

Mr Anderson Chow SC (instructed by the Department of Justice) for the applicant

Mr Johannes Chan SC and Mr Kwok Sui Hay (instructed by Messrs Gary K W Tam & Co and assigned by the Legal Aid Department) for the respondent