Lam Sze Ming and Another v. The Commissioner of Police

FAMV No. 26 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 26 OF 2010 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 912 OF 2000)

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Between:

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.The applicants were policemen who were charged with but acquitted of gambling in a gambling establishment.  They were subsequently found guilty by a police disciplinary committee of conduct calculated to bring the public service into disrepute.[1]  The conduct in question was frequenting the premises which had been the subject of the criminal charge for the purpose of unlawful gambling between June 1995 and 29 September 1995.  They were dismissed from the Force with effect from 16 March 2000.

2.They complained that the disciplinary hearing was unfair and applied for judicial review.  Burrell J dismissed their application on 25 October 2000.[2] They appealed to the Court of Appeal which, on 23 July 2002, also dismissed their application but with Cheung JA dissenting.[3]  His Lordship held that they had been denied a fair hearing because cautioned statements given by the main witnesses had not been disclosed to them and favoured quashing the decision and ordering a rehearing.  Additionally, the tribunal’s approach to the burden and standard of proof was called in question. 

3.The applicants obtained legal advice favourable to an appeal to this Court and notices of intention to apply for leave were filed on 8 August 2003 and 3 May 2004 respectively.  However, they were not pursued because legal aid was refused and pro bono help was not forthcoming.

4.After this Court handed down judgment on 26 March 2009 in Lam Siu Po v Commissioner of Police,[4] a motion before the Court of Appeal for leave to appeal out of time was taken out on 17 December 2009.  The panel expressed misgivings as to the correctness of that Court’s decision in July 2002, indicating a preference for Cheung JA’s view.  But the motion was nevertheless dismissed on 23 July 2010,[5] applying the principle of finality laid down in HKSAR v Hung Chan-wa.[6]  That application is now renewed before the Appeal Committee.

5.In our view, no basis has been made out for leave to appeal out of time.  Although reliance is placed on Lam Siu Po, the fact that the applicants were not allowed legal representation at the hearing was amply compensated for in the present case.  The grounds for contending that the hearing was unfair were identified and fully argued by counsel on their behalf before Burrell J and the Court of Appeal.  Those were courts of full jurisdiction in the sense explained in Lam Siu Po.  They could have quashed the decision and cured the alleged unfairness.  The real complaint is that they wrongly failed to do so.  The remedy, if that was right, was to seek leave to appeal in relation to the substantive complaints of unfairness, a course fully open to them and in fact embarked on in 2003, but not pursued.  The fact that legal aid and pro bono assistance were not available has never been a sufficient basis for an extension of time.

6.The disciplinary proceedings were concerned with the applicants’ conduct between June and September 1995, that is, almost 16 years ago.  The applicants’ delay of some seven years has undermined the feasibility of any potential rehearing.  In our view, the Lam Siu Po decision in 2009 has no impact on this case.  For the reasons already given, the change of law effected by Lam Siu Po does not assist the applicants in the present application. We are unable to accept Ms Margaret Ng’s submission for the applicants that that decision has somehow altered the standard of judicial review on the requirements of fairness in domestic tribunals, making it essential to the prospects of success in the proposed appeal. 

7.Applying the Hung Chan Wa principle, which we regard as clear and well-established in this jurisdiction, no exceptional grounds for granting leave to appeal have been made out and the application must be dismissed with costs, the applicants’ costs to be taxed in accordance with the Legal Aid Regulations. 

Ms Margaret Ng (instructed by Messrs Hastings & Co. and assigned by the Legal Aid Department) for the 1^st and 2^nd applicants

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