Tsui Kin Kwok Johnnie v. Commissioner of Police

CACV 38/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 38 OF 2010

(ON APPEAL FROM HCAL NO. 143 OF 2009)

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BETWEEN

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Before: Hon Tang Ag CJHC, Stock VP and Yeung JA in Court

Date of Hearing: 2 March 2011

Date of Judgment: 2 March 2011

Date of Reasons for Judgment: 28 March 2011

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REASONS FOR JUDGMENT

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Hon Tang Ag CJHC (giving the reasons for judgment of the Court):

1.The Plaintiff was a policeman. Following certain disciplinary proceedings, namely, WCHDR11/1997 and WCHDR1/1998 (“the disciplinary proceedings”), he was ordered to be compulsorily retired from the force, with deferred pension, with effect from 15 October 1998. At the relevant time, there was a blanket restriction on professional legal representation in police disciplinary proceedings.

2.On 27 June 2008, the Plaintiff reached the age of 55, the compulsory retirement age for police officers, and he has been receiving pension even since.

3.On 26 March 2009, the Court of Final Appeal handed down its judgment in Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237.  There, it was held that regulations in the Police (Discipline) Regulations, Cap 232A, which imposed a blanket restriction on professional legal representation in police disciplinary proceedings (“the relevant regulations”), so preventing a tribunal from complying with its duty of fairness, were incompatible with Article 10 of Hong Kong Bill of Rights Ordinance and so null and void.  As a result, while there was no absolute right to legal representation, that tribunal had a discretion to permit such representation where fairness so required.

4.Following the decision in Lam Siu Po and relying on it, on 11 May 2009, the Plaintiff applied in HCAL 50/2009 for leave to apply for judicial review.  In that application, he asked for an extension of time to apply for leave to apply for an order of certiorari to quash the Plaintiff’s convictions and sentences imposed in the disciplinary proceedings. Alternatively, he sought leave to apply for an order of mandamus ordering the Commissioner of Police to review those orders or decisions.  An extension of time was required because of O. 53 r. 4.

5.On 29 December 2009, the Plaintiff commenced the present proceeding, HCAL 143/2009, by originating summons.  In the present action, the Plaintiff claims the following reliefs:

“1. A declaration that the disciplinary proceedings of WCH DR 11/1997 (‘WCH DR 11/1997’) and WCH DR 1/1998 (‘WCH DR 1/1998’) conducted by the Defendant did infringe the Plaintiff’s right to fair hearing guaranteed under Article 10 of the Bill of Rights (‘the BOR’) and therefore unlawful;

2. The resulting convictions and sentences be quashed, namely,

WCH DR 11/1997:

(i) The finding dated 26^th March 1997 made by the Defendant that the Plaintiff was guilty of the disciplinary offences charged, the consequent award of severe reprimand dated 16^th April 1997, the subsequent increased award of compulsory retirement, suspended for 12 months dated 21^st July 1997 and the ultimate execution dated 8^th October 1998 of the award of compulsory retirement (with deferred pension) with effect from 15^th October 1998.

WCH DR 1/1998:

(ii) The finding dated 9^th June 1998 made by the Defendant that the Plaintiff was guilty of a disciplinary offence charged and the consequent award of severe reprimand dated 13^th June 1998 made pursuant thereto.

3. Further or alternatively, a declaration that either or both procedural requirement(s) as stipulated under RHC, O.53, r.3(1) and r.4(1) and (2), i.e. the requirement for leave to apply for judicial review and/or the prescribed limitation period of 3 months is/are inconsistent with the BORO (where there is no requirement for leave and no specified time limit) and therefore shall not be applied in any action for breach of the BORO, or in other proceedings (including a judicial review) in which a violation or threatened violation of the BOR is relevant;

4. Further or alternatively, a declaration that the prescribed time limit of 3 months and the relevant deeming provision under RHC, O.53, r.4(1) and (2) ultra vires the empowering Section 21K(6) of the High Court Ordinance, Cap.4 (where there is no specified time limit);”

6.The Commissioner applied by summons dated 15 January 2010 to have the Plaintiff’s originating summons struck out as an abuse of process.  That was heard by A Cheung J, who on 22 January 2010, struck out the originating summons.  I should mention that on the same occasion, the learned judge also heard an application by the Plaintiff to stay HCAL 50/2009 in favour of the present action, which he had refused.

7.In A Cheung J’s reasons for decision handed down on 29 January 2010, he said:

“11. The first item of relief sought in the originating summons in the new action was a declaration that the way the disciplinary proceedings in question had been conducted had infringed Mr Tsui’s right to a fair hearing guaranteed under article 10 of the Hong Kong Bill of Rights and they were therefore unlawful. Item (2) therefore sought an order to quash the resulting convictions and sentences. They were plainly public law matters that ought to be dealt with in judicial review proceedings, rather than in a private law action: O’Reilly v Mackman [1983] 2 AC 237. On the facts of the present case, there was simply no reason why those remedies should be pursued in a private law action. Indeed, Mr Tsui had taken the right step of commencing HCAL 50/2009 to seek leave to apply for judicial review to challenge the relevant convictions and sentences. It is true that he was outside the three month time limit for applying for leave and he had to ask for an extension of time from the Court, but that fact did not by itself provide any reason for not pursuing his remedies by means of judicial review.

12. Moreover, having commenced HCAL 50/2009 to seek the public law remedies, it was quite wrong for him to commence a second action seeking the same or similar relief.  That, by itself, was an additional reason for concluding that the new action constituted an abuse of the process of the court.”

8.The learned judge also rejected the Plaintiff’s submission that the time limit for application for leave to apply for judicial review was unconstitutional.

9.Meanwhile, in HCAL 50/2009, on 26 February 2010, A Cheung J refused an extension of time and held that there were no exceptional circumstances justifying an extension of time.  In doing so, he followed the decision of the Court of Final Appeal in HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614.  A Cheung J also rejected the argument that O. 53 r. 4 was illegal because it has contravened section 6(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383. 

10.The Plaintiff was dissatisfied with the decision of 26 February 2010 and applied for an extension of time to appeal to this Court.  The application was dismissed on 10 June 2010 and our Reasons for Decision was handed down on 24 June 2010.  The Plaintiff then applied to us for leave to appeal to the Court of Final Appeal, and that was rejected on 16 September 2010. 

11.This is the Plaintiff’s appeal from the Decision of A Cheung J striking out his originating summons as an abuse of process.

12.Mr Anthony Butt (leading Mr Alan Woo) appeared for the Plaintiff.  Mr Butt submitted that the decisions in the disciplinary proceedings were void ab initio, thus they had no effect.  I question whether Lam Siu Po necessarily rendered any decision made while the relevant regulations were in force null and void, but even assuming that to be so, it does not mean, as Mr Butt seemed to have suggested that the decisions could be ignored. 

13.In O’ Reilly v Mackman [1983] 2 AC 237 at 283, Lord Diplock said that even in the case of a decision which was void ab initio:

“[if it was not challenged] within the applicable time limit, public policy, expressed in maxim omnia praesumuntur rite esse acta, requires that after the expiry of the time limit it should be given all the effects in law of a valid decision”.

14.Mr Butt submitted that Boddington v British Transport Police [1999] 2 AC 143, a later decision of the House of Lords, is to the contrary effect.  The headnotes in  that case shows:

“[Boddington] smoked a cigarette in a carriage where smoking was expressly prohibited by a notice conspicuously displayed to that effect. [He] was convicted by a stipendiary magistrate of smoking a cigarette in such a carriage contrary to byelaw 20 [which were] made under section 67 of the Transport Act 1962 (as amended). The stipendiary magistrate rejected [Boddington’s] challenges to the validity of the byelaw and the administrative decision to implement the ban. On appeal by way of case stated the Divisional Court of the Queen’s Bench Division dismissed [Boddington’s] appeal, holding that issues of procedural and substantive invalidity of byelaws did not fall within the jurisdiction of a criminal court, and any challenge to the validity of an administrative decision was also beyond the jurisdiction of a criminal court.”

15.On appeal, the House of Lords held that Boddington:

“… was not precluded from raising in a criminal prosecution the contention that a byelaw or an administrative act undertaken pursuant to it was ultra vires and unlawful, and in that regard there was no distinction to be drawn between substantive and procedural error; and that, accordingly, the defendant was entitled to raise the issue of the legality of the decision by the railway company to display no smoking notices throughout its trains …”

16.However, the appeal was dismissed because it was held that the byelaw was not unlawful.

17.Mr Butt relied on what Lord Irvine of Lairg L.C. said at page 155:

“Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred. In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all. The burden in such a case is on the defendant to establish on a balance of probabilities that the subordinate legislation or the administrative act is invalid: see also Reg. v. Inland Revenue Commissioners, Ex parte T.C. Coombs & Co. [1991] 2 A.C. 283.”

18.I do not believe what Lord Irvine said is in anyway inconsistent with the observations of Lord Diplock in O’ Reilly v Mackman quoted above.

19.Indeed, Hung Chan Wa is inconsistent with Mr Butt’s submission.  There the Court of Final Appeal found it unnecessary to determine whether the courts had the power to engage in a prospective overruling because, apart from exceptional circumstances, time would not be extended for appeal against conviction on a ground only that a subsequent judgment has held a previous understanding of the law to be incorrect. 

20.Hung Chan Wa was concerned with a criminal conviction.  However, the same has been applied to non-criminal matters.  See, for example, Lau Luen Hung Thomas v. Insider Dealing Tribunal and Anor, HCMP 1017/2008 (unreported, 9 April 2009) (CA); (2009) 12 HKCFAR 955, where this Court and the Court of Final Appeal respectively refused an extension of time to appeal against an order imposing a penalty under section 23(1)(c) of the Securities (Insider Dealing) Ordinance, Cap. 395, which were subsequently declared invalid for violation of Articles 10 and 11 of the Hong Kong Bill of Rights in Koon Wing Yee v. Insider Dealing Tribunal and Anor (2008) 11 HKCFAR 170.

21.Mr Butt also drew attention to the UK Human Rights Act 1998 under which a person who claims to be a victim of an unlawful act within the meaning of section 6 of the Human Rights Act 1998, may bring proceedings, under the Human Rights Act 1998, in the appropriate court or tribunal, and that section 7(5) provided that such proceedings

“(5) … must be brought before the end of—

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.”

22.Mr Butt compared those provisions with section 6 of the Hong Kong Bill of Rights Ordinance, which imposed no time limit.  But that does not mean that when a person is seeking, in effect, public law relief, it would not be an abuse of process for him to do so by private action.  Moreover, the decisions under challenge took place many years prior to the present action. 

23.It is to be noted that in para. 2 of the originating summons, the Plaintiff seeks an order that the convictions and sentences be quashed.  Such reliefs are normally only available by an order of certiorari.

24.So whatever rights section 6 might have conferred on the Plaintiff, I have no doubt that the originating summons was properly struck out. 

25.In paras. 3 and 4 the Plaintiff seeks declarations that the requirement for leave to apply for judicial review and the prescribed limitation of 3 months are inconsistent with the Hong Kong Bill of Rights Ordinance and are ultra vires the empowering provisions in section 21K(6) of the High Court Ordinance, Cap. 4, an argument that already rejected in HCAL 50/2009 and its related appeal.

26.In para. 1 of the originating summons, the Plaintiffs is seeking a declaration which is a discretionary remedy.  Since he has been refused leave to seek in the judicial review proceedings, I have no doubt that it is an abuse of process to seek a declaration in the present proceedings.

27.For the above reasons, I have no doubt that the Plaintiff’s claim was properly struck out, the appeal was dismissed with costs.

Mr Anthony Butt and Mr Alan Woo, instructed by K Y Woo & Co, for the Plaintiff/Appellant.

Mr. Nicholas Cooney SC and Mr Mike Lui, instructed by the Department of Justice, for the Defendant/Respondent.