Chau Cheuk Yiu v. Poon Kit Sang and Others

FACV No. 7 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2011 (CIVIL)

(ON APPEAL FROM HCMP NO. 121 OF 2010)

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BETWEEN :

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J U D G M E N T

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Mr Justice Bokhary PJ :

1.This appeal is about the circumstances in which it is appropriate to grant an extension of time for the purpose of bringing an appeal in order to secure a right due under a belated realization by the judiciary of the true state of the law in a fundamental respect.

Disciplinary hearing and judicial review proceedings

2.On 7 May 2004, after 25 years’ service in the Police Force, Senior Police Constable Chau Cheuk Yiu was compulsorily retired.  Even when dealing with the period when he still held that rank, I will refer to him as “Mr Chau”. That is the convenient course.  It involves no disrespect.  Mr Chau’s compulsory retirement was pursuant to an award made against him in consequence of his having been convicted of a disciplinary offence, which offence he has denied throughout and continues to deny.

3.Having appeared in person at the disciplinary hearing, Mr Chau, still in person, brought a judicial review challenge in the High Court against the Police Force decisions – original, confirmatory and ultimate – by which he was convicted and compulsorily retired.  As a matter of form, that challenge was brought against the four officers who made those decisions.  I will refer to them as “the decision-making officers”.

4.Mr Chau’s notice of application for leave to apply to the High Court for judicial review was filed on 27 July 2004.  Such leave was granted on 10 August that year.  And on 5 November that year Mr Chau was granted legal aid.

5.But on 10 January 2007 legal aid was withdrawn from Mr Chau.  So he appeared in person when his application for judicial review came on for hearing in the High Court two weeks later on the 24^th of that month.  That application was heard by Mr Justice A Cheung (as the Chief Judge of the High Court then was).  On the 8^th of the following month it was dismissed with costs against Mr Chau in favour of the decision-making officers.

Application for extension in reliance on Lam Siu Po

6.Regulation 9(11) and (12) of the Police (Discipline) Regulations purported to bar legal representation for police officers at disciplinary hearings.  At the time of Mr Chau’s disciplinary hearing, it was not realized that such a bar is inconsistent with the fair hearing clause of art.10 of the Bill of Rights and that the true position is that whether or not to permit such representation is a matter of discretion to be exercised by reference to what fairness requires in all the circumstances.  Unfortunately that was not realized until 26 March 2009 when this Court handed down judgment in Lam Siu Po v. Commissioner of Police (2009) 12 HKCFAR 237.

7.On 20 January 2010, some 33 months after his application for judicial review had been dismissed by the High Court, Mr Chau, relying on Lam Siu Po’s case, filed a summons seeking an extension of time to appeal to the Court of Appeal against the dismissal of his application for judicial review.

Grant by the Vice President affirmed by the Court of Appeal

8.That application for extension came before Mr Justice Rogers VP on 2 February 2010 and succeeded.  The decision-making officers applied to the Court of Appeal for the setting-aside of the extension granted by the Vice President.  On 6 August 2010, for the reasons which they handed down on the 13^th of that month, the Court of Appeal (consisting of Mrs Justice Le Pichon JA and Madam Justice Yuen JA) affirmed the extension which the Vice President granted.  The present appeal is brought by the four decision-making officers against the Court of Appeal’s judgment doing that.

Hung Chan Wa principle

9.In HKSAR v. Hung Chan Wa (2006) 9 HKCFAR 614 at para.24 Chief Justice Li, with whose judgment the other members of the Court agreed, said that “the courts in dealing with applications for extension of time to appeal against conviction have consistently applied the principle that time should not be extended for appeal only on the ground that an authoritative judgment subsequent to the conviction has held the previous understanding of the law to be incorrect.”  Chief Justice Li continued by noting, in para.25, that there can be “exceptional circumstances in a particular case which would justify the court in extending time for appeal against conviction on the ground that a subsequent judgment has held the previous understanding of the law to be incorrect.”

10.The Hung Chan Wa principle, it was said by the Appeal Committee in Clarence Chan v. Commissioner of Police (2010) 13 HKCFAR 462 at para.6, “is of general application”.  Having said that, the Appeal Committee proceeded to say this (in para.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.”

11.Axiomatically it is the nature of the circumstances that provides the test.  That the necessary circumstances will very rarely arise is but a prediction (although one which is naturally apt to prove accurate given that one is concerned with an exception to a general rule).  Delivering the judgment of the Court of Appeal of New Zealand in Alofa v. Department of Labour [1980] 1 NZLR 139, Mr Justice Cooke  (later Lord Cooke of Thorndon) referred to the words “the very rare case” used in the English case of R v. Mitchell [1977] 1 WLR 753.  And he said (at p.146) those words “might be unduly restrictive if applied literally; but at least special circumstances must be shown to justify a departure from the principle of the finality of the results of Court proceedings”.  Since we are concerned with an exception to a general rule, I adhere to the word “exceptional”.  But I have no quarrel with the word “special”.  It is emphatically not a matter of semantics.

Discretion

12.Where there are exceptional circumstances in which an extension can be granted in conformity with principle, whether or not to grant one is a matter of discretion.  In the present case, the decision-making officers were granted leave to appeal to this Court for them to pursue their argument that the learned judges below had departed from principle and strayed beyond their discretion when they granted and affirmed an extension.

Rival arguments

13.The argument advanced on behalf of the decision-making officers is summarized in their printed case where it is said that there is “simply nothing exceptional or rare in [Mr Chau’s] case” and that his “essential position is in fact commonplace”.  That is disputed on Mr Chau’s behalf.  It is stressed in his printed case that

“ (a) He repeatedly requested for representation but was denied;

(b) representation was crucial in his type of case;

(c) legal aid was withdrawn shortly before the judicial review hearing; with the best will in the world the Judge gave him the wrong advice on the law;

(d) he abandoned his chance to appeal without being told his options and the consequences.”

14.That four-point summary of the circumstances is borne out by the evidence. 

15.As to the judicial review hearing and its aftermath, Mr Chau has said the following on affirmation:

“ 19. On 24 January 2007 and 26 January 2007, when the substantive hearing of my application for judicial review was heard before A. Cheung J., I was unrepresented. The Respondents were represented by Counsel.

20. At the hearing, the Court told me that my second and third grounds based on Article 10 were unarguable on the then prevailing authorities. Since this was what the learned Judge said, I felt that I had to forgo those grounds. I could only proceed on the remaining ground in relation to the tribunal's refusal to grant an adjournment.

21. On 11 February 2007, I received the Court's Judgment which was handed down on 8 February 2007, dismissing my application. I was not satisfied by the Judgment. I knew that I had the right to appeal, but without the financial means and personal abilities, it was simply hopeless to appeal. It was futile to apply for legal aid, since legal aid was discharged even for the hearing at first instance. By then I had to concentrate on finding a job to support my family.

22. After I heard about the decision of the Court of Final Appeal in Lam Siu Po vCommissioner of Police [2009] 4 HKLRD 575, I immediately applied for legal aid to appeal against the Judgment of A. Cheung J.

23.   On 11 September 2009, legal aid was granted on condition that I made a contribution of $2,000. I raised the sum and paid on 22 September 2009. In. October 2009, I was contacted by assigned solicitors, Messrs. Hastings & Co., and since then I have been working with my legal representatives to prepare for the case.”

16.Mr Chau’s application for leave to apply for judicial review includes an express complaint that the Police (Discipline) Regulations “seriously lack the element of … fairness”.  It states that “[t]here are quite a number of areas where the Police disciplinary procedures are unfair”.  And the very first example of unfairness given is that of “[d]isallowing lawyers, who are not police officers, to act as defence representative.”   There it is: fair and square.  It is not Mr Chau’s fault that the judiciary did not see it at the time.

17.The reference in para. 21 of Mr Chau’s affirmation to dissatisfaction with the judgment must of course be to the only matter adjudicated upon, namely the refusal of an adjournment.  As for the Lam Siu Po point, Mr Chau having had legal aid withdrawn from him and having been persuaded by the judge to abandon the point, it would hardly have occurred to him to take the point to the Court of Appeal until he learned of this Court’s judgment in Lam Siu Po’s case.  Upon learning of it, he was prompt in seeking legal aid to pursue the point. 

Case specific question of fact and degree

18.Whether there are exceptional circumstances giving rise to a discretion to grant an extension is always a case specific question of fact and degree. With that in mind, I turn to the reasons given below for granting and affirming an extension. 

Reasons given below for granting an extension

19.As to the facts, the Vice President said:

“On 14 August 2003 there was the first hearing of the disciplinary proceedings. Before that, on 1 August, [Mr Chau for judicial review] had approached a senior officer and asked him to act for him in the disciplinary proceedings. As soon as he knew that the date had been fixed for 2 October 2003, he told that officer, an inspector, what the actual date was and the inspector said he could not make it because he had other commitments that day to attend another court hearing. So [Mr Chau] then asked another officer, another inspector. Again, on 10 September he was told by that officer that he could not act because of his work commitments. So the following day, [Mr Chau] asked another senior inspector to be his defence representative. That was on 11 September. On 23 September, that inspector suddenly told [Mr Chau] he could not make it either because of another court commitment.

The following day, [Mr Chau] then contacted the Training Staff Relations Officer of the Police Force and asked for assistance. He was simply given a list of inspectors who could be invited and he did approach one but nothing came up. So on 2 October the disciplinary proceedings were reconvened and [Mr Chau] then applied for an adjournment of the hearing because he could not find a defence representative. That was denied and the hearing went ahead. He had to represent himself and did the best he could, no doubt.

[Mr Chau] then took out an application for judicial review and he relied on Article 10 of the Hong Kong Bill of Rights Ordinance. As the judge recorded, at paragraph 14 of his judgment:

"However, owing to subsequent development of case law, at this hearing [Mr Chau] agreed that those grounds were unarguable and therefore abandoned reliance on those grounds as a support for his application for judicial review."

That of course, was quite correct.  [Mr Chau], on his application for judicial review was acting in person.  It was the judge's duty to assist [Mr Chau] as to what the law was or what the state of the law was; the state of the law at that stage was that the point was not a good one.  However, in March of this year, the Court of Final Appeal ruled that the point was a good one and hence [Mr Chau] had been, prima facie, entitled to a representation.”

20.If the way in which Mr Chau had been let down reflects the system, then the so-called system was not worthy of the name “system”.  And if the system was normally better than what happened in this case, then it failed to accord Mr Chau justice on this occasion, which occasion was vital to his career.  Like everybody else, police officers deserve better than this. 

21.On the facts which he summarized, the Vice President came to the conclusion that “looking at it overall, it is only fair that [Mr Chau] at least has a chance of addressing the Court of Appeal as to whether his appeal should be allowed”.

22.There was a point which the Vice President neatly disposed of when he said:

“It has been asked rhetorically what else could he have done in the disciplinary proceedings had he been represented, what other points could have been taken? That is the whole point of having legal representation. There are no doubt many things that a skilled lawyer can do, or a proper representative can do or not do in the course of proceedings. There is an old adage that a lawyer is his own worst client. In other words, when somebody is representing themselves they are often not very adept at doing it and they cannot see precisely what should be done and what should not be done. That is perhaps one of the reasons why one has representation and that is why the Court of Final Appeal has said that Article 10 does apply to situations such as this.”

23.That is a fair-minded – indeed the only fair-minded – approach to the matter.  The disciplinary charge against Mr Chau was of conduct calculated to bring the public service into disrepute, contrary to reg. 3(2)(m) of the Police (Discipline) Regulations.  By the particulars of that charge, it was alleged that “at about 1800 hours on 3rd June 2002 at Kwun Tong Square, 68 Hoi Yuen Road, Kwun Tong, Kowloon, in Hong Kong, whilst off duty, [he] did reveal [his] police identity other than in the pursuance of police duty and obtain the name, address and telephone number of Mr LIU Wing-nin by purporting to be investigating a reported crime, such act being conduct calculated to bring the public service into disrepute”.  Mr Chau denied that he did what is alleged in those particulars.  So the issue was one of fact.  Mr Chau’s defence required an effective cross-examination of Mr Liu, a man with a criminal record. 

24.The transcript shows that Mr Chau (who had been driven to defending himself or at least attempting to defend himself) proved incapable of conducting anything like an effective cross-examination.  That was painfully obvious.  So much so that when Mr Chau attempted to conclude his cross-examination by saying “I have no other questions for the time being”, the adjudicating officer had to say to him “This is your only chance”.  The hapless Mr Chau then replied “I have no other questions”.  Whereupon the adjudicating officer asked Mr Liu a number of questions.  Upon being invited to cross-examine further, Mr Chau did no more than ask a few ineffectual questions.  Not surprisingly there was no re-examination by the prosecuting officer, a Senior Inspector.  Thus ended the disputed but untested testimony of a crucial witness. 

25.Whether Mr Chau could conduct an effective cross-examination on behalf of someone else is unknown and irrelevant.  He could not do it on his own behalf.  Lest that observation be mistaken for a slight against Mr Chau, it is worth noting that it is common for lawyers facing disciplinary charges to rely on other lawyers to defend them – even when being convicted is unlikely to end their careers.  It is also worth recalling a story told of Lord Radcliffe.  At a Benchers’ meeting, there arose a question about a lease in which the Inn was concerned.  The question, Lord Radcliffe said, did not seem to be a straightforward one and the Inn should, he suggested, go to a solicitor.

And the reasons given below for affirming the extension granted

26.In the course of affirming the extension which the Vice President granted, Mrs Justice Le Pichon JA said:

“It is clear that looking at the matter overall, [Mr Chau’s] grievance is that he has not had a fair hearing. He was left unrepresented at the defaulter proceedings and at the judicial review when, throughout, he had wanted representation and had also relied on Article 10. The overall justice of the case is clear: he should be given the opportunity to appeal to the Court of Appeal. As no error of principle has been shown, the application to set aside falls to be dismissed.”

27.Agreeing with that, Madam Justice Yuen JA said:

“At the inter partes hearing for an extension of time to file the appeal, the Vice President was referred to the relevant authorities including the test formulated in Hung Chan Wa and came to the conclusion that in the exercise of his discretion he would grant an extension. Although the Vice President did not articulate the specific exceptional circumstances he found in this case, it cannot be inferred from that that he had failed to apply the Hung test as he did say in his judgment that “in the circumstances of this case” it was right to grant an extension. In this respect, it is pertinent to note that the judge who had dismissed the application for judicial review (Hon A. Cheung J) had in another case subsequent to the Vice President's decision (Tsui Kin Kwok Johnnie v Commissioner of Police HCAL 50/2009, unrep. 26 February 2010) noted that the Vice President's decision was fully understandable by reason of the fact that [Mr Chau] here had actually advanced the Article 10 point in his Form 86A and had only abandoned it at the hearing of the application after having had the law (as then understood) explained to him by the judge. In these circumstances I do not think [counsel for the decision-making officers] has reached the high threshold required for this court to set aside the Vice President's order and I agree that the [the decision-making officer’s] application should be dismissed with costs.”

28.It can be seen that the Vice President did what he considered to be “fair”. Mrs Justice Le Pichon JA, it can be seen, affirmed the Vice President’s decision by reference to her assessment of the “overall justice of the case”.  And Madam Justice Yuen JA, it can be seen, did the same by reference to her view of what it was “right” to do.

Finality and justice

29.So each of them appreciated the essence of the Hung Chan Wa exception. That exception is driven by the dictates of justice.  “Finality is a good thing, but justice is a better”.  Lord Atkin famously so stated when delivering the advice of the Privy Council in Ras Behari Lal v. The King-Emperor (1933) 50 TLR 1 at p.2.  That statement was not a mere dictum.  It was the foundation of their Lordships’ advice to His Majesty in that appeal.  Finality is an aspect – an important aspect – of justice.  It is often the overriding factor in the attainment of practical justice.  Sometimes, however, justice demands that a case be kept alive.

30.It is worth noting that the judge who dismissed Mr Chau’s application for judicial review considered it “fully understandable” that the Vice President “thought it appropriate to grant leave to allow [Mr Chau] to revive and pursue the Article 10 point by way of an appeal out of time”.  That was said in Tsui Kin Kwok v. Commissioner of Police, HCAL No. 50 of 2009, 26 February 2010.  It was said in the course of distinguishing the extension granted to Mr Chau from the refusal of an extension in Ho Ho Chuen v. Commissioner of Police, HCMP No. 2276 of 2009, 18 December 2009. In drawing that distinction, the judge said this in para. 35 of his judgment in Tsui Kin Kwok’s case:

“It is true that in Chau Cheuk Yiu v Poon Kit Sang, HCMP 121/2010, 2 February 2010, Rogers VP granted leave to the applicant to appeal out of time from a judgment given in 2007 dismissing his application for judicial review against decisions made in police disciplinary proceedings on the basis of Lam Siu Po. However, despite the superficial similarities, the decision is clearly distinguishable from Ho Ho Chuen because in Chau Cheuk Yiu, one of the original grounds of challenge in the court below was that the relevant regulations were in contravention of article 10 of the Hong Kong Bill of Rights. However, at the substantive hearing, the point was abandoned by the applicant (who was acting in person) given the then state of the law: paras 5 and 6 of Rogers VP's judgment. It is thus fully understandable, if I may say so with respect, why the Vice-President thought it appropriate to grant leave to allow [Mr Chau] to revive and pursue the article 10 point by way of an appeal out of time. Nothing of that sort happened in Ho Ho Chuen or in the present case.”

So far no judge has denied the justice of Mr Chau’s case.  This Court should not now deny it.

Concurrent findings: no reason to review them

31.What if legal aid had not been withdrawn from Mr Chau?  Might his case have duly proceeded all the way up to this Court?  Then his counsel, or this Court of its own motion, might have raised the question eventually answered in Lam Siu Po’s case.  If so, his case rather than Lam Siu Po’s case would be the authority for the proposition that the reg.9(11) and (12) bar is inconsistent with the fair hearing clause of art.10 of the Bill of Rights and that the true position is that whether or not to permit such representation is a matter of discretion to be exercised by reference to what fairness requires in all the circumstances.  Even if legal aid had not been withdrawn from Mr Chau, if the judge had not persuaded him to abandon the Lam Siu Po point but had merely decided it against him, Mr Chau might have taken the point to the Court of Appeal and, if unsuccessful there, eventually to this Court.  The judge meant to be helpful to a litigant-in-person.  But the correct advice to Mr Chau was not that the Lam Siu Po point was hopeless.  At the most, Mr Chau could have been told that he would have to take the point to the Court of Final Appeal in order to succeed on it.  The law’s ability to develop as well as fairness to litigants sets that limit.  In combination, the withdrawal of legal aid and the judge having persuaded Mr Chau to abandon the Lam Siu Po point clearly amount to exceptional circumstances. 

32.There is a word to be added in regard to Mr Chau having been persuaded by the judge to abandon his Lam Siu Po point.  A litigant-in-person may not be convinced to accept what a judge decides against him in a judgment.  The existence of an avenue of appeal acknowledges and announces that the judge is not considered infallible.  But where a judge, obviously meaning to be fair and helpful, goes so far as to inform a litigant-in-person that a particular part of his case ought to be abandoned, it is not surprising that the litigant-in-person becomes convinced that that part of his case is indeed hopeless – in that judge’s court and every other court in the judicial hierarchy.  And where, contrary to what the judge said about it being hopeless, that part of the litigant-in-person’s case turns out to be correct in law, it becomes the judiciary’s duty to give anxious consideration to what it can properly do to ensure that he does not suffer injustice as a result of that judicial error.  Considerations of expediency, real or imagined, cannot undo that duty, for it goes to justice, which is what lies at the heart of the judiciary’s reason for existing. 

33.The Vice President, Mrs Justice Le Pichon JA and Madam Justice Yuen JA each displayed an accurate appreciation of the nature of the circumstances needed for there to be a discretion to grant an extension.  On that footing, they embarked on the question, being one of fact and degree, of whether those circumstances exist in the present case.  And we have from them concurrent findings that such circumstances do exist in the present case.  In conformity with the approach adopted in Sky Heart Ltd v. Lee Hysan Co. Ltd (1997–98) 1 HKCFAR 318 and adhered to ever since, we will not review such findings save for compelling reasons.  And absolutely no such reason exists in the present case.

34.So the final question is whether the exercise of discretion on the part of the judges below ought to be disturbed.  I begin my approach to this question bearing in mind the point made by Lord Justice Kay in Jenkins v. Bushby [1891]1 Ch 484 at p.495 where he said:

“Of course, in a question of discretion, authorities are not of much value. No two cases are exactly alike, and even if they were, the Court cannot be bound by a previous decision, to express its discretion in a particular way, because that would be in effect putting an end to the discretion”.

Exercise of discretion: no reason to interfere with it

35.The discretion concerned was one either to grant or to withhold an extension of time to bring an appeal to the Court of Appeal.  And the learned judges of that court have, originally and upon review, unanimously exercised it in favour of granting an extension thereby permitting access to their court. There is no basis whatsoever on which to interfere with that exercise of discretion. 

Conclusion

36.Accordingly I would dismiss the appeal and order that costs as between the parties, if not agreed, be dealt with on written submissions as to which the parties should seek procedural directions from the Registrar.  I would also order legal aid taxation of Mr Chau’s own costs.  Finally, I express my thanks to counsel on both sides for the helpful arguments which have been so ably prepared and presented.

Mr Justice Chan PJ:

37.This appeal is concerned with the extension of time to appeal where the only or real ground of appeal is that the previous understanding of the relevant law is subsequently authoritatively held to be incorrect. Two issues arise for consideration in this case:

(1) What is the principle to be applied in such a situation; and

(2) Did the Court of Appeal correctly apply this principle?

The disciplinary proceedings

38.The applicant in these proceedings (“Mr Chau”), now the respondent in this appeal, was a senior police constable. On 30 July 2003, as a result of a complaint, the Police Force instituted disciplinary proceedings against him, accusing him of conduct calculated to bring the public service into disrepute, contrary to Reg. 3(2)(m) of the Police (Discipline) Regulations, Cap 232A (“the Regulations”). It was alleged that on 3 June 2002, while he was off duty, he revealed his police identity other than in pursuance of police duty and obtained the name, address and telephone number of the complainant under the false pretext of investigating a reported crime.

39.In the disciplinary proceedings, Mr Chau was not legally represented. At that time, Reg. 9(12) of the Regulations did not permit him to be represented by a lawyer. Nor did he have the benefit of a defence representative, although under Reg. 9(11), he was allowed to be represented by an inspector or a police officer (who happens to be a qualified lawyer) of his choice. On three successive occasions, he had informally contacted three different senior inspectors to whom he had given the relevant materials but who later informed him that they were unable to attend the hearing due to some other commitments. He then sought assistance from the Training and Staff Relations Officer and was provided with a list of inspectors who might be able to help. He wrote to one of them but did not follow up with his request. He asked the prosecuting officer for an adjournment but there was no response.

40.At the hearing on 2 October 2003, Mr Chau applied for but was refused an adjournment. The proceedings then went ahead. The prosecution called three witnesses including two civilians and Mr Chau gave evidence, called one witness and made submissions to the Adjudicating Officer (who was a Superintendent).  

41.On 13 October 2003, Mr Chau was found guilty of the disciplinary charge by the Adjudicating Officer. On 27 October 2003, a more senior officer (a Chief Superintendent) confirmed the conviction and awarded as punishment a severe reprimand and compulsory retirement with deferred benefits. On 28 November 2003, after giving Mr Chau the opportunity to submit a written representation which he prepared with the help of a lawyer, the Force Discipline Officer (an Assistant Commissioner) approved the decision and the award. Mr Chau then appealed. He was invited to make a further written representation which he did, again with the assistance of a lawyer. On 28 April 2004, the Deputy Commissioner dismissed his appeal and the award took effect on 7 May 2004. Mr Chau had since left the Police Force.

The judicial review proceedings

42.Mr Chau felt aggrieved by these decisions. On 27 July 2004, he applied for judicial review, making these four senior officers the 1^st to 4^th respondents in these proceedings. I shall refer to them collectively as “the Respondents”.

43.In the Form 86A which was admittedly prepared with the assistance of a person who had experience in providing help to police officers involved in disciplinary proceedings, Mr Chau relied on three grounds. The first was that the Adjudicating Officer had, contrary to Reg. 9(8) of the Regulations, wrongly refused to grant him an adjournment to seek the assistance of a defence representative, resulting in unfairness to him. The second ground was that the disciplinary proceedings were not independent and impartial, thus contravening art 10 of the Bill of Rights. The main thrust of this ground was that the disciplinary proceedings were unfair because both the prosecution and adjudication were conducted by members of the Police Force who might be biased against him. But one of the allegations was that the Regulations did not allow lawyers who were not police officers to represent him although there was no elaboration on this allegation. The third ground was that Reg. 9(11) also contravened art 10 in that there was discrimination against junior officers who could only engage an officer below the rank of superintendent to act as his defence representative while senior officers could instruct officers from other government departments.   

44.On 10 August 2004, Mr Chau was granted leave to apply for judicial review by A Cheung J. He then applied for and was given legal aid in November 2004 to pursue his application. Advice was obtained from counsel who on 6 April 2005 and 22 September 2006 respectively gave an opinion which was adverse to his case. As a result of such opinions, legal aid was withdrawn in January 2007 and Mr Chau had to act in person.

45.At the hearing on 24 January 2007, the judge indicated to Mr Chau that since the granting of leave in 2004, there had been a number of decisions (which included one by himself and some by the Court of Appeal) to the effect that art 10 did not apply to police disciplinary proceedings and that on the basis of these decisions, there was little hope of success on the art 10 issue. Mr Chau agreed to abandon the second and third grounds which were apparently similar to those unsuccessfully relied on in the decided cases.

46.On the only ground pursued, having considered the evidence regarding what happened in the disciplinary proceedings, the judge held that the Adjudicating Officer was not wrong in refusing an adjournment. He also found that Mr Chau had not been prejudiced by his failure to obtain the assistance of a defence representative since the allegations against him were mainly factual and he was able to adequately conduct his case and cross examination of the witnesses and that on appeal to the more senior officers, Mr Chau had the assistance of lawyers in preparing his submissions. Moreover, the judge noted that Mr Chau was unable to identify any specific adverse effect on his case as a result of the lack of a defence representative. The judge concluded that there was no unfairness to Mr Chau and his application for judicial review was dismissed. This was on 8 February 2007.

The application for extension of time to appeal

47.On 26 March 2009, in the case of Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237, this Court held, among other things, that art 10 of the Bill of Rights was engaged even in police disciplinary proceedings and that Reg. 9(12) in imposing an absolute ban on legal representation was unconstitutional as contravening art 10 of the Bill of Rights.

48.It was on 20 January 2010, nearly 3 years after the decision of A Cheung J that Mr Chau, after having obtained legal aid, applied to the Court of Appeal for an extension of time to appeal against that decision. In his Summons which was prepared by counsel now acting for him, there were two main grounds of appeal. First, the judge had erred in holding that the Adjudicating Officer was not wrong in principle or unfair in refusing to grant an adjournment to enable Mr Chau to seek defence representation at the disciplinary proceedings. The second ground was that the restrictions on his choice of representation was unconstitutional as contrary to art 10 of the Bill of Rights and reference was made to the case of Lam Siu Po.

49.Rogers VP, sitting as a single judge of the Court of Appeal, granted him an extension. The Respondents applied under Order 59 rule 14 of the Rules of the High Court to set aside the order. This was rejected by the Court of Appeal (Le Pichon and Yuen JJA). With leave of the Appeal Committee, the Respondents now appeal to this Court on the “or otherwise” ground. 

Court of Appeal’s reasons for granting extension

50.In granting an extension of time, Rogers VP said in para. 7 of his Decision that “given the history (of the case) and looking at it overall, it is only fair that [Mr Chau] at least has a chance of addressing the Court of Appeal as to whether his appeal should be allowed. It might be more sensible, really, that the judicial review was reheard and this point allowed to be argued.” Making the observation that it would be difficult to say what should have been done had Mr Chau had the benefit of legal representation at the disciplinary proceedings, the learned Vice President added in para.10 that “in the circumstances of this case, it is right that this matter should at least go before [the Court of Appeal].” 

51.In the Court of Appeal, Le Pichon JA considered that the Respondents had failed to overcome the high hurdle of showing that Rogers VP was plainly in error in the exercise of his discretion. She further held that the Vice President had correctly applied the principle in HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 and it was not necessary for him to articulate the specific exceptional circumstances. Relying on Nantong Angang Garments Co Ltd v Hellmann International Forwarders & others [2005] 4 HKC 86, Le Pichon JA, took the view that in dealing with an application for extension of time, the court has to consider all the circumstances of the case and decide whether the overall justice of the case requires the discretion to be exercised and that this approach was not affected by Hung Chan Wa. Like the learned Vice President, she considered that the overall justice of this case was in favour of giving Mr Chau the opportunity to appeal to the Court of Appeal.

52.Yuen JA also considered that the respondents had failed to overcome the high threshold required to set aside the order made by the learned Vice President. She said that it could not be inferred that the Vice President had failed to apply the test in Hung Chan Wa since there was a reference to “in the circumstances of the case”. She suggested that Mr Chau’s abandonment of the art 10 point upon advice from the trial judge was a relevant consideration.

What is the principle to be applied?

53.When considering an application for extension of time to lodge an appeal, the court must have regard to all the circumstances in deciding whether the overall justice of the case requires the exercise of the discretion to extend time. This involves an assessment of all relevant factors, such as the strength of the proposed appeal, the length of the delay, the reasons for the delay, the interest of society to have finality in litigation and the interests of the parties affected. The party seeking indulgence must satisfy the court that an extension of time is merited.

54.Where the sole or real ground of the proposed appeal is that there was a previous misunderstanding of the applicable law, the principle to be applied for determining whether to grant an extension of time was stated by this Court in Hung Chan Wa. In that case, Chief Justice Li (with whom the other members of the Court agreed), having considered the relevant overseas jurisprudence, held that this ground by itself would not justify an extension but that there could be exceptional circumstances in a particular case which would justify an extension. He added that the circumstances must be so exceptional that the occasions when they would be held to exist would be very rare.

55.It is acknowledged that in the majority of cases, this principle may create a sense of grievance for the parties concerned. However, the finality principle is considered as of such critical importance to the overall administration of the justice system that this factor outweighs other factors save in exceptional circumstances in which case extension should be granted. Where such exceptional circumstances exist, one would expect that they would be plain and obvious and readily identifiable.

56.Professor Johannes Chan SC leading Ms Margaret Ng for Mr Chau accepts that this is the applicable principle in the present case but submits that this should not be applied mechanically but flexibly and sparingly having regard to the principle of finality and the overall interests of justice in the case. Counsel refers to various authorities in overseas jurisdictions including R v Knight [1998] 1 NZLR 583 where the New Zealand Court of Appeal referred to the special circumstances to justify a departure from the principle of finality and required an applicant to demonstrate some special features that lead to the conclusion that in all the circumstances justice requires that leave should be given. This was followed in Alofa v Department of Labour [1980] 1 NZLR 139, Austin v R [2001] NZCA 427, R v Lee [2006] NZCA 60. Counsel also refers to R v Hawkins [1997] 1 Cr App R 234 where Lord Bingham CJ said it was pertinent to “ask whether any substantial injustice has been done”. This case was followed in R v Graham and others [1996] EWCA Crim 1211, R v Ballinger [2005] 2 Cr App R 433, and R v Ramzan and others [2006] EWCA Crim 1974.

57.Since it is common ground that the principle in Hung Chan Wa is the applicable principle, it is not necessary to go through the cases cited by counsel. Suffice it to note that extension was refused in many of these cases but granted in some of them on the basis of their peculiar circumstances.

58.However, the following observation can be made. The overseas jurisprudence including many of the cases cited by Professor Chan had been considered in Hung Chan Wa. When formulating this principle, the Court did not say that in deciding whether there are exceptional circumstances, the interests of justice are not important or that one can ignore the justice of the case. But the authorities which made reference to the interests of justice or the requirement of substantial injustice also emphasized the importance of the principle of finality. For instance, the Court of Appeal in Knight considered that finality was a “powerful consideration” and “of particular importance”. Cooke J in Alofa stressed the need to show special circumstances “to justify a departure from the finality principle” which seemed to suggest that the principle of finality would be the norm. The only caveat which can be found in these cases is the warning that the exceptional circumstances approach must not be applied mechanically so as to preclude extension without exception. Thus, I see no inconsistency between the Hung Chan Wa approach and the overseas jurisprudence.

59.The Hung Chan Wa principle has been consistently applied by the lower courts and the Appeal Committee in cases which were similar to the present case. A succinct summary of these recent decisions was given by Kwan JA in Lam Chi Wai v Commissioner of Police, HCMP 311 of 2010, unreported, 24 June 2010. I do not understand counsel to be submitting that this principle has been applied mechanically or inflexibly or has resulted in substantial injustice in any of these cases.

Did the Court of Appeal correctly apply this principle?

60.Mr Anderson Chow SC, leading Mr Abraham Chan for the Respondents, complains that Rogers VP had failed to follow the approach in Hung Chan Wa and that the Court of Appeal was wrong to uphold his order. With respect, I agree.

61.Although no mention of Hung Chan Wa was made in the learned Vice President’s Decision, it is not disputed that that case was drawn to his attention and it cannot be assumed that he did not have this principle in mind. However, it does not appear that he was applying that principle in this case. In his Decision, the Vice President was in effect saying that after Lam Siu Po, Mr Chau had a prima facie right to legal representation and that since it was not beyond argument that the presence of a lawyer at the disciplinary proceedings would not have made any difference, it was only “fair” and “right” to give him another chance to argue the art 10 issue: in short, Mr Chau should be given a chance in the light of Lam Siu Po. With respect, this was exactly what Hung Chan Wa said should not happen unless exceptional circumstances can be shown. The learned Vice President did not continue to discuss whether any exceptional circumstances were present. What was said in his short Decision cannot be regarded as amounting to exceptional circumstances. It is also clear that he did not attach any weight to the finality principle. Nor was he concerned with Mr Chau’s delay to do anything for two years since the decision of A Cheung J until Lam Siu Po.

62.Both Le Pichon and Yuen JJA considered that in order to set aside the order of the learned Vice President sitting as a single judge of the Court of Appeal, the Respondents had to overcome a high hurdle and show that the learned Vice President was plainly in error and that they had failed to discharge that burden. Reliance was placed on the practice discussed by Lord Donaldson of Lymington MR said in The Iran Nabuvat [1990] 1 WLR 1115, at 1117H and by Sir Thomas Bingham MR in First Tokyo Index Trust Ltd v Morgan Stanley Trust Co and others, The Times, 6 October 1995. One must however be careful when adopting these cases as they dealt with applications for leave to appeal on the merits. This broad approach is not appropriate in the case of an application for an extension of time to appeal, particularly where the only ground of appeal is a previous misunderstanding of the law.

63.Le Pichon JA further considered that the learned Vice President’s approach was consonant with the authorities and she referred to Nantong. However, that was not a case which dealt with the sort of situation we are dealing with in this case. In saying that Hung Chan Wa did not affect the general approach in Nantong, she failed to appreciate that in a situation like the present, for good policy reasons, the principle of finality should prevail unless there are exceptional circumstances. She fell into the same error as the learned Vice President and failed to properly apply the Hung Chan Wa principle and address her mind to the question whether there were exceptional circumstances. Further, insofar as Le Pichon JA required the Respondents to demonstrate that Mr Chau’s conviction was inevitable whether or not he had legal representation at the disciplinary proceedings, she was also in error. Mr Chau clearly had the burden of showing there were exceptional circumstances which justify an extension.

64.The only part of the judgment which may arguably be regarded as adopting the Hung Chan Wa approach is Yuen JA’s reference at the end to the fact that Mr Chau had abandoned the art 10 issue after the judge had explained to him the law as then understood. But as I shall demonstrate below, this is not sufficient to constitute an exceptional circumstance.

65.For the reasons discussed above, I am not satisfied that Rogers VP or the Court of Appeal had properly applied the Hung Chan Wa principle. I note that in Tsui Kin Kwok Johnnie v Commissioner of Police, HCAL No 50 of 2009, unreported, 26 February 2010, A Cheung J in an attempt to distinguish another case from the present case, seemed to have accepted Rogers VP’s Decision, a decision which was obviously binding on him. However, for the reasons given above, I do not think the learned Vice President’s Decision was correct.   

Are there exceptional circumstances in this case?

66.If the Hung Chan Wa principle is applied to this case, are there exceptional circumstances which justify an extension of time?  In my view, there are none.

67.As mentioned above, in the Summons for an extension of time, there are two proposed grounds of appeal. The first is against A Cheung J’s finding that the Adjudicating Officer was not wrong or unfair in refusing an adjournment. From an examination of the materials in this case and the clear and fair judgment given by the judge, it is quite clear that he was entitled to dismiss this ground. In any event, it was open to Mr Chau to appeal that decision but he chose not to do so. If this had been the only proposed ground of appeal, I doubt whether Mr Chau would be advised to take the matter up again after more than two years had elapsed. I also do not think that the Court of Appeal would have granted an extension of time to pursue it.

68.The second proposed ground of appeal is the art 10 issue which was abandoned at the trial but is now revived following the decision in Lam Siu Po. If Lam Siu Po had not been decided, there is little doubt that Mr Chau would not have considered applying for an extension of time to appeal on this ground. So the decision in Lam Siu Po is the real reason for his application. That being the case, it falls squarely within the Hung Chan Wa principle. The question is whether there are exceptional circumstances justifying the exercise of the court’s discretion in his favour.  

69.In paragraph 71 of Mr Chau’s Case, counsel relies on several features which are said to support the submission that the Court of Appeal was right in granting extension of time. It is submitted that these matters taken cumulatively constitute exceptional circumstances.

70.The first feature is said to be the fact that Mr Chau had repeatedly requested for representation but was wrongly denied by the Adjudicating Officer resulting in unfairness to him. As mentioned above, this was the complaint which was rejected by A Cheung J. In his affirmation in support, Mr Chau said that he was not satisfied with the decision of the judge; that he knew he had the right to appeal but had no financial means to pursue the matter further and that legal aid was unlikely to be granted to him since it was already withdrawn even for the hearing before the judge. In my view, this is hardly an acceptable explanation for the delay (of more than two years) in lodging an appeal in time. Nor can it be regarded as an exceptional circumstance: the fact that the fairness of the disciplinary proceedings is involved is not an exceptional circumstance to justify extension (Clarence Chan v Commissioner of Police, (2010) 13 HKCFAR 462, Bokhary PJ, #10).

71.The second feature relied on is that legal aid was withdrawn shortly before the judicial review. This is not a sufficient reason for granting leave let alone an exceptional circumstance. The fact that legal aid and pro bono assistance were not provided has never been considered a sufficient basis for an extension of time (Lam Sze Ming & another v Commissioner of Police, FAMV 26 of 2010, unreported, 15 March 2011, Ribeiro PJ, #5). 

72.Nor is the prejudicial impact on the applicant, such as loss of substantial pension benefits on compulsory retirement by itself, an exceptional circumstance (Ho Ho Chuen v Commissioner of Police, HCMP 2276 of 2009, unreported, 18 December 2009, CA, #14).

73.The real controversial matter which it is argued may constitute an exceptional circumstance is the complaint that after the judge had given Mr Chau the wrong advice on the law, Mr Chau abandoned the art 10 issue. It is said that this would cause a perception of injustice and a sense of grievance to Mr Chau.

74.I would however look at the matter this way. If the judge had not given any advice to Mr Chau but had gone ahead to hear the argument on the art 10 issue and decided the point, I do not think there would be any exceptional circumstance under the Hung Chan Wa principle. So why would the judge’s advice make any difference?

75.No criticism is levelled at the judge for giving such advice. But it is submitted that he could and should have done more for Mr Chau, for instance, explaining to him the consequences of the abandonment. It is said that it would be more difficult to argue on appeal a point which was abandoned than a point which was argued but rejected.  

76.I do not think this is an acceptable submission. The judge had previously given a decision adverse to this art 10 issue in another case and there were several Court of Appeal decisions on the same matter which were binding on him. That was the understanding of the law at the time. As Mr Chau was not legally represented, the judge was duty bound to assist him.  The judge had taken the trouble of suggesting the calling of live witnesses to help Mr Chau. He also went out of his way to assist him on the law and even offered to provide him with copies of those decisions which were in Chinese and gave him time to read them. The judge’s advice did not come as a surprise to Mr Chau. He already had legal advice to similar effect. Legal aid had been withdrawn on counsel’s advice. In the circumstances of this case, it would not have helped him even if the judge had explained to him the consequences of abandoning the point. Nor would it have made any practical difference if it was not abandoned but argued in court and rejected in the judge’s decision. It is suggested that had legal aid not been withdrawn or had the judge not given such advice but instead made a decision on the point, Mr Chau might somehow have considered bringing the matter further to a higher court which may result in a favourable decision as in Lam Siu Po. This is, I must say, pure speculation and is also unrealistic.

77.In the circumstances of his case, I simply fail to see how the fact that the judge had carried out his duty in assisting an unrepresented litigant by explaining his views of the law to that litigant and performing his case management function can now be turned into an exceptional circumstance justifying the granting of an extension of time to enable Mr Chau to have “another chance to address the Court of Appeal”. This argument is also quite unfair to the judge. 

78.In my view, the fact that Mr Chau had abandoned the art 10 issue after the judge had given him an advice on the law which was held to be incorrect by a subsequent decision could not, either considered separately or together with all other features in this case, constitute an exceptional circumstance. The Court of Appeal had failed to apply the Hung Chan Wa principle. In any event, there was no basis for Rogers VP and the Court of Appeal to exercise their discretion in granting an extension of time. This amounts to an error of law and the appellate court is entitled to interfere.

Conclusion

79.For these reasons, I would allow the appeal and set aside the order granting an extension of time to appeal. I would also make an order nisi that the Respondents be awarded their costs of this appeal.

Mr Justice Ribeiro PJ:

80.I agree with the judgments of Mr Justice Chan PJ and Mr Justice Litton NPJ.

Mr Justice Litton NPJ:

81.I agree with Mr Justice Chan PJ’s judgment. 

82.This appeal focuses on Cheung J’s judgment of 8 February 2007.  The question in issue is whether the Court of Appeal has erred in principle in affirming Mr Justice Rogers VP’s grant of extension of time, allowing Mr Chau to appeal against that judgment, whereby Cheung J dismissed Mr Chau’s application for judicial review lodged on 27 July 2004 : nearly eight years ago.

83.The time for Mr Chau to appeal against Cheung J’s judgment expired on 23 April 2007.  The application for extension of time to appeal was late by some thirty three months.  It is common ground that without this Court’s judgment in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575 Mr Chau would not have made his application to extend time.

84.As I see it Lam Siu Po was of marginal relevance in this matter. In Lam Siu Po this Court held that in so far as reg 9(12) [1] of the Police (Discipline) Regulations, Cap 232 imposed a blanket exclusion of legal representation in police disciplinary proceeding, it contravened Article 10 of the Bill of Rights.  As Ribeiro PJ puts it at p 624, the disciplinary scheme, confining representation at an inquiry to an inspector or other junior officer or other police officer qualified as a barrister or solicitor, prevented the tribunal from complying with its duty of fairness where such duty called for legal representation to be permitted.  In Lam Siu Po the applicant had specifically asked whether he could be represented by a solicitor, and he was told No because of reg 9(12) : See Bokhary PJ at 583 and Ribeiro PJ at 596.

85.Here, Mr Chau’s chief complaint was that the adjudicating officer at the hearing on 2 October 2003 had declined to adjourn the proceedings, refusing to give him more time to seek representation at the hearing.  But there was a real problem about adjourning.  The principle witness for the prosecution was not a compellable witness.  In his application for judicial review Mr Chau said that he had sought assistance from the Training and Staff Relations Officer, “looking for a defence representative”; he never said he was looking for a police officer qualified as a barrister or solicitor; far less did he say that he had wanted to be represented by a barrister or solicitor but was prevented from such representation by reg 9(12).  What he faced at the tribunal hearing were pure matters of fact.  No law was involved.

86.It is a matter of pure speculation as to what Mr Chau might have done had Lam Siu Po been decided before the tribunal hearing on 2 October 2003.  The effect of Lam Siu Po on the disciplinary scheme under Part II of the Police (Discipline) Regulations[2] was limited to one aspect of the scheme : legal representation at a tribunal hearing.  In so far as Mr Chau sought to impeach the entire scheme in Part II as lacking in independence and fairness, and thus contravening Article 10, it was doomed to failure.

87.There was some speculation at the hearing before us as to what might have happened had his appeal lodged in July 2004 gone ahead.  Might his case, rather than Lam Siu Po’s case, (decided in March 2009), have been the authority for the proposition that the blanket prohibition against legal representation in police disciplinary proceedings was null and void in law as it contravened Article 10 of the Bill of Rights ?  This seems to me a highly questionable proposition.  The courts do not exist to determine academic issues.  The question of representation by a barrister or solicitor, as opposed to representation by a police officer, simply never arose on the facts of Mr Chau’s case.  In the Lam Siu Po case, the applicant had specifically asked to be represented by a solicitor.  It is therefore difficult to see how reg 9(12) could be said to have been engaged in Mr Chau’s case, which required determination by the court.

88.At the core of the issue in this matter is procedural fairness.  Did Mr Chau have a fair hearing before the tribunal ?  Cheung J, exercising his supervisory role, examined this issue with great care and concluded he did.

89.Viewing the matter overall, as Rogers VP said he did (at § 7), I see no circumstance which would justify an extension of time.  I too would make the orders proposed in Mr Justice Chan PJ’s judgment.

Mr Justice Gleeson NPJ:

90.I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

91.By a majority, with me in the minority, the appeal is allowed with the order as to costs set out in the concluding paragraph of Mr Justice Chan PJ’s judgment.

Mr Anderson Chow, SC and Mr Abraham Chan, instructed by the Department of Justice, for the appellants

Professor Johannes Chan, SC and Ms Margaret Ng, instructed by Hastings & Co. and assigned by the Director of Legal Aid, for the respondent