Yu Chi Hung v. Commissioner of Police

HCAL 82/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 82 OF 2011

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J U D G M E N T

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BACKGROUND TO THIS APPLICATION

1.This application finds its genesis in responses given by the applicant to questions put to him when he testified, as a witness for the accused, a Detective Police Constable CHAN Yat-chuen, in a trial in the District Court under reference DCCC523/2006 on 17 October 2006. The applicant was and is a Superintendent of Police with, at that time, 30 years unblemished service. Prior to testifying, the applicant had complied with the internal requirements of the police force by submitting notification to his senior officer: he had provided a copy of the statement which he had prepared in anticipation of testifying.

2.A charge of doing an act tending and intended to pervert the course of public justice had been preferred against DPC CHAN by the Independent Commission Against Corruption. That charge arose from an investigation by, amongst others, DPC CHAN, of a singularly vicious case of wounding which occurred in Tai Po in January 2004. At that stage the applicant was Assistant District Commissioner, Crime, Tai Po Police District: DPC CHAN had been subordinate to him during that investigation.

3.DPC CHAN was convicted after trial, during which he had been represented by counsel. He was sentenced to be imprisoned for a period of 18 months. DPC CHAN appealed his conviction. That appeal, under reference CACC 472/2006, was heard and allowed on 30 May 2008 by which stage DPC CHAN had served his sentence in full, he having received full credit for his good conduct. The Court of Appeal handed down its Reasons for Judgment on 16 June 2008.

4.The Commissioner of Police subsequently concluded that the applicant had misconducted himself when testifying on behalf of DPC CHAN, in that his "... testimony in connection with the use of (sic) police officers’ usage of private recording devices, reflected poorly on the level of professionalism expected of an officer of his seniority and experience" (the first decision). On 11 March 2011 a written warning was issued to the applicant who appealed, internally, against the first decision. A notice dated 14 June 2011advised the applicant that his appeal had been dismissed (the second decision).

5.The applicant sought leave, by notice dated 27 September 2011, to institute these proceedings seeking a judicial review of each of those decisions. That application was granted by Lam J on 3 October 2011.

BACKGROUND TO THE CHARGE AGAINST DPC CHAN

6.In order to understand the context in which the applicant testified during the trial of DPC CHAN, it is necessary briefly to relate the circumstances which gave rise to the charge against DPC CHAN. They were summarised by McMahon J when giving the Reasons for Judgment of the Court of Appeal in CACC 472/2006. I gratefully repeat what appears in that judgment:

“2.  The charge was particularised as follows :

“Particulars of Offence

CHAN Yat-chuen, on or about the 25^th day of February 2004, in Hong Kong, with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice in that he incited, induced and instructed CHAN Ying-kin, Ken to make a false statement under caution to the Hong Kong Police Force concerning a case of wounding, namely Police case number TPRN04001715.”

3.  The prosecution case was that the applicant was a police detective constable attached to Tai Po Police Station and was a member of a team of police who in February 2004 were investigating a quite vicious acid-throwing attack on two victims at a location in Tai Po.  It was thought the person Chan Ying-kin particularised in the charge, who became PW1 at trial, was one of the attackers.  

4.  Police suspected the attack had been instigated by another person, Wan, who had fallen out with one of his sons and had hired a triad personality called “Monkey” who was PW1’s “big brother” to carry out the attack against Wan’s son and the son’s wife.  PW1 had, together with another individual called “Ah Lung”, carried out the attack on the instructions of “Monkey” although, as it transpired, the wrong persons were attacked resulting in horrific injuries to one wholly innocent victim in particular.  

5.  PW1 was subsequently arrested for another offence and was on bail for that offence when, on 25 February 2004, he was contacted by the applicant and two other members of the applicant’s police team.  They met PW1 at the Tai Po Jockey Club Centre and drove him in a private car to the Lam Tsuen River where the applicant and PW1 then left the car and sat and talked beside the river.  According to PW1, upon whose evidence the prosecution case relied almost entirely and who was accepted by the judge as a witness of truth, the applicant told him the police knew he was involved in the acid attack and asked him what he wanted to say.  PW1 then told the applicant that he and the person “Ah Lung” had carried out the attack on the instructions of “Monkey”, but that they had in fact thrown the acid at the wrong couple and, as a result, had not been paid (the “Monkey” version).

6.  PW1’s evidence continued to the effect that the applicant then told him to “point the figure at his co-defendants” or that he, PW1, would take sole responsibility for the whole matter.  PW1 was reluctant to do so as it meant incriminating “Monkey” and “Ah Lung”, his triad brothers and, eventually, according to PW1, the applicant suggested that he could incriminate someone else when he spoke to police about the matter and that he could say he carried out the attack with an imaginary instigator “Billie” who had also actually thrown the acid (the “Billie” version).  PW1 said he agreed to tell the police this as it meant he would not be incriminating either “Monkey” or “Ah Lung” and was minimising his own role.  PW1 and the applicant then returned to the car where the applicant arrested him.  It was this riverside conversation which formed the basis of the prosecution case. 

7.  According to PW1 on the way to the police station, he repeated the true version of events, stating the involvement of “Monkey” and “Ah Lung” to the applicant within the hearing of the other two police officers, a sergeant and a driver.

8.  Subsequently PW1 signed a post record purporting to evidence the conversation he had with the applicant at the riverside in terms of the false “Billie” version of events.  After that a video interview was conducted by the applicant, in the course of which PW1 again repeated the concocted “Billie” version. 

9.  Almost immediately following that, however, PW1 was interviewed again by the applicant in the presence of the sergeant and other police officers in an informal interview conducted in the “big room” at Tai Po Police Station which was audio recorded with a digital recorder, which PW1 said he was unaware was being used.  That audio recording became P15 at trial and evidenced an interview which began in the following terms :

“B [the applicant] : Listen! Ah KEN, the VIR is just over. The video recording is finished. Listen! For the stuff you said, it’s also finished. However, listen! Now, it’s neither a video recording nor a written record, huh. I have to listen to the true story.

C [another police officer] : The nickname is Ah KEN, right?

A [PW1] : Yes.

C : (You) hear it. Talk to us.

B : What’s the true story first? Listen, well, who’s the one who formally ordered you to do it? (Noise)

A : ‘Your Majesty’.

B : Pardon?

A : ‘Your Majesty’.

B : ‘Your Majesty’. [A : Hm.] Who is ‘Your Majesty’.?

A : MONKEY.

B :  MONKEY.  Who was present when he told you.”

10.  PW1 then went on in the course of that interview to again detail his and “Ah Lung’s” involvement in the acid throwing attack at the behest of “Monkey”.  Subsequently it was suggested to PW1 that he consider giving evidence for the prosecution against “Monkey” and PW1, after speaking to his parents, agreed to do so.  We were informed during the course of the appeal that PW1 did in fact give such evidence and that, as a result, “Monkey” was convicted for his role in the attack and sentenced to 18 years’ imprisonment.  

11.  The Independent Commissioner Against Corruption (ICAC) had become involved with PW1 in mid-2005 as a result of approaches being made to him by fellow prisoners and others, while PW1 was in custody in Pik Uk Prison.  Those approaches were designed to discourage PW1 from giving evidence against “Monkey”, partly by threats and partly by the offer of sums of money.  During the course of a number of interviews with the ICAC in July 2005 PW1, for the first time, mentioned the riverside conversation with the applicant.  He apparently did so in an attempt to explain why he had originally proffered the “Billie” version of events to the police.  That formed the basis of the case against the applicant.”      [Emphasis supplied]

7.For the sake of completeness it is worth noting that CHAN Ying Kin, Ken, (PW1) pleaded guilty to his role in throwing the acid and was sentenced to imprisonment for 8½ years. As noted in §10 of the Reasons for Judgment, he testified against the person referred to as "Monkey" who appealed, unsuccessfully, his conviction and sentence (see  HKSAR v LAM Ming Wing CACC152/2007).

8.In identifying the basis upon which DPC CHAN’s appeal was allowed, the Court of Appeal said:

“15. ... That basis was quite simply that the prosecution had failed to sufficiently proved, and the judge had failed to consider whether it had been properly established, that the applicant intended to pervert the course of justice.

16.  It was alleged by the prosecution that, assuming the riverside conversation had taken place as PW1 said, the applicant was intending to prevent the prosecution of the real culprits “Monkey” and “Ah Lung”.  Any such suggestion however had to explain the contents of the initial part of that conversation where, according to PW1’s evidence, the applicant had pressured him to “point the figure at his co-defendants” and, more starkly, the contents of the informal interview recorded in P15 during which, in the most unambiguous of terms, an interrogation of PW1 was undertaken by the applicant apparently because the police team did not believe the false “Billie” version given by PW1 during his video interview. “                           [Emphasis supplied]

9.It is thus clear that the introduction of the evidence of the recording of the informal interview went directly to the issue of DPC CHAN's intent. There was no, nor could there have been, objection to the introduction by DPC CHAN of the content of the recording for that purpose, whether the recording had been made with or without the knowledge of CHAN Ying Kin, Ken.

10.As will be seen from a transcript of the applicant's evidence, that fact did not appear to have been apparent to either DPC CHAN's counsel or the judge.

THE IMPUGNED EVIDENCE OF THE APPLICANT

11.In his testimony the applicant related to the trial court the events of which he was aware, as supervising officer of the investigation, leading up to and concerning the informal discussion with CHAN Ying Kin, Ken. His testimony continued as to further conduct of the investigation and the role of  DPC CHAN in it. DPC CHAN's counsel made reference to the applicant having prepared an annual performance report on DPC CHAN. He was interrupted by the court to suggest that evidence of that nature "can go in by agreement". That was followed by the following exchange between the court and counsel:

“Court: Well, the issue here is whether that recording was secret or not, right?

Mr Khosa: That is one...

Court: Because PW1 says he didn't know about this recording. The defence case is that it was not secret.

Mr Khosa: That is one aspect.

Court: Sgt Tse was present, we know that from the recording.

Mr Khosa: Yes, so it cannot be secret.”

12.Shortly after this exchange, the Court queried why counsel wished to show the applicant what appears to be a partial transcript of other contents of the recording pen. The dialogue continued:

“Mr Khosa: It just assists me having to repeat many things. You don't want to show him, fine.

Court: I mean - no, it's up to you, but I don't see the relevance.

Mr Khosa: The relevance is a (sic) propriety in using this pen; do police officers use such equipment? Why is such an equipment present? Is there anything wrong...

Court:   Yes, but you don't have to show P25, do you?”

13.Following upon a further brief exchange between counsel and the court there appears the testimony to which the Commissioner takes exception. It comprises four passages spoken by DPC CHAN’s counsel and the applicant’s responses in these terms:

“Q. We now know that in this pen, apart from the informal chat, there were other recordings relating to, for example, video interviews conducted with Ken and video interviews with other persons. From your point of view, first of all, do you know whether or not, apart from the defendant, do you have any personal knowledge whether there are other officers who use such digital pens as part of their investigation?

A. Yes.

Q. Can you say whether there's anything wrong with using such recording devices?

A. On one occasion I found that some hard work in offices, that is those who are willing to work, who went to buy this kind of digital recording device themselves for use. Because very often, I mean they, I mean that colleagues would approach citizens in Hong Kong or informants or witnesses. Apart from taking statements, they will have chats with them to see if any intelligence can be gathered.

Q. Fine. Yes, please.

A. Very often when they returned they would report, they will make a record, and sometimes they are afraid that they will forget what was said so there would be a recording and when they returned they could listen to the recording.

Q. Finally, can you confirm that the police force does not issue these recording devices, the officers have to provide their own?

A. As far as the recording device is concerned, there are stocks but very limited, just one or two, and very often the police officers will buy their own for their own convenience. For example, they can use it in the street.”

14.It is, in essence, the applicant's response to the second question upon which the Commissioner’s decisions rest. It is to be noted that no reference is made by counsel in these questions to the use of privately-owned recording devices.

15.The real complaint of the Commissioner is, simply, that the applicant did not say in response to any of the questions appearing in §13 above that the unauthorised use of a privately-owned recording device by DPC CHAN, or any other police officer, would have been contrary to §21-38 of the Force Procedure Manual (FPM 21-38) or to police force policy. That this is so appears from an affirmation by DPT MA Wai-luk filed in these proceedings: see §§4-42 below.

16.It has not been suggested on behalf of the Commissioner at any stage that the applicant was not entitled to give the evidence that he gave or that the evidence was untrue: the disciplinary measures taken against the applicant relate to his omission of any reference to the provisions of FPM 21-38.

POLICE FORCE PROCEDURES MANUAL

17.It is not in dispute that, at the time DPC CHAN recorded the informal discussion, chapter 21 of the internal Force Procedure Manual governed the use of recording equipment by police officers providing:

21-38 Tape recordings

Tape recorders may be used by police officers during the course of their duties upon the prior approval of a CIP or above for recording conversations for:

(a) investigative and intelligence purposes; or

(b) evidential purposes.

2. Only tape recorders on Formation charge may be used for the purposes outlined above.

3....

4. Whenever a tape recording is likely to be used in evidence, a proper chain of evidence is to be maintained concerning the security of the tape recorder, loading of the tape, the unloading of the tape and the subsequent storage of the tape.

18.It is clear from the unchallenged evidence of the applicant at the trial of  DPC CHAN that there was never any suggestion, or intention, that the tape recording of the informal interview was "likely to be used in evidence". Its purpose was simply to act as an aide memoir for DPC CHAN in his investigation of the wounding offence. It was used in evidence simply because of the prosecution instituted against DPC CHAN and then not to prosecute anyone, but, rather, because it was directly material to DPC CHAN's state of mind.

19.Equally, the applicant has never suggested that he was unaware of the provisions of  FPM 21-38.

THE DISCIPLINARY PROCEEDINGS

20.The procedure to be followed when conducting a preliminary investigation is set out in §§5.19 to 5.21, and when the issue of a written warning to an officer is contemplated in §§4.10 to 4.13, of the Procedural Guide on Discipline. The applicant does not contend that there was non-compliance with those procedures. I regard it as necessary, for a proper appreciation of the basis of the two decisions, to trace the course of the disciplinary proceedings against the applicant.

21.The applicant was interviewed on two separate occasions, 17 July 2007 and 7 November 2007 by SP POON Kit-sang concerning the testimony he had given.

22.He was interviewed again on 20 October 2009 by WSSP CHOI Yuen-han: that interview covered two complaints in addition to that relating to his testimony on behalf of DPC CHAN. As those two additional complaints eventually were not pursued against the applicant, I do not propose to set out the details of them. Suffice it to say that one of them, which initially in essence alleged that the applicant had failed to disclose a conflict of interest which existed during the investigation of the wounding case but subsequently was re-characterised as making a false statement, resulted in an investigation by the ICAC which, finally, was abandoned. The applicant, it appears, was informed in April 2009 - well before the interview in October that year -  by the ICAC that its investigation had been completed and that no action would be taken against him.

23.A letter dated 7 January 2010 was addressed to the applicant on behalf of the Commissioner indicating that three allegations had been made against him, those being the subject of the interview with WSSP CHOI Yuen-han. He was invited to make written representations why such an enquiry should not be held. It is to be noted that, in that letter, the allegation against him in regard to his testimony was:

"In your evidence, when asked to comment if it was wrong to use recording device during investigations, you responded stating that you knew there were officers, some hard-working officers, who used private recording devices to record conversations with witnesses. In fact, such procedure was against those laid down in FPM 21-38 which stipulates that the use of tape recorders for recording conversations for investigative, intelligence or evidential purposes must be approved by a Chief Inspector and must be carried out using tape recorders on formation charge only. It is alleged that such statement reflects poorly on the professionalism expected of an officer of your seniority and experience."

24.The applicant responded to that letter by way of a submission, 20 pages long, dated 20 January 2010. According to a letter dated 6 July 2010 addressed to the applicant the explanations tendered by him were "reviewed by the Hong Kong Police Force Headquarters in consultation with the Secretariat on Civil Service Discipline". That letter again made three allegations of misconduct: the emphasis of the allegation in regard to his testimony at trial remained on the fact that that testimony "... reflected poorly on the level of professionalism expected of an officer of your seniority and experience."

25.Once again the applicant responded: his letter of 21 July 2010 attached a copy of his earlier submissions. That letter contained the submission:

"As regards the questions and answers contained in the transcript that was given to me by the former CSP C&IIB in January 2010, I am unable to remember the full details after three years. The transcript [of his testimony] appears to be part of the questions put to me, but the extract may not provide a clear picture without taking the full evidence including the tone of my answers and the atmosphere of the trial at various stages of the trial into consideration. That said, I can see from the page of transcript and according to the best of my memory that I was asked about something factual (at least this was the message I received in the witness box) rather than an opinion of whether it was correct from police discipline perspective. I therefore told the court of the fact that I had learned of such practice, no matter right or wrong, of some police officers via words of mouth and their reasons of doing so. This was what I heard and was aware of. I did not think it was correct for me to conceal such information in the witness box. I also did not consider that such testimony involved any issues of privilege or public interest.

To conclude, I simply answered all questions put to me by either the Prosecution or the Defence, truthfully and to the best of my knowledge and belief...."   [Emphasis supplied]

26.In a statement dated 29 July 2010 WSSP CHOI, who had interviewed the applicant in October 2009, asserted that statement to be "... in relation to the disciplinary review conducted by me on" the applicant. In her statement she asserted that the request to the applicant to "comment" whether there was anything wrong with using recording devices "... was relevant in DPC CHAN's case because the case was that DPC CHAN had used a digital device whilst interviewing an arrested person in a ‘Wounding’ case.". DPC CHAN's case, of course, was not about the fact that he had used a digital device but about the fact that he was alleged to have done an act tending and intended to pervert the course of justice.

27.It is also clear from her statement that she took into account the other two allegations for, after reviewing all three complaints, she concluded:

"Based on the above findings, I am of the opinion that considering SP YU's experience and seniority in the force, in particular his long service in the crime stream, his acts demonstrate a lack of professionalism on his part."

[Emphasis supplied]

28.In a minute dated 3 December 2010 SSP McNicol noted that a decision had been made not to pursue, on a disciplinary basis, the issue previously investigated by the ICAC. He then dealt with the two remaining allegations, including that concerning the testimony given by the applicant. In this latter connection he recorded:

"The assessment from C&IIB that SP Yu's testimony... relating to the use of private recording devices reflected poorly on the level of professionalism expected of an officer of SP Yu’s seniority and experience, is rather subjective, given that the assessment was made in the cold light of day after the trial had concluded, and without the stress of giving evidence in court. It is noted that SP Yu's testimony did not adversely impact on the result of the case."

repeating, in his conclusion:

"... To state that SP Yu's testimony reflected poorly on an officer of his rank and service is subjective. SP Yu’s comments on this have been consistent and all police officers are aware that in court one must answer questions put to them, truthfully, as best they may. Police officers giving evidence cannot control the questions and must answer as best they can. While SP Yu's answers in the opinion of some individuals may not have been as comprehensive or exact, and may have differed from the answer another officer may have given in similar circumstances, it is debatable and subjective."

29.SSP McNicol went on to express the view to the Commissioner that available evidence in favour of holding a committee of enquiry was not compelling; the applicant’s alleged misconduct did not fall into that category requiring formal disciplinary action; recommended that summary disciplinary action be taken; indicated that "... an appropriate sanction would be to give a written warning...". In making that recommendation he indicated that it was made "... having considered all factors".

30.SSP McNicol’s recommendation was obviously adopted resulting in the first decision, but only in respect of the allegation concerning the applicant’s testimony. The other, outstanding, allegation received no further mention in communications addressed to the applicant, at least according to the material provided for these proceedings.

31.The first decision was communicated to the applicant by way of a memorandum dated 11 March 2011 in which he was informed that no formal disciplinary action would be taken against him but that summary disciplinary action by way of a written warning would be issued. The Description of the Misconduct appeared in that warning in these terms:

"On 17 October 2006 during the trial of Mr. CHAN Yat-chuen at the District Court, your testimony in connection with the use of (sic) police officers’ usage of private recording devices, reflected poorly on the level of professionalism expected of an officer of your seniority and experience."

32.It is clear from that notice that the Commissioner confines his complaint simply to the applicant’s response regarding “usage of private recording devices” and not to the use of police force owned devices used without the requisite permission as required by FPM21-38.

33.The applicant wrote to the Commissioner indicating that he was considering lodging an appeal against the first decision and requesting the provision of certain documents as well as an extension of time within which to lodge his representations. The documents were supplied and the request for an extension of time granted by the Commissioner by way of letter dated 29 March 2011. The applicant responded by letter dated 30 March 2011 requesting a transcript of his full testimony during the trial which was provided by the Commissioner on 1 April 2011.

34.On 5 May 2011 the applicant made written representations appealing the first decision of the Commissioner. These were contained in a letter dated 5 May 2011. In the course of those submissions he said, after extracting from the transcript of his testimony:

“8. As can be seen from the above questions and answers, I merely told the court what I knew and no more. It is plain that I did not comment on "whether there’s anything wrong". I declined to comment because the matter on which I was invited to comment was wholly irrelevant to the issues to be decided by the court....

9. When I was giving evidence, my understanding is that I was called as a witness of fact and I was giving evidence as to what I saw or heard as a witness of fact. I was not called to give opinion evidence, expert or otherwise. As can be seen from the transcript, I did not offer my opinion as to "whether there’s anything wrong".

35.The applicant was advised of the second decision by a memorandum dated 22 June 2010, signed by SSP McNicol on behalf of the Commissioner, that his appeal had been considered but, effectively, dismissed. Attached to that memorandum was a document styled "DPT’s deliberation on appeal submitted by SP Yu Chi-hung", dated 14 June 2011 signed by DPT MA.

36.DPT MA has furnished an affirmation in these proceedings regarding his decision to dismiss the applicant’s appeal. Annexed to his affirmation is a document, containing a recommendation that the applicant’s appeal be dismissed and his misconduct dealt with by way of written warning, which apparently was authored by CSP LAU Wai-mun: DPT MA indicated in §17 of his affirmation that he relied upon that document in the course of his decision-making.

37.In that document CSP LAU observed:

"16. Though repeatedly denied by [the applicant] who claimed that he had never commented on whether it was right or wrong for the use of private recording device by police officers, he had implicitly praised those using the device for intelligence gathering as "hard-working" and "willing to work" officers which could be easily interpreted in layman's terms. His response was considered as more than a factual account of his knowledge of such use by the personal comment of his favouritism of such use."

38.As poorly phrased as that paragraph and as strained the interpretation she seeks to attribute to the applicant's testimony may be, it is noteworthy that she identified any "comment" that may have been made as being personal to the applicant. It follows that it is not reflective of any police policy.

39.In the succeeding paragraph, after reiterating the gist of §21-38 of the Force Procedure Manual and observing that, because of his background the applicant should have been aware of such requirement, she concludes:

"... and being a senior officer of the management, his remarks made at court had not only cast doubt to [sic] his professionalism but occasioned concerns from members of public regarding the good services provided by the Force."  [Emphasis supplied]

40.The conclusion that the applicant’s testimony occasioned any such concern is without any factual basis. As Mr. Ismail, who appeared for the Commissioner in this application, realistically accepted there is simply no evidence to this effect.

41.In his affirmation DPT MA indicates that he came to his conclusion that:

"22. By not referring to FPM 21-38 in his testimony, the applicant gave the impression that hard-working police officers engaged in gathering intelligence and making records of what they discovered in the course of their duties were allowed by force management to use their own recording devices as they wished. This impression was erroneous because this was contrary to FPM 21-38 which was clear and unambiguous and applicable when the applicant gave his testimony."

based upon CSP LAU’s interpretation of the effect of the applicant’s evidence as well as her unsupported finding.

42.When the decision was communicated to the applicant, after identifying the use of private digital recording devices as contravening the Force Procedures Manual, DPT MA continued:

"2. ... As an experienced crime manager [the applicant] should have taken the opportunity to explain the correct Force stance on the usage of recording devices in accordance with the FPM rather than give the erroneous impression that the Force endorsed officers purchasing and using their own recording devices as they wished.

3. Whether [the applicant’s] remarks had led to the defendant's acquittal is immaterial, because the damage was there when the court or members of the public received the implied meaning, a meaning which was in fact inconsistent with the Force’s procedures effective at that time.... The crux is whether [the applicant] had the correct perception and gave a professional response in line with what was then the Force’s procedures, and that he expressed himself in a way that the management can reasonably expect of an officer holding such senior rank. I consider that [the applicant’s] remarks were unprofessional and did fall short of the management's expectation of an officer of his seniority and experience."    [Emphasis supplied]

THE APPLICABLE PRINCIPLES

43.Mr. Ismail commenced his written submissions with a summary of the principles applicable to proceedings of this nature. Mr. Tang, for the applicant, took no issue with the correctness of that summary.

44.The legislature has entrusted the Commissioner, not the courts, to determine disciplinary charges against members of the Police Force. The Commissioner is to be presumed to bring to bear his knowledge and experience of the requirements and operations of the Force (see AU YEUNG Kwok Hing v The Attorney General for and on behalf of the Commissioner of Police CACV205/1994 (unreported, 7 February 1995)). A court will be very slow to disturb an assessment by a disciplinary tribunal, and thus the Commissioner, as to matters of an operational nature (see LAM Siu-Po v Commissioner of Police (2009) 12  HKCFAR 237). It is not for the courts to second-guess the professional judgment of a disciplinary committee unless that committee has plainly misread the evidence and come to a conclusion which is contrary to it or is otherwise plainly wrong (see TONG Pon Wah v Hong Kong Society of Accountants  [1998] 2 HKLRD427).

45.The Police Force is no exception to the general rule that a disciplinary body is in a better position than the courts to determine the effect and impact of the conduct of a member over which it exercises jurisdiction: the courts will not intervene "... unless something has gone seriously wrong and an irrational decision is made". (see TSANG Hing Shing v Commissioner of Police CACV192/2003). The decision must be one that is contrary to the evidence or otherwise plainly wrong so that it is one which no reasonable decision maker could reach (see SIT Wai Lok v Commissioner of Police and Another HCAL69/2004 (unreported, 20 June 2005)).

46.It is the Commissioner’s submission that the two decisions were made in accordance with those principles and, based on the evidence during the disciplinary proceedings, were rational.

THE DECISIONS

47.In the two letters dated 7 January 2010 and 6 July 2010 foreshadowing the disciplinary action against him as well as in the memorandum dated 11 March 2011 communicating the first decision to the applicant no details were provided of the manner in which it was contended his testimony reflected poorly on the expected level of professionalism.

48.It emerges now, from the material available as a result of the applicant's appeal, that what the Commissioner had in mind was the applicant's failure to say during his testimony that the unauthorised use of a privately owned recording device would have been contrary to FPM 21-38 or to police force policy.

49.It is pertinent to note at this stage, in regard to the first decision, that the recommendation by SSP McNicol (§§29-30 above) as to the taking of disciplinary steps against the applicant clearly covered the two allegations then pending against the applicant. It did not consider whether, individually, each was worthy of summary disciplinary action or whether it was the cumulative effect of them which justified such an approach. In the event, it was only the complaint concerning the applicant’s testimony that resulted in disciplinary action being taken: the unarguably more serious allegation of having made a false statement whilst under investigation simply disappeared.

50.The failure to mention FPM 21-38 or police force policy, according to CSP Lau "... occasioned concerns from members of the public regarding the good services provided by the Force" or, according to DPT MA, would "... give the erroneous impression that the Force endorsed officers purchasing and using their own recording devices as they wished.".

51.As has already been established, there was simply no evidence or any factual basis to support the conclusion of CSP LAU.

52.The failure to mention FPM 21-38 or police force policy, according to DPT MA, would "... give the erroneous impression that the Force endorsed officers purchasing and using their own recording devices as they wished.".

53.That conclusion arrived at by DPT MA is contrived and is plainly wrong. It simply cannot be said, sensibly, that anything in that testimony in any way suggests, either expressly or impliedly, that use of privately owned recording devices is allowed, condoned, tolerated or endorsed by the police force.

54.The testimony is completely neutral and merely relates a factual situation as to the actions of some members of the police force, as then known to the applicant. The disinterested observer would find the answer innocuous and unremarkable.

55.It needs to be borne in mind that the applicant had prepared a statement covering the issues upon which he expected to testify. The Force Procedure Manual was not one of those issues. The three questions covering the use of recording devices, which had no relevance to any of the issues in the trial, were general in their terms and, themselves, made no reference to that manual or, in terms, to privately-owned recording devices or even to police-owned recording devices used without proper consent.

56.The applicant was obliged to give an honest answer to each of the questions put to him. He was asked whether he thought there was anything wrong with the use of  "digital pens" not of the use of privately-owned devices or whether it was in accordance with police policy or any internal police procedures. It was the applicant himself who volunteered the information that some police officers purchase such devices for their own use.

57.In these circumstances there is no reason why the applicant, who was in the midst of testifying and of course would have had no idea in which direction the questions would be proceeding, should have associated those general, unfocused questions with the specific provisions of FPM21-38.

58.Of significance in this context is a question by counsel for DPC CHAN of the applicant immediately before turning to the topic of the digital recording device. That question related to two documents which were referred to as "the triad charts" which had been located in DPC CHAN's personal locker. The exchange is recorded as follows:

"Q.  Now, these two charts... were found in the locker of the defendant in the police station. Is there anything wrong with the defendant being in possession of these two charts?

A.  I don't think there's anything wrong with it."

59.The applicant gave a clear and succinct answer to a focused question addressed to him. He states, in his letter of 20 January 2010:

"If I were asked if it is against FPM 21-38 by doing so, I would have told the court the affirmative."

which is consistent with the way he answered the question referred to above.

60.Moreover, the applicant's role was that of a witness, not a spokesman for the Commissioner. To further suggest that by having taken the standard oath to tell the truth, he in some way fell short of that undertaking by not having made reference to the FPM or police policy is fanciful.

CONCLUSION

61.I am satisfied that in the case of each decision to the effect that the applicant’s testimony reflected poorly on the level of professionalism expected of an officer of his seniority and experience, each was a decision based in part on irrelevant considerations and, in any event, was a decision at which no reasonable decision maker could arrive on any balanced and dispassionate reading of the applicant’s testimony.

62.I am further satisfied, in regard to the second decision, that: the finding that the testimony occasioned concern from members of the public by CSP LAU was unsupported by any evidence; the finding by DPT MA as to the erroneous impression created is irrational; the decision of the Commissioner’s opinion based upon these findings, whether in whole or in part, is unsustainable.

63.There consequently will be:

a)   an order of Certiorari bringing up to this court and quashing the decision dated 11 March 2011 of the Commissioner to issue a written warning to the applicant;

b)   an order of Certiorari bringing up to this court and quashing the decision dated 14 June 2011 of the Commissioner dismissing the applicant’s appeal against the decision dated 11 March 2011;

c)   an order of Mandamus requiring the Commissioner to remove the written warning from the service record of the applicant; and

d)   an order nisi, returnable within 14 days, that the Commissioner pay the applicant’s costs of these proceedings.

Mr. Ronald Tang instructed by Jesse SY Kwok & Co. for the Applicant

Mr. Anthony Ismail counsel-on-fiat for the Respondent