Right to Fair Hearing and Legal Representation in Disciplinary Proceedings

Lam Siu Po v Commissioner of Police [2009] HKCFA 24 (26 March 2009) In a case relating to the validity of a statutory bar to legal representation in police disciplinary proceedings, the Court of Final Appeal of Hong Kong established the following principles:

• the right to a fair hearing in art 10 of the Hong Kong Bill of Rights can apply to disciplinary proceedings; and
• the right to a fair hearing requires that a disciplinary tribunal consider permitting the respondent to be legally represented. Excluding the possibility of a tribunal from exercising such discretion will be inconsistent with art 10.

Facts

Lam Siu Po, a Hong Kong police constable, engaged in stock market dealings.  He lost heavily, found himself deeply in debt, petitioned for his own bankruptcy, and was adjudicated bankrupt in September 2000.  Consequently, in December 2000, he was charged with the disciplinary offence of contravening Police General Order 6-01(8) ("PGO 6-01(8)") which at that time read:

"A police officer shall be prudent in his financial affairs.  Serious pecuniary embarrassment stemming from financial imprudence which leads to the impairment of an officer's operational efficiency will result in disciplinary action."

Lam Siu Po pleaded not guilty.  Regulation 9 of the Police (Discipline) Regulations lays down the procedure to be followed when a defaulter (a police officer charged with a disciplinary offence) pleads not guilty.  Paragraphs (11) and (12) of reg 9 read:

"(11) A defaulter may be represented by -

• (a) an inspector or other junior police officer of his choice; or
• (b) any other police officer of his choice who is qualified as a barrister or solicitor,

who may conduct his defence on his behalf.

(12) Subject to paragraph (11), no barrister or solicitor may appear on behalf of the defaulter."

Two sets of disciplinary proceedings then took place with Police Superintendents sitting as the adjudicating officers.  The first took place in January 2001 and, pursuant to reg 9, Lam Siu Po, the defaulter, was represented by a Police Inspector and found guilty of a disciplinary offence.  This conviction was set aside and a second proceeding began in December 2001.  The Police Inspector who had represented Lam Siu Po in the first proceeding was not available and as Lam Siu Po had difficulty in finding replacement representation, he represented himself throughout the second proceedings.  Lam Siu Po was again found guilty and the penalty imposed was compulsory retirement and deferment of pension benefits.  Lam Siu Po then appealed on the applicability and operation of art 10 in connection with police disciplinary proceedings.

Decision

The Court unanimously allowed the appeal on the grounds that depriving the disciplinary tribunal of any discretion to permit legal representation, via the operation of regulations 9(11) and 9(12), prevented Lam Siu Po from having a fair hearing and was in contravention of art 10.  Article 10 provides the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.

The Applicability of Article 10 to Disciplinary Proceedings

The Court held that art 10 was engaged in respect of the appellant's disciplinary proceedings.  Article 10 protections come into play when a person is subject to a determination of his or her rights and obligations in a suit at law, meaning a determination of his or her civil rights and obligations.  Since the engagement of art 10 depends on whether an individual's civil rights and obligations are to be determined in a specific instance, art10 may be engaged only in relation to some, but not all, the matters dealt with by a particular administrative authority or administrative tribunal.  In this case, the court found that the appellant undoubtedly faced a determination of his rights and obligations.  This conclusion was reached by adopting the approach of the European Court of Human Rights developed in Rigisen v Austria (No 1) (1971) 1 EHRR 455; namely, that the disciplinary proceedings had a direct and highly adverse impact on the appellant's civil rights and obligations, the Court recognising that the right to practice one's profession is a civil right.

The Right to a Fair Hearing

Where art 10 becomes engaged, as in the present case, the person concerned becomes entitled to 'a fair and public hearing by a competent, independent and impartial tribunal established by law.'

Article 10 does not require every element of the protections conferred to be present at every stage of the determination of a person's right and obligations.  Rather, such protections should be effective when the determination is viewed as an entire process, including such appeals or judicial review as may be available.  For example, in many situations, it is inevitable and not improper that the initial administrative determination of a person's civil rights and obligations should be taken by someone who is part of the administrative body concerned and so is plainly not independent.  In reaching this conclusion, the Court approved the principle in the Runa Begum Case [2003] 2 AC 430 that in certain circumstances, the requirement of independence is met by the availability of judicial review.  The Court also noted that although publicity is an important aspect of a fair trial, it does not mean that there must be publicity at the original hearing or at every stage.

The Court also noted that although it was never suggested that either of the disciplinary tribunals convened were lacking in competence or impartiality, when the process was viewed as a whole, the protections of independence and publicity were achieved through recourse to judicial review.

The Court had to determine whether the disciplinary proceedings were unfair because of the exclusion of legal representation in circumstances where fairness demanded such representation.  The Court found that there is no absolute right to legal representation in disciplinary proceedings, this right being a matter to be dealt with in the tribunal's discretion in accordance with principles of fairness on a case-by-case basis.  However, as regs 9(11) and 9(12) imposed a blanket restriction on professional legal representation in police disciplinary proceedings, the Tribunal was prevented from complying with art 10 and its duty of fairness where such duty calls for legal representation to be permitted.  As such, regs 9(11) and 9(12) were systemically incompatible with art 10.  In the present case, the Tribunal, believing in the footing of regs 9(11) and 9(12), never considered whether the case called for legal representation.  This omission made the proceedings inherently unfair and the appellant was deprived of a fair hearing.

Relevance to the Victorian Charter

The Court's decision has implications for s 24 of the Victorian Charter, which contains the right to a fair hearing in similar terms to that found in art 10 of the Hong Kong Bill of Rights.

Although s 24 is limited in its application to parties to a 'civil proceeding' rather than persons 'subject to a determination of his or her rights and obligations in a suit at law', the better view is that s 24 applies to at least those disciplinary proceedings that involve a determination of a person's civil rights and obligations.  The requirement of a fair hearing requires that these tribunals consider permitting legal representation.  Failure to do so may violate the right to a fair hearing under s 24.

The decision is available at http://www.hklii.org/hk/jud/eng/hkcfa/2009/FACV000009_2008-65003.html.

Rhiannon Reid is a volunteer with the Human Rights Law Resource Centre