Fu Kin Chi, Willy v The Secretary For Justice

Cited as:[1998] 1 HKLRD 271;(1997-1998) 1 HKCFAR 85
Court:Court of Final Appeal (Hong Kong)
Judgement Number:FACV2/1997
Judgment Date:05 Mar 1998
FACV000002/1997 FU KIN CHI, WILLY v. THE SECRETARY FOR JUSTICE

FACV No. 2 of 1997

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 1997 (CIVIL)
(ON APPEAL FROM CACV No. 34 OF 1997)

_____________________

Between
FU KIN CHI, WILLY Appellant
AND
THE SECRETARY FOR JUSTICE Respondent

_____________________

Appeal Committee: Chief Justice Li, Mr Justice Ching PJ, Mr Justice Bokhary PJ, Mr Justice Power NPJ and Sir Daryl Dawson NPJ

Date of Hearing: 26 February 1998

Date of Judgment: 5 March 1998

_________________

J U D G M E N T

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Chief Justice Li:

1. The question arising in this appeal is whether a police officer is obliged to assist in a police investigation into possible disciplinary offences by him by answering questions although his answers might tend to incriminate him in such offences.

2. The appellant (who was a police officer at the material time) submits that a police officer is not so obliged and that he is entitled to refuse to assist in the investigation by exercising the privilege against self-incrimination. The respondent submits that he is so obliged because the privilege against self-incrimination has been abrogated by statute. The Court of Appeal (by a majority) upheld the respondent's submission.

3. The question before us is essentially one of statutory interpretation and the Court's task is to ascertain the intention of the legislature.

The facts

4. The appellant was at the material time a Senior Police Inspector, having risen from the rank of constable since 1980 when he joined the Police Force.

5. In late July 1993, a disturbance occurred at a karaoke lounge in Tsimshatsui East. The alleged victims were middlemen in connection with the supply of a number of portable telephones. The supplier had been paid $240,000 but he disappeared and the portable telephones were never delivered. On the night in question, the middlemen went to the karaoke lounge to explain to the buyers. They alleged that they were assaulted, unlawfully detained and intimidated. During the disturbance, a person entered the room and claimed to be "YT DATS Fu Sir" (Yaumatei District Anti-triad Squad). He then assaulted and intimidated one of the victims, threatening him to come up with the money.

6. As a result of an investigation by the police, it was suspected that the appellant (whose surname is Fu) was involved in the disturbance. Further investigations led the police to suspect that the appellant had allowed another person to pay the fees of a portable telephone he had used for some time, that he organised an unauthorised chit fund involving police officers and that he had associations with triad members. Between 13 September 1993 and 4 February 1994, the appellant was interviewed on a number of occasions. These interviews were initially conducted by Chief Inspector Tse Keung and later by Chief Inspector S B Tarrant who took over on 30 November 1993. The questions asked at first concentrated on the disturbance at the karaoke lounge and later extended to the various matters referred to above.

The interviews prior to 4 January 1994

7. On 13 September 1993, after an identification parade when the appellant was identified by one victim but at which another witness present at the disturbance failed to identify him, the appellant was interviewed under caution. He said: "I haven't done it and I have nothing to say". He was interviewed again later that day under caution. He answered various questions, denying the allegations put to him and saying he could not remember whether he had ever been to the karaoke lounge in question.

8. On 14 September 1993, after a brief interview under caution in the afternoon, the appellant was taken under caution and with his consent to the karaoke lounge in the evening. The staff did not recognise him. The appellant said he had never been to the karaoke lounge before.

9. On 30 December 1993, he was interviewed but not under caution. Chief Inspector Tarrant had now taken over. The appellant answered various questions relating to his family background, the business activities of his father in law, the portable phone and the alleged chit fund.

The interviews on 4 January 1994

10. The appellant was interviewed under caution between 1630 and 1725 hours and between 1729 and 1850 hours. At the outset, he maintained that he did not want to answer any questions concerning the portable telephone or any other matter. He was nevertheless asked various questions concerning the portable telephone to which he replied that he did not wish to say anything. In the second part of the interview, Chief Inspector Tarrant told him that it was his duty to answer questions put to him in furtherance of an investigation and that he was ordered to do so. The appellant maintained that he was entitled to remain silent. He was then told that his answers would not be used in criminal proceedings but would only be used in possible future disciplinary action and ordered to answer. He maintained his right to silence. This he continued to do, when asked about the portable telephone and the alleged chit fund, even after another senior officer reminded him of his duty to answer and that he would be the subject of disciplinary proceedings if he refused. The only question he answered with a simple "yes" was when he was asked whether he knew three police officers.

11. By his solicitor's letter dated 5 January 1994 to the Police, the appellant stated that he was not willing to be interviewed or give any statement to the Police, would not assist in any investigation or answer any question as might at any time be put by the Police and would not be willing to be a witness.

12. On 15 January 1994, the appellant participated in a further identification parade but was not identified by another victim. (This was a different person from the victim who had taken part in the earlier identification parade.)

The interview on 4 and 5 February 1994

13. This is the crucial interview for the purposes of this appeal.

14. By the time this interview took place, Chief Inspector Tarrant had reached a firm conclusion that there was no chance of any criminal charges against the appellant and that a disciplinary investigation should be pursued.

15. The interview lasted from 2340 hours on 4 February to 0045 hours on 5 February. At the outset, Chief Inspector Tarrant told him that his statement "cannot and will not" be used against him in any criminal proceedings but was to be used for internal police investigations including possible disciplinary action against him. He was reminded that it was his duty as a police officer to assist. Chief Inspector Tarrant explained that he was not in a position to say what disciplinary action might be taken. But a report would be submitted for legal advice. The appellant requested that his solicitor be present. This was acceded to although Chief Inspector Tarrant said he was not entirely convinced that the appellant was entitled to have a solicitor present. Questions were asked as to whether the appellant knew various individuals and whether he was present at the karaoke lounge on the night in question. The appellant refused to answer the questions and maintained a right to silence upon legal advice.

16. Prior to this interview, the appellant's solicitor had sent a letter by fax in the afternoon of 4 February to the Police. This letter reiterated his position in the earlier letter save that there was no reference to his unwillingness to be a witness.

The disciplinary charges

17. The appellant was charged with two disciplinary charges under the Police (Disciplinary) Regulations, namely:

"(A) Charge, Contravention of Police Order, contrary to Regulation 3(2)(e) of the Police (Discipline) Regulations, 1982.
Particulars: ... you are charged that on the afternoon of 4.1.94 ... you refused to obey a lawful order given to you by Mr S.B. Tarrant, ... namely to answer questions relating to a police investigation.

(B) Charge, Conduct to the prejudice of good order and discipline contrary to Regulation 3(2)(c) of the Police (Discipline) Regulations, 1982.
Particulars: ... you are charged that between 2340 hrs on 4.2.94 and 0045 hrs on 5.2.94 ... you being a serving police officer ... failed to assist in a police investigation being conducted by Mr S.B. Tarrant, such conduct being to the prejudice of good order and discipline."

The disciplinary proceedings

18. The disciplinary proceedings were conducted by Superintendent F J De Oliveira, the appropriate tribunal constituted under the Police (Discipline) Regulations. The prosecution was undertaken by a Chief Inspector and the appellant was defended by a Senior Inspector. After the appellant pleaded not guilty on 31 March 1994, hearings took place between 24 April and 27 June 1995. On 17 July 1995, Superintendent De Oliveira announced his finding acquitting the appellant of Charge A but convicting him of Charge B. In his reasoned judgment, the Superintendent in acquitting the appellant of Charge A gave him the benefit of the doubt. He found that events took several turns at the interviews on 4 January. Although Chief Inspector Tarrant believed that when the appellant was ordered to answer, he was pursuing a disciplinary investigation, the appellant could well have confused the situation and thought that it was a criminal investigation when he refused to answer. As regards Charge B, Superintendent De Oliveira found that the approach of Chief Inspector Tarrant on 4 February was entirely different from the start of the interview when he made clear that it was a disciplinary investigation. He found that the appellant used the excuse of the right of silence to avoid answering questions relating to the disciplinary investigation, and that he must bear the...

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