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
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THE SECRETARY FOR JUSTICE Respondent

_____________________


Court: Chief J ustice Li, Mr J ustice Ching PJ , Mr
J ustice Bokhary PJ , Mr J ustice Power NPJ and
Sir Daryl Dawson NPJ

Date of Hearing: 26 February 1998

Date of J udgment: 5 March 1998



J U D G M E N T





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Chief J ustice Li:

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.

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.

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

In late J uly 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.

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
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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
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.

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
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him. The appellant said he had never been to the karaoke lounge before.

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
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,
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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.

By his solicitor's letter dated 5 J anuary 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.

On 15 J anuary 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
This is the crucial interview for the purposes of this appeal.

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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.

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.
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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
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
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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 J une 1995. On 17 J uly 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 J anuary. 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 responsibility for accepting the
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legal advice given to him by his solicitor. He concluded:
" I believe that in respect of the 'B' CHARGE the defaulter
deliberately tried to obstruct a legitimate enquiry into apparently
well founded allegations as to his possible misconduct. This
attacks the very basis of integrity, professionalism and discipline
upon which this Police Force relies. Accordingly, I find that the 'B'
CHARGE is appropriate and fully proven, and I find the defaulter
'GUILTY' of this charge."

On 20 November 1995, the Commissioner of Police informed
the appellant that his appeal against the finding of guilt in relation to
Charge B had been dismissed and that a report of the case would be
forwarded to the Governor in accordance with Regulation 27(1) of the
Police (Discipline) Regulations which provide for this course where it
appears to the Commissioner that dismissal or compulsory retirement is
merited. The appellant made representations to the Governor. On 17
J anuary 1996, the Secretary for the Civil Service wrote to the appellant
informing him that he, in the exercise of the authority delegated by the
Governor, had directed that the appellant be compulsory retired with a
deferred pension.

The judicial review challenge
The appellant challenged by judicial review the finding of
guilt on Charge B and the disciplinary sanction. He relied on two
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grounds. First, he had a right to remain silent. Secondly, he relied on
the ground of bias.

The judgment at 1st instance
Yeung J dismissed his challenge on both grounds. In
relation to the first ground, the arguments before him focused on the
appellant's right to remain silent as a criminal suspect.

The Court of Appeal
By a majority, the Court of Appeal dismissed the appellant's
appeal. The majority (Litton VP, as he then was, and Liu J A) held that
the privilege against self-incrimination against possible disciplinary
offences had been overridden by statute. Godfrey J A, dissenting, held
that it had not been. The majority also dismissed the ground of bias.
Godfrey J A did not deal with this ground.

Leave to appeal
On 18 J une 1997, the Court of Appeal (Mortimer J A, as he
then was, Liu and Godfrey J J A) granted leave to appeal to the Privy
Council.
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On 1 J uly 1997, the People's Republic of China resumed the
exercise of sovereignty over Hong Kong and the Hong Kong Special
Administrative Region of the People's Republic of China was established
under the principle of "one country, two systems" exercising a high degree
of autonomy. On that date, the Court was established as the final
appellate court of the Hong Kong Special Administrative Region. The
appellant's appeal to the Privy Council came to the Court instead.

The question
At the hearing before us, Mr J ohn Bleach SC, who appeared
for the appellant (not having done so in the courts below), abandoned the
ground of bias. The only question therefore is whether the appellant was
entitled to remain silent.

The nature of the crucial interview
As regards the interview on 4 and 5 February, in my
judgment, it is clear from the evidence that:

(1) Chief Inspector Tarrant was conducting a legitimate
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investigation into possible disciplinary offences committed by
the appellant and the questions he asked were proper
questions within the scope of the investigation.

(2) The appellant knew that it was a disciplinary investigation
and not a criminal one, and that he was asked to assist by
answering questions and his answers could and would not be
used against him in any criminal proceedings.

(3) Chief Inspector Tarrant made plain to the appellant that it was
his duty to assist in the disciplinary investigation and that he
was in effect ordered to answer the questions.

As I understand his arguments, Mr Bleach SC for the
appellant did not challenge the position set out above.

Common law privilege
At common law, a person has the privilege from being
compelled to answer questions, the answers to which might tend to expose
him to any punishment or penalty (including a disciplinary one) and this
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privilege is capable of application in non-judicial proceedings. That this
is the position at common law was accepted by Mr Robert Tang SC who
appeared for the respondent and was clearly established by decisions of
the High Court of Australia in Pyneboard Pty Ltd v. Trade Practices
Commission (1983) 152 C.L.R. 328; Sorby v. The Commonwealth (1983)
152 C.L.R. 281; and Police Service Board v. Morris (1985) 156 CLR
397.

In R v. Director of Serious Fraud Office ex parte Smith
[1993] AC 1 (at p.30), Lord Mustill in a judgment which is invariably
quoted on this subject pointed out that "the right of silence" does not
denote any single right but refers to a disparate group of immunities which
differ in nature, origin, incidence and importance and also the extent to
which they have already been encroached upon by statute. He identified
six immunities or privileges. The privilege with which we are here
concerned is the second identified by him, namely:

" A general immunity, possessed by all persons and bodies,
from being compelled on pain or punishment to answer questions
the answers to which may incriminate them."

Whether abrogated by statute
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Lord Mustill observed (at p.40):
" That there is strong presumption against interpreting a statute
as taking away the right of silence, at least in some of its forms,
cannot in my view be doubted. Recently, Lord Griffiths
(delivering the opinion in the Privy Council in Lam Chi-ming v. The
Queen [1991] 2 A.C. 212, 222) described the privilege against
self-incrimination as 'deep rooted in English law', and I would not
wish to minimise its importance in any way. Nevertheless it is
clear that statutory interference with the right is almost as old as the
right itself. Since the 16th century legislation has established an
inquisitorial form of investigation into the dealings and assets of
bankrupts which is calculated to yield potentially incriminating
material, and in more recent times there have been many other
examples, in widely separated fields, which are probably more
numerous than is generally appreciated.

These statutes differ widely as to their aims and methods. In
the first place, the ways in which the overriding of the immunity is
conveyed are not the same. Sometimes it is made explicit. More
commonly, it is left to be inferred from general language which
contains no qualification in favour of the immunity. Secondly,
there are variations in the effect on the admissibility of information
obtained as a result of the investigation. Finally, the legislation
differs as to the mode of enforcing compliance with the questioner's
demands. .

In the light of these unsystematic legislative techniques there
is no point in summarising the various statutes drawn to our
attention. They do no more than show that the legislature has not
shrunk, where it has seemed appropriate, from interfering in a
greater or lesser degree with the immunities grouped under the title
of the right to silence. ."

The crux of this appeal is whether the common law privilege
has in this case been abrogated by statute. The relevant statute is the
Police Force Ordinance, Cap. 232, including the Police (Discipline)
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Regulations made thereunder. The question is whether the statute reveals
clearly either by express words or necessary implication that the intention
of the legislature was that the privilege should not be available to a police
officer in a disciplinary investigation. The punishment or penalty to
which a police officer might be subjected in a disciplinary proceeding is,
of course, a disciplinary one. The abrogation of the privilege where a
disciplinary offence is also a criminal offence raises another question, but
it would seem that the protection of the police officer in that situation
would lie in the inadmissibility in criminal proceedings of evidence elicited
involuntarily rather than in the privilege against self-incrimination. It is
unnecessary to pursue that question here.

There are no express words in the statute which have
specifically excluded the privilege and the respondent does not submit that
there are any such express words. The respondent's case is one of
abrogation by necessary implication.

As was pointed out by Gibbs CJ in Police Service Board v.
Morris (at p.40), in deciding whether a statute impliedly excludes the
privilege, much depends on the language and character of the statutory
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provisions and the purpose they are designed to serve. Mr Robert Tang
SC for the respondent submits that:

(a) The privilege against self-incrimination in respect of possible
disciplinary offences (as opposed to criminal offences) has
been implicitly abrogated since its operation would
undermine the statutory scheme under which the disciplinary
investigation was carried out.

(b) Such privilege has been abrogated by the Ordinance by
necessary implication, particularly section 30 in the context of
the statutory scheme.

The statutory scheme and provisions
I turn to examine the statutory scheme under the Police Force
Ordinance and the relevant provisions:

(1) The Police Force is a disciplined force under the supreme
direction of the Commissioner. See section 4.

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(2) The Ordinance lays down the duties of the Police Force.
See section 10. As one would expect, the duties specified
include preserving the public peace, preventing and detecting
crimes and offences and preventing injury to life and property.
In short, the Police Force is charged with the maintenance of
law and order.

(3) Before entering on the duties of a police officer, every officer
must take an oath or declaration of office which is now in the
following form:

"I will well and faithfully serve the Government of the
Hong Kong Special Administrative Region according
to law as a police officer, that I will obey uphold and
maintain the laws of the Hong Kong Special
Administrative Region, that I will execute the powers
and duties of my office honestly, faithfully and
diligently without fear or favour to any person and with
malice or ill-will toward none, and that I will obey
without question all lawful orders of those set in
authority over me."

See section 26 and the Schedule and section 2A and Schedule
8 of the Interpretation and General Clauses Ordinance added
by section 5 of the Hong Kong Reunification Ordinance.
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(4) Part III of the Ordinance deals with discipline and duties.
Section 30 in Part III provides:

"30. Police officers to obey lawful orders

Every police officer shall obey all lawful orders
of his superior officers whether given verbally or in
writing and shall obey and conform to police
regulations and orders made under this Ordinance."

(5) Section 31 in Part III confers on the Commissioner the power
of summary dismissal of any police officer whom he is
satisfied is guilty of contravening police regulations or any
police orders whether given verbally or in writing.

(6) The Chief Executive in Council (previously the Governor in
Council) may make police regulations which may provide for
discipline and punishments. See section 45(1)(d).

(7) The Police (Discipline) Regulations have been made.
Regulation 3(2) provides:

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"The offences against discipline are -

(a) absence from duty without leave or good cause;
(b) sleeping on duty;
(c) conduct to the prejudice of good order and
discipline;
(d) cowardice in the performance of duty;
(e) contravention of police regulations, or any police
orders, whether written or verbal;
(f) insubordination;
(g) being unfit for duty through intoxication;
(h) neglect of duty or orders;
(i) malingering;
(j) making a statement which is false in a material
particular in the course of his duty or in
connexion with the discharge by the police force
of any of its duties or functions;
(k) unlawful or unnecessary exercise of authority
resulting in loss or injury to any other person or
to the Government;
(l) wilful destruction or negligent loss of or injury to
Government property;
(m) conduct calculated to bring the public service
into disrepute."

I observe that a number of these offences, such as those in (c)
(l) and (m), can be committed by a police officer when he is
off duty.

(8) The Police Force has the statutory duty of maintaining law
and order. Its integrity and efficiency and public confidence
in its integrity and efficiency are of fundamental importance if
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it is to discharge its duty effectively.
(9) Its integrity and efficiency can only be maintained if the Force
can ensure that its members are subjected to disciplinary
authority. This could only be done effectively if the Force
has the fullest powers to investigate cases of possible
offences against discipline and, where justified after
investigation, to take disciplinary proceedings.

Abrogation ?
Where there is a legitimate investigation into possible
disciplinary offences which a police officer might have committed and he
is required to assist, the exercise by him of the privilege against
self-incrimination to refuse assistance, in my judgment, would plainly
undermine and be inconsistent with the scheme. It would, if nothing else,
be conduct to the prejudice of good order and discipline. Under the
scheme, the Force's integrity and efficiency and public confidence therein
are of fundamental importance for its effective functioning, and the
effective investigation of possible offences against discipline is essential to
maintaining its integrity and efficiency. In my judgment, he has a duty to
assist and it is clear that the legislature by establishing the scheme
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governing the Force intended that a police officer, when asked to assist in
such an investigation, cannot say to the Police authorities: "This is none of
your business". On the contrary, the legislature intended that it should
very much be the business and indeed the duty of the Force to investigate
possible disciplinary offences; this being essential to maintaining its
integrity and efficiency. That being so, the legislative intention by
necessary implication is that the privilege has been abrogated in relation to
a disciplinary investigation. Where he refuses to assist, a conviction for
the disciplinary offence of conduct to the prejudice of good order and
discipline would be fully justified.

In the present case, the assistance sought from the appellant
in the disciplinary investigation was answers to questions posed to him.
Assistance could be sought from a police officer under disciplinary
investigation in some other form, for example, by the production of
documents. The privilege cannot be invoked whatever the type of
assistance required.

That the legislature intended by necessary implication to
abrogate the privilege in a disciplinary investigation is further made plain
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by section 30. This imposes on every officer the statutory duty to obey
all lawful orders of his superior officers. This duty is also expressly
stated in the statutory oath or declaration of office. This duty is relevant
in this case since the appellant was in effect ordered to answer the
questions posed at the crucial interview. Section 30 contains general
words which are intended to apply to a wide variety of situations. They
must be construed in the context of the statutory scheme. When so
construed, this provision, in my judgment, by necessary implication
abrogates the privilege in relation to a disciplinary investigation. As Lord
Mustill observed (at p.40), the abrogation of the privilege by necessary
implication from general language which contains no qualification in
favour of the privilege is a common legislative technique. This was the
approach taken by the High Court of Australia in construing a provision
similar to section 30 in the context of the Australian statute in Police
Service Board v. Morris. But in a case where no orders have been given,
and section 30 does not apply, as I have held above, a police officer has a
duty to assist in a legitimate disciplinary investigation concerning him and
cannot invoke the privilege to relieve him of that obligation.

By abrogating the privilege against self-incrimination in
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relation to an investigation into possible disciplinary offences by a police
officer, the legislature has considered it appropriate, as it was entitled to
do, that the police officer's common law privilege must yield to the public
interest in the maintenance of integrity and efficiency of the Police Force.

Order
Accordingly, I would dismiss the appeal with costs.


Mr J ustice Ching PJ :

I have had the advantage of reading in draft the judgment of
the Chief J ustice. I agree that the appeal should be dismissed with costs
for the reasons he has given and I have nothing to add.


Mr J ustice Bokhary PJ :

I too agree with my Lord the Chief J ustice that this appeal
should be dismissed.
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The expression the right of silence is a highly evocative one.
It arouses, as Lord Mustill observed in Reg. v. Director of Serious Fraud
Office, Ex parte Smith [1993] AC 1 at p.30 E-F, strong but unfocused
feelings. It is a thoroughly healthy thing that people do feel strongly
about the right of silence. And they are not at all to be blamed if their
feelings about it lack focus: for the right of silence has so many
manifestations. Hopefully our judgments in this case will make some
contribution towards a better understanding by the public of that right or at
least certain aspects of it.

This case concerns the right of silence within a disciplined
service in the circumstances described below.

The appellant, a serving police officer, was interviewed by a
superior officer who was conducting an investigation into disciplinary
offences of which the appellant was suspected. But the appellant refused
to answer his superiors questions on the ground that answering
them may condemn him out of his own mouth on a disciplinary charge.
And he maintained his refusal even when ordered to answer.
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As a result, he was convicted of the disciplinary offence of
conduct to the prejudice of good order and discipline, contrary to
reg. 3(2)(c) of the Police (Discipline) Regulations, Cap.232 (the
Regulations). The particulars to the disciplinary charge resulting in that
disciplinary conviction took the form of an averment that he had failed to
assist in the investigation in question. But in substance the case against
him ran thus. His superiors order to answer was a lawful order. And
his refusal to answer constituted disobedience of a lawful order.

Neglect of duty or orders is a disciplinary offence contrary to
reg. 3(2)(h) of the Regulations. So a charge under reg. 3(2)(h) is the
most obvious one to bring in such a case as that.

Be that as it may, s.30 of the Police Force Ordinance, Cap.
232 (the Ordinance) requires every police officer to obey all lawful
orders of his superior officers. Reg. 3(2)(c) makes conduct to the
prejudice of good order and discipline an offence against discipline.
Any disobedience of a lawful order would inevitably prejudice good order
and discipline in a disciplined service. So any such disobedience would
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fall within reg. 3(2)(c) as well as reg. 3(2)(h). (As for contravention of
police regulations, or any police orders, whether written or verbal
covered by reg. 3(2)(e), I am inclined to think that the police orders there
referred to are police general orders made by the Commissioner of
Police under s.46 of the Ordinance or headquarters orders issued by him
under s.47 thereof.)

The right of silence is a common law right. It includes a
privilege against self-incrimination. That privilege is not to be taken as
lost merely by joining a disciplined service. And it applies to disciplinary
as well as criminal offences.

Where a superior is conducting an investigation into
disciplinary offences of which a subordinate is suspected, where the
subordinate refuses to answer the superiors questions asserting a privilege
against self-incrimination and where the superior responds by ordering the
subordinate to answer, then whether that order is a lawful one depends on
whether the privilege asserted exists.

And that in turn depends on whether it has been abrogated by
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the statutory regime governing the disciplined service concerned. Such
abrogation may be either express or by necessary implication.

What I have set out in the preceding three paragraphs
represents the general principles which constitute what I consider to be the
correct approach to the issue at hand.

As I understand the decision of the High Court of Australia in
Police Service Board v. Morris (1985) 156 CLR 397, those were the
principles acted upon by Gibbs CJ and Wilson, Dawson and Brennan J J
being four of the five members of that Court hearing that appeal.

I turn now to the statutory regime governing the Hong Kong
Police Force. It is constituted by the Ordinance and the Regulations.

There are no words in such legislation which single out the
privilege against self-incrimination and say in terms that the same is
abrogated. So there is no express abrogation.

Is there any abrogation by necessary implication?
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In Police Service Board v. Morris (supra) two police officers
in Victoria were convicted of the disciplinary offence of disobeying a
lawful order by refusing to answer questions when ordered to do so by a
superior officer who was conducting an investigation into the performance
of their duties. They challenged their convictions on the ground that their
refusal to answer was justified by a privilege against self-incrimination.

Murphy J took the view which he expressed thus at p.407:
The privilege against self-incrimination was not excluded but it was not
applicable.

Gibbs CJ and Wilson, Dawson and Brennan J J however held
that the privilege against self-incrimination extended to disciplinary
offences but that the statutory regime governing the police in Victoria had
abrogated the same by necessary implication.

As I have already indicated, their Honours appear to me to
have proceeded on the general principles which I consider to be the ones
which we have to apply here. And the statutory regime in Victoria
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appears to me to be of a nature very similar to the one with which we are
concerned. In those circumstances, the whole of their Honours approach
in that case is instructive in this one. It accords due regard to reality
while remaining within a framework of principle. That is what I propose
to do.

Mr Bleach for the appellant makes the point that the officers
in Police Service Board v. Morris (supra) were asked about their conduct
while on duty. That is true.

And I accept that the courts should be even slower to infer
that an officers privilege against self-incrimination has been abrogated in
regard to his conduct while off duty than they should be to infer that it has
been abrogated in regard to his conduct while on duty. That is because a
disciplined service, and indeed any organization, naturally has a more
immediate interest in the conduct of its members while they are on duty
than while they are off duty.

That is to be placed in the scales in favour of the appellants
argument against abrogation.
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In the Hong Kong Police Force, the offences against
discipline are those set out in reg. 3(2) of the Regulations, namely:

(a) absence from duty without leave or good cause;
(b) sleeping on duty;
(c) conduct to the prejudice of good order and discipline;
(d) cowardice in the performance of duty;
(e) contravention of police regulations, or any police orders,
whether written or verbal;
(f) insubordination;
(g) being unfit for duty through intoxication;
(h) neglect of duty or orders;
(i) malingering;
(j) making a statement which is false in a material particular in
the course of his duty or in connexion with the discharge by
the police force of any of its duties or functions;
(k) unlawful or unnecessary exercise of authority resulting in loss
or injury to any other person or to the Government;
(l) wilful destruction or negligent loss of or injury to
Government property;
(m) conduct calculated to bring the public service into disrepute.

Generally those offences against discipline are ones
committed while on duty. But there are some which can be committed
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while off duty. Take for example the one covered by item (m). By
virtue of s.21 of the Ordinance every police officer is deemed to be
always on duty when required to act as such. But even while wholly at
leisure and undoubtedly off duty a police officers conduct can
nevertheless fall short of the minimum standard of conduct required at all
times of police officers if the public service is to be spared from being
brought into disrepute.

Item (j) is another example. It will be noticed that it
expressly lays down two situations in which a police officer commits an
offence against discipline by making a statement which is false in a
material particular. The first is where he does so in the course of his
duty. The second is where he does so in connection with the discharge
by the police force of any of its duties or functions. And those two
situations are in the alternative to each other.

The Court is concerned with whether it is a necessary
implication of the statutory regime governing the police here that its
officers must answer when questioned by a superior about any suspected
disciplinary misconduct of theirs. To distinguish for that purpose
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between suspected misconduct on the basis of whether the same was while
on duty or while off duty would be artificial, unworkable and contrary to
the scheme of reg. 3(2).

If officers have to answer in those circumstances, then they
would have to do so even in regard to acts or omissions while off duty.
That is the degree of the intrusion.

As to what is desirable, there is something to be said, in the
interests of the individual officers of a disciplined service, for preserving in
its entirety their privilege against self-incrimination. On the other hand,
there is also something to be said, in the interests of society, for wholly or
at least partially abrogating such privilege with a view to achieving a
disciplined service of the highest probity and reputation reasonably
possible. The constitutional climate of a free society under the rule of
law is capable of sustaining either of those courses as chosen by the
legislature and those lawfully exercising powers of delegated legislation.
What is required is that the choice be made plainly if abrogation is chosen.

All of that being so, I do not think that the answer is to be
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found in the mere fact that we are concerned with a disciplined service.
Of course all such services, particularly a police force, depend heavily on
the confidence which its officers are able to repose in each other and on
the confidence which the public is able to repose in all of them collectively.
That is the beginning of a necessary implication of abrogation of the kind
here in question. But it does not end there. One must proceed to look
closely at the disciplined service concerned and the terms of the statutory
regime governing it.

Section 30 also points in the direction of such abrogation by
requiring all police officers to obey lawful orders. But it may not be
conclusive on its own since it does not say when an order is lawful and
when it is not.

It is appropriate to look at the whole of the statutory regime
governing the Hong Kong Police Force, including so much of it as is
constituted by regulations.

Thus in Police Service Board v. Morris (supra) every
member of the court considered not only the Police Regulation Act 1958
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but also the Police Regulations 1957.

And as to the position in the United Kingdom, it is instructive
to note that reg. 7(a) of the Police (Discipline) Regulations 1977 there
contains an express provision preserving the privilege against
self-incrimination in a disciplinary investigation.

Where the statutory regime consists of subordinate legislation
as well as primary legislation, the subordinate legislation may, as in the
United Kingdom, demonstrate that such privilege remains. Or it may
combine with the primary legislation to demonstrate that such privilege has
been abrogated. And that is what I think the Regulations do in Hong
Kong.

Plainly reg. 3(2) lays down an intra vires scheme which is
crucial to the maintenance of discipline within the Hong Kong Police
Force. And in my view that scheme would break down unless the
position were as follows:

(1) Where a superior acting in the course of his duty questions a
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subordinate about disciplinary misconduct of which the
subordinate is suspected, then the subordinate has to answer
whether the acts or omissions concerned were while on duty
or while off duty.

(2) If he refuses to answer, then the superior may order that he
do answer. Such order may be express in that the word
order or any equivalent such as command is used. Or it
may be implied from the superiors persistence and insistence.
Whether express or implied, such order would be a lawful
order: one which s.30 of the Ordinance requires the
subordinate to obey.

(3) And if he maintains his refusal even in the face of such an
order, then his refusal would be in disobedience of a lawful
order and of itself an offence against discipline, chargeable
under reg. 3(2)(c) or reg. 3(2)(h) of the Regulations, for
which offence his removal from the force is a possible
penalty.

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In my judgment that is the law. For, as I have indicated, the
scheme crucial to the maintenance of discipline within the Hong Kong
Police Force would break down if the position were otherwise. And it is
impossible to attribute to the statutory regime in question the effect, on the
one hand, of setting up such a scheme and, on the other hand, of
preserving within that scheme the seeds of its own destruction, which
destruction would leave a crippling void in the regime itself. It follows
therefore that it is a necessary implication of the statutory regime in
question that it has abrogated so much of the privilege against
self-incrimination as would justify the subordinates silence in the
aforementioned circumstances.

All that remains is for me to explain why I say that the
scheme would break down in the absence of such abrogation.

Again I need only give a few examples. Let us start with the
disciplinary offence under reg. 3(2)(a): absence from duty without leave
or good cause. Suppose an officer is absent from duty without leave,
advances something as a good cause and is questioned by a superior
seeking to determine if that cause is really a good one. Is he to be able to
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say: I will not answer because my answers may show that the cause was
not good after all. That would incriminate me of a disciplinary offence.
And you cannot draw any adverse inference against me from my silence
because such silence is my legal right.?

Next let us take the disciplinary offence of cowardice in the
performance of duty under reg. 3(2)(d). If a superior is questioning a
subordinate about what he did or did not do in a situation involving some
personal danger, is the subordinate entitled to refuse to answer because his
answers may, on a possible view of them, show that his conduct had been
cowardly?

What about the disciplinary offence of malingering under
reg. 3(2)(i)? I would have thought that a lot of questions may well have
to be asked and answered if any suspicion of malingering were to be
cleared up.

And even more questions and answers might be needed if the
suspicion were that a statement were false in a reg. 3(2)(j) situation.

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Whether a loss was negligent in a reg. 3(2)(k) situation is
another example here. That might need a lot of probing.
Those are but some examples. They are enough. Under
the reg. 3(2) scheme chaos would ensue if subordinates were legally
entitled to refuse to answer their superiors questions of that nature.

The Court is not concerned with whether the privilege in
question could live with some other scheme which the legislature might
have created. The question is whether that privilege can live with the
scheme which the legislature has created. Plainly it cannot. And
therefore it has gone: abrogated by necessary implication.

Finally I wish to make this clear. The mere fact that the
conduct about which he is being questioned would or might constitute a
criminal as well as disciplinary offence does not entitle a subordinate to
refuse to answer. As to the position if criminal proceedings were to
follow and an attempt were made to introduce his answers in evidence as
admissions by him, I am wholly in agreement with my Lord the Chief
J ustice that it would seem that the protection of the police officer would
then lie in the inadmissibility in criminal proceedings of admissions elicited
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involuntarily rather than in the privilege against self-incrimination.

I too would dismiss this appeal.


Mr J ustice Power NPJ :

I am in agreement with all that has fallen from the Chief
J ustice and with the orders he proposes.


Sir Daryl Dawson NPJ :

I agree with the judgment of the Chief J ustice and with the
orders which he proposes.


Chief J ustice Li:

The Court being unanimous, this appeal is dismissed with
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costs.

Mr J ohn Bleach SC, leading Mr S H Kwok (instructed by M/S Ricky Ma
& Co. assigned by Legal Aid Department) for the Appellant

Mr Robert Tang SC, leading Mr J ohnny Mok (instructed by Department of
J ustice) for the Respondent