183. The unreasonableness of Colonial Regulation 62 can be demonstrated in this way: a criminal charge may involve 4 essential elements. A criminal court will not convict an accused person unless each of those 4 elements has been proved beyond reasonable doubt. The prosecution may have proved 3 of those elements up to the hilt. But, for one reason or another, the court may feel that there is an element of doubt as regards the 4th element; and so it acquits. After all, many things can happen in a criminal court. One of the commonest things is that some essential witness does not say what he told the police he was going to say, He may have been "got at" in the meantime. Or a doubt may be raised in the mind of the court as a result of clever cross- examination by a defence lawyer. Some prosecutors are more experienced than others. The judge or magistrate may have misapprehended or misapplied the law; in which case the matter will be put right by an appellate court --the result, of course, being that the conviction is quashed. But the point is: By quashing the conviction, the appellate court is not questioning the truth and the strength of the prosecution evidence in any way. It is simply saying that, because the judge misdirected the jury, or the magistrate misdirected himself, on some point of law, the accused may have lost his chance of being acquitted.
184. The fact that there are only two verdicts in an English (and Hong Kong) criminal court has, in my view, caused a great deal of confused thinking. It is said that when an accused has been found not guilty he must be presumed always to have been innocent! No one may point a finger at him. But surely this is utterly illogical. All it means is that the person's guilt, according to English (and Hong Kong) criminal law, has not been established with that degree of certainty which is called for in a criminal court, or someone connected with the judicial process has made a mistake. This must be obvious from the few examples which I have given, which are matters of everyday occurrence in the courts, as every lawyer knows.
185. I was brought up under a different system under which a jury is not forced to say “not guilty” if it feels that the high standard of proof demanded has not been reached. It may say "not proven", which means simply that the charge has not been proved with that very high degree of certainty which the law demands. Such a verdict may mean that one of the elements of the charge has not been proved beyond reasonable doubt although all the other elements have been so proved.
186. I agree that nowadays in criminal matters juries are required to bring in general verdicts. Generally speaking, they are not required to answer a number of specific questions, as they were in olden times. In other words, it is not possible, from a verdict of acquittal, to say whether (to take my example) the jury is satisfied beyond reasonable doubt as regards 3 of the essential elements but had some doubt as regards the 4th. But nowadays in Hong Kong the vast majority of criminal cases are tried by District Judges or Magistrates sitting alone without a jury. They are required to give reasons for their decisions. If they acquit, it should be perfectly obvious from those reasons where, and to what extent, the prosecution went wrong. Far from saying that no one is entitled to point a finger at the accused, it may be perfectly obvious that he is blameworthy in a number of respects.
187. Turning now to the regulations governing the procedure to be adopted by a disciplinary tribunal (annexure "H"). Obviously, such a tribunal is not a court administering criminal law. The duty of the tribunal is to investigate. It is essentially inquisitorial in character, although it is assisted by "the assisting officer" and "the friend of the officer". The tribunal does not put witnesses on oath [direction no. 13—annexure “I”]. It is not bound by the rules regulating the admissibility of evidence in a criminal court [regulation 8(4) of annexure "H"]. There is no minimum "standard of proof". The tribunal does not have to ask itself whether the matter before them is a "civil proceeding" or a "criminal matter"; and consequently they do not have to worry their heads about whether the matters on which they have to report to the Governor have been proved beyond reason- able doubt, or merely "on the balance of probabilities", which is the standard of proof in a civil action in a court of law. Regulation 8(5) [annexure "H"] reads:-
"(5) The enquiries should not be conducted with undue formality and while there is no standard practice which would be applicable in every case, it is emphasised that the Investigating Officer or Com- mittee is not exercising a legal function, but rather ascertaining the facts."
Obviously a disciplinary tribunal may well be satisfied of facts which could not be proved with that degree of certainty which is called for in a criminal trial. In other words, the tribunal is simply a body of men appointed by the Governor to find out the facts, using their common sense; and, perhaps, having available to them material which could not be produced before a criminal court. Having done so, they make their report to the Governor, stating the facts which they have found and expressing their opinion as to whether those facts amount to mis- conduct on the part of the officer [regulation 7(2) of annexure “H”].
188. From all this, it must be perfectly obvious that the "double jeopardy" rule [the rule in criminal law which says broadly that once a person has been acquitted, he may not be charged again in a criminal court with the same offence] should have no application whatsoever to disciplinary proceedings designed to assist the Governor in deciding whether or not an officer's conduct merits dismissal from the service, or indeed merits compulsory retirement in the public interest.
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