A police officer was charged with a disciplinary offense regarding “financial imprudence” resulting in the impairment of an officer’s operational efficiency. He was given the penalty of compulsory retirement. The disciplinary proceedings did not allow him an attorney at the hearing. The officer then challenged the fairness of such proceedings.
The Court of Final Appeal needed to determine whether Article 10 of the Bill of Rights (Article 14 of the ICCPR) was applicable. Article 10 required a fair hearing by an independent and impartial tribunal in the determination of any “criminal charge” or a person’s “rights and obligations in a suit at law”. In making its decisions, the CFA looked to the case law of the European Court of Human Rights regarding article 6(1) of the European Convention on Human Rights (similar to Article 10 of the Hong Kong Bill of Rights) and General Comment No. 32 of the Human Rights Committee, which concerned article 14(1) of the ICCPR.
The CFA noted that recent European case law (for example, the then-latest decision of the Strasbourg Court in Eskelinen v. Finland, (2007) 45 Eur. H.R. Rep. 43) followed the trend of extending protection of Article 6(1) of the European Convention to civil servants. However, another international source, the Human Rights Committee, in its General Comment No. 32, had expressed essentially a contrary view. Thus the CFA had to negotiate two conflicting sources of international law. The CFA chose to favor the interpretation of the Strasbourg Court, and thus adopted the Eskelinen approach and ruled in favor of the defendant. The defendant was thus entitled to Article 10’s constitutional protection regarding a fair hearing.
This case further demonstrates the great influence on Hong Kong jurisprudence of the European Convention on Human Rights.
(found in “International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 32-34, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1527076 )
