Ng Kam Chuen v. The Commissioner of Police

CACV000241/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 241
(Civil)

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Coram: Hon Nazareth, V.-P., Liu and Leong, JJ.A.

Date of Hearing: 6 February 1998

Date of Judgment: 6 February 1998

Date of Handing down Reasons: 17 February 1998

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REASONS FOR JUDGMENT

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Nazareth, V.-P.:

1. Having heard counsel, we allowed this appeal and now give our reasons.

2. The appeal was against that portion of the judgment of Keith J refusing the appellant leave to apply for judicial review against part of the decisions and in respect of grounds for which he sought leave.

3. The matter arose in the following way. The appellant is a police officer. He got himself very seriously indebted. As a result disciplinary proceedings were taken against him under the Police (Discipline) Regulations. These were in respect of two charges. We are not concerned here with the first charge, i.e. charge A. The charge with which this appeal is concerned is charge B which was spelt out in the following terms:

"Charge:	Contravention of Police Orders Contrary to Regulation 3(2)(e) of the Police (Discipline) Regulation, Cap. 232.
Particulars:	PC 21683, NG Kam-chuen, of the Royal Hong Kong Police Force, you are charged that in the period between 6 Feb 1996 to 4 Sept 1996 in Hong Kong, you did fail to be prudent in your financial affairs whereby your efficiency as a police officer was impaired, contrary to Police General Orders No. 6-01 para (8)."

The disciplinary proceedings were conducted by the Force Disciplinary Tribunal and on 31 January 1997 the appellant was found guilty of the charge and awarded the sentence of compulsory resignation. In accordance with the Police (Disciplinary) Regulations, the case was then forwarded to the Force Discipline Officer for review. On 12 May 1997 the Force Discipline Officer informed the appellant that the finding of guilty was confirmed, and invited him to show cause why the sentence should not be increased. The appellant made representations, and having considered them, the Force Discipline Officer on 21 May 1997 informed the appellant that the sentence was increased to dismissal. The appellant then submitted a written appeal against both the finding of guilty and the award of dismissal to the Commissioner of Police. On 7 July 1997 the Commissioner of Police dismissed the appeal. No reasons were given. On 13 October 1997 the appellant through his solicitors lodged a notice of application for leave to apply for judicial review in the Court of First Instance. The application was for leave in respect of all judgments, orders and decisions of the Tribunals, the Commissioner of Police and the police officers concerned, and numerous grounds were specified. The application came before Keith J in November 1997. The appellant was there represented by Ms Margaret Ng, as he was before this Court. Keith J refused the application in respect of the finding of guilt and the subsequent confirmation of that finding. However, he gave leave in respect of the decisions to dismiss the appellant from the Police Force and the decision to require his retirement. He gave leave for those decisions to be challenged on two grounds only:

"(i) that the Commissioner should have given reasons for dismissing the Applicant's appeal; and (ii) that the decisions (a) to require the [Appellant] to retire from the police force, and (b) to dismiss him from the police force, were Wednesbury unreasonable."

4. Ms Ng takes and relies upon only one point, i.e. the construction of General Police Order 6-01(8).

5. That order is in the following terms:

"A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment from whatever cause is regarded as a circumstance which impairs the efficiency of an officer."

6. Before Keith J, as before this Court, the question was how the impairment of efficiency as a police officer has to be proved. Keith J said this:

"Impairment of a police officer's efficiency as a result to his failure to be prudent in his financial affairs can be proved in a number of ways. A literal reading of GPO 6-01(8) permits it to be proved by proof of serious pecuniary embarrassment however caused. On that construction, serious pecuniary embarrassment is expressively treated as a fact which impairs a police officer's efficiency. That was how the adjudicating officer construed GPO 6-01(8).

Ms. Margaret Ng for the Applicant contended that that is not the proper construction of GPO 6-01(8). There may be many cases in which a police officer's efficiency would not in fact be impaired by serious pecuniary embarrassment. It cannot have been intended. therefore, for impairment of a police officer's efficiency to be conclusively and irrebuttably presumed, simply because the officer had suffered serious pecuniary embarrassment. To construe GPO 6-01(8) in that way, she said, would result in police officers facing disciplinary charges even when there was no concern about their efficiency, and would undermine the sensible policy of encouraging police officers with financial problems to come forward and seek help. Accordingly, she contended that, on its proper construction, GPO 6-01(8) merely permitted serious pecuniary embarrassment to be treated in an appropriate case as a fact from which impairment of a police officer's efficiency might be inferred.

I do not think that it is arguable that GPO 6-01(8) can be construed in the way Ms. Ng suggested. Her argument involves reading the words 'is regarded' as 'may be regarded', or the word 'impairs' as 'could impair'. There is no compelling reason why the words used do not mean what they say. Serious pecuniary embarrassment inevitably causes stress, not only because of the embarrassment itself, but also because it could lead to disciplinary action. That stress is bound to have some impact on a police officer's efficiency. But since it may not be possible to prove that by direct evidence, some other means of proving it had to be found. GPO 6-01(8) does no more than permit indirect proof of the obvious when direct proof is not available. The link between serious pecuniary embarrassment and impairment of an officer's efficiency is sufficiently obvious to justify the conclusive presumption that the former results in the latter. If a police officer is convicted of contravening GPO 6-01(8) despite there being no direct evidence that his efficiency has been impaired, that is a factor which can be taken into account in the determination of the appropriate disciplinary sanction."

7. Ms Ng submits that Keith J construed GPO 6-01(8) as if it were an irrebuttable presumption whereas he should have construed it as a rebuttable presumption. She relies not merely upon the wording of that order but its operation in the context of the Police Disciplinary Regulations which can result in an officer being deprived of his livelihood and his earned pension as here in respect of 18 years' service. She does not dispute that in the particular circumstances of this case the appellant was in a situation of serious pecuniary embarrassment, but she stresses that from beginning to end, the impairment of the appellant's efficiency as an officer was never addressed.

8. It can be seen that no evidence of impairment was introduced. Indeed such evidence as there is points to the appellant's efficiency not having been impaired. That is by no means in the nature of an oversight. The Tribunal and officers concerned proceeded upon the basis that serious pecuniary embarrassment was the equivalent of impairment of efficiency. Indeed, the adjudication officer as the Force Disciplinary Tribunal in January 1997 in his "Judgment" on 31 January stated that under GPO 6-01(8) pecuniary embarrassment "must be deemed to have impaired the efficiency of the officer concerned as a police officer" and that by the second sentence of that paragraph (i.e. 6-0118) the Commissioner of Police declares that serious pecuniary embarrassment is regarded as a circumstance which impairs the efficiency of the officer so that if it is proved the officer has been imprudent in his financial affairs and as a result suffers serious pecuniary embarrassment, the officer can be found guilty of contravening GPO 6-01(8).

9. Having regard to the conclusion I have reached and that it would have the result of the matter being reviewed upon a adversarial basis, I say no more than this. I have carefully studied GPO 6-01(8) both itself and in the context of the Police (Disciplinary) Regulations. Notwithstanding Keith J's cogent and as usual very clearly stated reasons, it seems to me that the construction is "arguable" in the requisite sense relevant. Although made under statutory power, i.e. s. 46 of the Police Force Ordinance (Cap 232), arguably Police General Orders do not have to be construed in entirely the same way that legislation or even penal legislation is construed. The disciplinary offence charged arises under regulation 3 of the Police (Disciplinary) Regulations which provides in paragraph (1) that any ... police officer who commits any disciplinary offence specified in paragraph (2) may be punished in accordance with the Regulations; and in paragraph (2) that the offences against discipline are - ... (e) contravention of Police Regulations or any police orders, whether written or verbal. It can thus be seen that the extremely severe penalty of loss of livelihood and even more loss of earned pension which could be something in the order of a police officer's life savings, could be attracted by orders relating to relatively trivial matters. Apart from that, the offence is contravention of a police order. The order here is that a police officer shall be prudent in his financial affairs. To argue that it is not financial imprudence but impaired efficiency that ought to be avoided is facile. Yet it seems unarguable that even serious pecuniary embarrassment need not necessarily impair the efficiency of an officer. The lack of clarity in this provision, operated in this instance to such devastatingly penal effect, goes even further. Apparently it is serious pecuniary embarrassment that is seen to be the mischief targeted because it impairs efficiency. Yet it is to be merely regarded as a circumstance which impairs efficiency. If that is to be the unequivocal equivalent of efficiency impaired to a significant degree (it could hardly be impairment to any lesser extent) should not that be unequivocally stated? Arguably, delegated powers to make orders have to be exercised in the same reasonable way that other delegated administrative and legislative powers are required to be exercised. It must follow that the reasonableness of a provision of such penal potential that deems serious pecuniary embarrassment to impair an officer's efficiency and likewise a construction to that effect, is plainly arguable.

10. I have used for convenience the expression "arguable" to reflect the relevant criterion upon which leave to apply for judicial review is granted, which in fact is not quite so high as that expression suggests. That criterion is conveniently reproduced in the Supreme Court Practice Vol. 1 p 865 para 53/1-14/30 in the following way:

"In R. v. Secretary of State for the Home Department, ex p. Rukshanda Begum [1990] COD 107, the Court of Appeal held that the test to be applied in deciding whether to grant leave to move for judicial review is whether the judge is satisfied that there is a case fit for further investigation at a full inter partes hearing of a substantive application for judicial review."

11. For those reasons, it seemed to me that the appeal had to be allowed and leave granted for judicial review also of the finding of liability. Ms Ng helpfully condensed the many grounds upon which it was sought to rely in this respect in the original notice of appeal, to the three set out in the minute which she handed up. They seemed to me to be arguable grounds, for which leave should be given.

Liu, J.A.:

12. The Police General Order 6-01(8) is not an easy provision to apply. In a case where the General Order is sought to be invoked for inferring or for, so it was maintained, putting in place a presumption of impaired efficiency, more difficulty would arise. After all, a financial embarrassment is not per se impairment, but only "serious financial embarrassment is regarded as (not, be it noted, is) a circumstance (not, be it noted, impairment) which impairs the efficiency of an officer." (Emphasis supplied). All this comes after the preceding but unhelpful sentence in the General Order: "A police officer shall be prudent in his financial affairs". The broad spectrum of Article 14 of the Hong Kong Bill of Rights is equally complex. On these contentions, the prior decisions of the Appropriate Tribunal and the officers involved are also sought to be undermined. The appellant's application for judicial review calls for an indepth investigation at a full inter partes substantive hearing. Potential arguability has been shown. I, too, would allow the appeal. Insofar as the ruling of the judge can be understood to be confined solely to the Commissioner's determination and what it entails, I agree that it would be prudent to grant leave for questioning specifically the decisions of the Adjudicating Officer and the Senior Police Officer as proposed by the Vice-President.

Leong, J.A.:

13. The issue raised by the appellant in this appeal is whether under Police Force Order 6-01(8) proof of a police officer's serious pecuniary embarrassment gives rise to a conclusive presumption that the officer's efficiency is impaired. The Order itself is obscure regarding this. The issue should be decided in a full investigation. On the material before us, I would consider that there is an arguable case for the relief sought by the appellant. I would also allow the appeal and grant leave to apply for judicial review of the relevant decisions as proposed by my Lord, the Vice President.

Representation:

Ms Margaret Ng (M/s W.K. To & Co) for the Appellant