KAM WAI HUNG v SECRETARY FOR JUSTICE on behalf of THE COMMISSIONER OF POLICE

CACV000264/2002

CACV 264/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 264 OF 2002

(ON APPEAL FROM HCAL NO. 2546 OF 2001)

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Coram: Hon Rogers VP, Le Pichon and Ma JJA in Court

Date of Hearing: 16 January 2003

Date of Judgment: 16 January 2003

Date of Handing Down Reasons for Judgment: 13 February 2003

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an appeal against a judgment of Hartmann J given on 23 April 2002 whereby he allowed the applicant's motion, granted an order of certiorari to bring up and quash the decision of the Force Discipline Officer made on 8 March 2001 and granted an order of mandamus reinstating the applicant. At the conclusion of the hearing of this appeal, this court dismissed the appeal and the applicant's application made on the respondent's notice. We accordingly now give our reasons in writing.

Background

2.The applicant is a police constable who had joined the Police Force in 1991. Police constables are "junior police officers" as defined in the Police (Discipline) Regulations, Cap. 232 ("the Regulations"). In the period between 1993 and late 1996 the applicant had been stationed at the Sheung Shui Police Station. During that time he had obtained access to the police computer system which is called the Enhanced Command and Control Computer System ("ECACCS"). His own password for the system had lapsed and he had persuaded at least one colleague to use the system for him, the impression being given that it was for police business. It would appear that over a long period of time a large number of records of persons were searched who were relevant to a debt collection business which was run by the applicant's brother. The information obtained on the searches was then passed to the brother for use in his business.

3.As a result of the investigations the applicant was charged with 25 charges under regulations 3(2)(e) and (m) of the Regulations. These all related to unauthorised access to the computer system and to passing on the information. The charges were heard by an acting superintendent of police, who under the Regulations is referred to as the "appropriate tribunal". The applicant pleaded guilty to the charges. In terms of the disciplinary process of junior police officers (as set out in Part II of the Regulations), the process before the appropriate tribunal represents the first stage.

4.The appropriate tribunal made the following awards: in respect of the charges relating to obtaining unauthorised access to the computer system the award was severe reprimand; in respect of two charges which related to the applicant making a check on his own record the award was a caution and in respect of the charges under section 3(2)(m) which related to obtaining information about specific persons who were of interest to the debt collection business, again, the awards were severe reprimand. The appropriate tribunal also recommended that the applicant should be issued with a Warning for Dismissal valid for one year. Two days after the awards were made by the appropriate tribunal the applicant was informed that a senior police officer had confirmed the awards under regulation 14(1)(a)(i). This was the second stage of the disciplinary proceedings prescribed by the Regulations.

5.Regulation 14(4) of the Regulations provides for a third stage of disciplinary proceedings in respect of junior police officer. That requires that:

"A senior police officer acting under this regulation shall announce personally or communicate in writing to the defaulter the action taken by him, and shall forward the Defaulter Report to the Force Discipline Officer."

6.Regulation 14(5)(b) provides that:

" Within 14 days of the receipt by him of a Defaulter Report forwarded to him under paragraph (4) the Force Discipline Officer shall ... -

(a) ...

(b) in respect of any award, where he confirms or varies the finding -

(i) if no punishment was awarded, award any punishment that he is empowered to award; or

(ii) confirm the award; or

(iii) remit the award; or

(iv) subject to paragraph (6)(a) and (b), substitute any other award that the senior police officer is empowered to award."

7.Finally should be noted that under regulation 14(6)(a):

"The Force Discipline Officer shall not -

(a) substitute for any award made any greater award without first calling on the defaulter to show cause why such award should not be increased."

8.A memo dated 28 February 2001 to the applicant was sent on behalf of the Force Discipline Officer. The memo commenced by referring to the disciplinary proceedings and informed the applicant that the matter had been reviewed by the Force Discipline Officer who confirmed the guilty verdicts. The second paragraph of the memo continued that the Force Discipline Officer had been alarmed that a person who had been trained in respect of the computer system should have misused it. The memo then went on to say that it was considered that the applicant's misconduct was totally unacceptable and had fallen short of the standards of integrity and honesty which were to be expected of a police officer. The memo then continued:

"The FDO [Force Discipline Officer] has totally lost confidence in your suitability to continue to perform constabulary duties. Terminatory awards are therefore necessary for Charges (D)-(Y) in order to properly reflect the gravity and serious nature of the misconduct. Charges (A)-(C) are also serious but of a comparatively lower degree; awards at the level of Severe Reprimand are appropriate.

3. In considering the level of the terminatory awards, the FDO has taken into account your service records, guilty plea and mitigation. He is intending to increase your awards as follows:

(B)-(C) Severe Reprimand

(D)-(Y) Compulsory Retirement with Deferred Benefits

4. You are hereby invited to show cause as to why the said Award (B)-(Y) should not be so increased. Your representation in this respect is required to be submitted in writing to the FDO through SP D on or before 2001-03-07. In view of the urgency of the matter, please fax your representation to the undersigned on fax number ..."

9.The applicant duly sent submissions, which it is unnecessary to recite. It suffices to say that they constituted in effect a plea in mitigation. On 12 March 2001 a further memo was sent to the applicant on behalf of the Force Discipline Officer. The relevant part of that memo read:

"Your submission dated 2001-03-07 has been carefully considered. The FDO could not see any support in your claim of inexperience and ignorance, you being an officer with five years service at the time and had attended ECACCS training. It is true that there is no evidence to suggest any pecuniary gain or advantage. However, passing the data to your brother who is an unauthorized third party for commercial purposes is a very serious misconduct even without any personal gain. Whilst the FDO note your personal and family problems and remorse, he is of the view that the transgressions are so serious that you can no longer be trusted to continue to perform constabulary duties. Your submission contains no merit and FDO stands by his decision to increase the said awards. ..."

10.As the judge below observed regulation 14(6)(a) requires that the junior officer should be given an opportunity to show cause why his punishment should not be increased. The judge below referred to a number of decisions which went to the effect that fairness dictated that a person in a position of the junior officer should be given an opportunity to be heard. It was also fundamental that fairness should be seen to be done. In this regard I would apply a test akin to that referred in R v Gough [1993] AC 646 (a case dealing with the question of apparent bias) namely having regard to the relevant circumstances, was there a real danger that the Force Discipline Officer had already decided that the applicant's position of a police officer should be terminated, irrespective of what submissions were subsequently made?

11.The judge below considered that the memo of 28 February 2001 went beyond robust language and rebuke, which were to be expected, particularly in relation to disciplinary forces. The memo indicated that the Force Discipline Officer had already made up his mind as to the increase of the award to a "terminatory" award. In my view he was correct in this. The passage quoted above makes clear that the Force Discipline Officer considered that the only award which should have been made was a terminatory award and, furthermore, paragraph 3 would indicate that the consideration which the Force Discipline Officer was prepared to give was as to the level of the terminatory awards.

12.In this respect it may be noted that the punishments which may be awarded under regulation 30, which are set out in the schedule, include dismissal, an order to resign forthwith without salary in lieu of notice, compulsory retirement with pension, gratuity or other allowances, alternatively without such benefits or with reduced benefits. In those circumstances it is clear that the letter of 28 January 2001 would have been understood on the basis that the Force Discipline Officer had already decided that the applicant would no longer be permitted to remain in the Police Force and the matter that was under consideration was what level of terminatory award would be imposed given the range that was open to the Force Discipline Officer to impose.

13.Mr. Westbrook SC, on behalf of the Secretary for Justice for the respondent, sought to argue that the terms of the memo dated 12 March made clear that the Force Discipline Officer had considered the submissions made and had made his decision that the applicant should no longer be retained in the police force in the light of them. Whilst there is some force in the argument, the references to the contents of the applicant's letter are not, in my view, sufficient to dispel the impression that he had already made up his mind that the applicant's appointment should be terminated when the memo of 28 February was sent. There is also the point that the memo of 12 March contains the statement that "... the FDO stands by his decision to increase the said awards...". Again, one cannot read too much into what might be strong language, but it is nevertheless an unfortunate choice of words if it is sought to say that the decision to terminate had only been taken after the applicant's submissions had been received.

14.It should be emphasised that these judicial review proceedings are concerned with the decision making process. Although Mr Westbrook argued tentatively that the offences committed by the applicant were so serious that termination of the applicant's service in the Police Force was virtually inevitable, that, in my view, is not necessarily so. The seriousness of the offences cannot be doubted, but 2 other officers of senior rank had reached the conclusion that punishments of less severity than termination might be awarded. Hence it cannot be said that termination is a foregone conclusion.

15.There remained then the question that was raised by Mr Leong SC, on behalf of the applicant, as to whether an order of prohibition should be made to prevent any Force Discipline Officer from redetermining the matter of appropriate awards. The argument was put on the basis that after the Force Discipline Officer, who in the present case was a very senior officer, had reached his decision it would now be invidious for any subsequent Force Discipline Officer to reach a different conclusion.

16.Whilst, of course, there is always a danger of a subsequent tribunal being influenced by a decision arrived at by a previous tribunal, particularly where the previous tribunal has taken a strong view, as in this case, nevertheless it appears to me that it would be inappropriate for this court to grant an order for prohibition. My primary reason for so saying is that the provisions of regulations 14(4) to (7) are mandatory and once the decision of the Force Discipline Officer has been quashed, if an order for prohibition were made it would mean that the court would prevent the procedure that was mandated under the Regulations from being carried out. That would be a very serious step and, even if it were one which the court could take, it is one which, in my view, would not be warranted in this case.

Hon Le Pichon JA:

17.I agree.

Hon Ma JA:

18.I agree.

Representation:

Mr Alan Leong SC and Mr Peter Duncan, instructed by Messrs Liau, Ho & Chan, for the Applicant/Respondent

Mr Simon Westbrook SC, instructed by Department of Justice, for the Respondent/Appellant