Read the full judgment text of CACV 002744/2001 on BabelCite. This Court of Appeal judgment was delivered on 28 March 2002 before Mayo VP, Cheung JA, Yeung J.
Administrative law – judicial review – police disciplinary proceedings – principle of fairness – duty of disclosure on appeal – whether non-disclosure vitiates decision absent substantial prejudice – Police (Discipline) Regulations – Regulation 15 – Police Force Ordinance (Cap 232) – construction of PGO 6-01(8). Sergeant police officer with unmanageable debts exceeding $700,000 found guilty of disciplinary offence under PGO 6-01(8) of failing to be prudent in his financial affairs – Tribunal, Senior Police Officer and Deputy Commissioner confirmed finding; penalty of reduction to constable rank and dismissal. Held, allowing the Commissioner's appeal and dismissing the cross-appeal: (1) The principle of fairness applies to a Regulation 15 appeal to the Commissioner, and once a Commissioner accepts that adverse material should be disclosed, staffing notes forming part of the Defaulter Report must be disclosed to the appellant so he may respond – there is no rigid distinction between first-instance hearings and appeal by petition for this purpose; Kanda v. Government of Malaya, R v. Home Secretary ex p. Doody, Ridge v. Baldwin, Chief Constable of the North Wales Police v. Evans applied. (2) However, judicial review is a discretionary remedy; reconciling Kanda and Spackman with Malloch, George, Cotton and Boddington v. British Transport Police, where breach of the fairness principle causes no substantial prejudice, relief will be refused. None of the twelve alleged 'new' matters in the undisclosed memos would have changed the outcome; many could have been raised in the petition or were apparent from existing materials, and the previous suspended dismissal would have been automatically activated under Regulation 28(3). (3) On the cross-appeal, PGO 6-01(8) is not a 'two-pillar' charge requiring separate proof of both unmanageable debts and impairment of efficiency; serious pecuniary embarrassment from imprudence is itself regarded as impairing efficiency. The court disapproved Ng Kam Chuen v. Secretary for Justice to that extent. Tribunal's finding upheld. Outcome: Commissioner's appeal allowed; cross-appeal dismissed; costs nisi to Commissioner against Mr. Leung; Mr. Leung's own costs to be taxed in accordance with Legal Aid Regulations.
Legal issues: Duty of disclosure on appeal to Commissioner under Regulation 15 of the Police (Discipline) Regulations · Whether non-disclosure vitiates the decision absent substantial prejudice · Construction of PGO 6-01(8) – whether impairment of efficiency is a separate element to be proved
Outcome: Commissioner's appeal allowed; Mr. Leung's cross-appeal dismissed. The Deputy Commissioner's decision is restored as no substantial prejudice was shown.
Cited by 10 cases · Cites 2 cases