Wong Chun Wai Pett v. Commissioner of Police

HCAL 2987/2018

[2020] HKCFI 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2987 OF 2018

___________________

___________________

___________________

J U D G M E N T

___________________

A.     Introduction

1.By a Notice of Application for Leave to Apply for Judicial Review filed on 27 December 2018 (“Form 86”), the applicant seeks an order of certiorari to quash the then Deputy Commissioner of Police (Management) Ms Chiu Wai-yin (“DCP MAN”)’s decision on 6 September 2018 dismissing the applicant’s appeal and confirming the punishment of “Reduction in Rank from Sergeant to Police Constable” awarded against the applicant (the “Decision”). 

2.Leave to apply for judicial review, with an extension of time, was granted by this court on 23 April 2019.

3.The respondent’s submission is that on the facts and the circumstances of this case, the grounds of challenge in this application for judicial review are without merits, and ought to be dismissed with costs to the respondent.  In gist, this is a challenge against disciplinary sentence only (not disciplinary conviction), and the court should pay deference to the expertise of the Commissioner of Police (the “Commissioner”) in upholding the discipline of Police Force and should not intervene since the sentence is not so out of proportion to the offence in question, as to be perverse or unduly oppressive.

B.      Background

4.At the material times, the applicant was attached to Special Duty Squad 3 of the Yau Tsim District of the Police in the rank of a Sergeant supervising a team of eight frontline Police officers (the “Team”). The Team was responsible for combating vice activities within the Yau Tsim District, which often involved covert surveillance, decoy operations and overt enforcement actions.  The applicant’s post was well recognised as a very sensitive and high risk post exposed to great temptation and malicious allegation.

5.A disciplinary review was initiated against the applicant’s Team following a criminal investigation of the applicant regarding an allegation of “Misconduct in Public Office”.  Upon investigation of the applicant’s Police notebook, it was revealed that he had: –

(1)     failed to record the times of reporting off duty on 27, 28 and 29 May 2014;

(2)     failed to record the times of reporting on duty on 28 and 29 May 2014; and

(3)     left blank spaces within the printed lines in his Police notebook on seven occasions between 13 May 2014 and 24 May 2014.

6.On 30 December 2016, the applicant was charged with the following six disciplinary charges (collectively “All Disciplinary Charges”): –

(1)     One count of “Neglect of Duty” in relation to the act of leaving blank spaces within the printed lines of his Police notebook on seven occasions, contrary to regulation 3(2)(h) of the Police (Discipline) Regulations, Cap.232A (the “Regulations”) (“Disciplinary Charge”); and

(2)     Five counts of “Contravention of Police Orders” in relation to the act of failing to record the times of reporting off duty or on duty, contrary to regulation 3(2)(e) of the Regulations (“Other Charges”).

7.In a disciplinary hearing before the Adjudicating Officer (“AO”), the applicant pleaded guilty to All Disciplinary Charges.  On 9 October 2017, he was found guilty as charged, and was awarded punishments of “Severe Reprimand” for the Disciplinary Charge, “Reprimand” for each of the Other Charges. 

8.Pursuant to regulation 14(1) of the Regulations, the findings and awards of All Disciplinary Charges were confirmed by the Senior Police Officer (“SPO”) on 23 October 2017.  Additionally, the AO’s recommendation of issuing a “Warning for Dismissal (General)” against the applicant was supported by the SPO, to be valid for one year.

9.On review under regulation 14(5) and (6) of the Regulations, on 24 November 2017, the Force Discipline Officer (“FDO”) substituted the awards to “Reduction in Rank from Sergeant to Police Constable” for the Disciplinary Charge and “Severe Reprimand” for each of the Other Charges.  The “Warning for Dismissal (General)” was also revised to be valid for three years.

10.The applicant lodged an appeal solely against the award of “Reduction in Rank from Sergeant to Police Constable” for the Disciplinary Charge.  On appeal, DCP MAN made the impugned Decision confirming the FDO’s award for the Disciplinary Charge.

C.      Grounds of Judicial Review

11.In the Form 86, the applicant challenges the Decision based on the following grounds: –

(1)     Ground 1 – Irrelevant considerations regarding the applicant’s interdiction record, habitual non-compliance and integrity were taken into account.

(2)     Ground 2 – Relevant considerations concerning the applicant’s guilty plea and his explanation of administrative convenience in following lawful orders were not taken into account.

(3)     Ground 3 – The Decision is unreasonable, oppressive and disproportional to the gravity of the offences charged against the applicant.

D.      Relevant Legal Principles

12.As submitted by the Commissioner, it is well established that the role of the court in a judicial review application is to exercise a supervisory jurisdiction, and it does not sit as an appellate court from the decision of the decision-maker.  In particular, the court should not lightly interfere with the findings of a professional tribunal, and will only intervene where the tribunal’s discretionary powers had so exceeded the normal limits as to justify a finding that there was an error of law: Chan Kam Choi v Commissioner of Correctional Services & Another [2016] 4 HKLRD 565 at §26; and Au Yeung Kwok Hing v The Attorney General for and on behalf of the Commissioner of Police, unreported, CACV 205/1994, 7 February 1995 at §31.

13.In the context of a judicial review application against disciplinary findings, the above holds true in relation to a decision on conviction as well as a decision on sentencing.  The court ought to remain cautious and very slow to interfere with orders of penalties passed by the professional disciplinary body, who are best placed to weigh the seriousness of the professional misconduct in question: Lau Koon Leung v Medical Council of Hong Kong [2006] 3 HKLRD 225 at §§69-70.  There is no reason why it should not be applied to Police disciplinary proceedings.  Indeed, unless the punishment or sentence is so out of proportion to the offence in question, as to be perverse or unduly oppressive, the court should not intervene: Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679 at §50 per DHCJ Cheung (as Cheung PJ then was).

14.As pertinently recognised by Nazareth VP in the case of Au Yeung Kwok Hing (Supra) at §§50-51 (similar view was expressed by Bokhary JA (as he then was) in the same Judgment at §30): –

“50. It is helpful to have regard to some of the considerations which have led to the well-established nature of the court’s limited supervisory jurisdiction in judicial review. It is to the Commissioner and his officers that the determination and punishment of disciplinary charges have been entrusted by the legislation, and not the courts. And in discharging that function, the former are entitled, and must be presumed to have been expected, if not required, to bring to bear their knowledge and experience of the requirements and operations of the Police Force; and likewise to assess awards in the light shed by the nature and circumstances of the misconduct upon the desirability and appropriateness of the offending officer remaining in the Force.

51. It is true that the award is severe. That does not make it irrational. It was possible for the Commissioner to have imposed an even more severe award, i.e. dismissal or compulsory retirement with reduced benefits. That the enquiring and confirming officers took a much more lenient view of Charge (B), in the sense of the much less severe awards they made, likewise does not in my view make the ultimate award irrational.” (emphasis added)

15.In considering the appropriateness or proportionality of any sentence, the professional disciplinary body must be accorded with the appropriate measure of respect in deciding what it considered necessary at the time to maintain professional standards.  This broad margin of discretion is educated by knowledge of that profession and the real need to ensure that those in that profession maintain high standards of discipline: Cheung Koon Kit v Commissioner of Correctional Services of HKSAR, HCAL 108/2003, unreported, 28 July 2004 at §38; and Lau Koon Leung (Supra) at §§70-71 (by Yuen JA, with similar view expressed by Lam J (as Lam VP then was) at §§78-79).

16.It is also well established that it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense: Chan Kam Choi (Supra) at §28. 

E.     Discussion

E1.    Ground 1 – Any irrelevant factor was not taken into account

Criminal investigation was expressly disregarded

17.Reference to the applicant’s interdiction record is a factual account of records concerning the applicant’s service with the Police.  As a matter of fact, the FDO and DCP MAN had both respectively taken note to disregard any irrelevant information to the disciplinary charges, in accordance with the “Force Disciplinary Manual on the Consideration in Making Awards”: –

“In some cases, the disciplinary charges may be the result of a criminal investigation against a defaulter, or a disciplinary review following his/her acquittal in a criminal court. In making an award of these situations, care must be taken to restrict the findings to the disciplinary charges actually heard, and to avoid giving the impression that the decision has been influenced by a suspicion regarding a criminal offence which has not been the subject of a charge.” (emphasis added)

18.In fact, when the applicant made representations to the FDO on 21 November 2017 in respect of the FDO’s proposed increase of the awards, he acknowledged that the FDO had “considered disregarding the information not related to [his] disciplinary offences in order to reach an impartial verdict”.  It is also clear from the FDO’s deliberation that the interdiction and the criminal investigation were not factors taken into account.  The factors considered were “serious nature and circumstances of the case, D’s guilty plea, clear disciplinary record, record of service, mitigations and D’s representations”. 

19.I agree that the alleged problematic sentences (ie “clear disciplinary record but one interdiction record” and “it was inconceivable why D would leave the notebook…blank for a few days”) were facts and fair observation.  In fact, it was acknowledged in the same paragraph that “there is no evidence submitted in the hearing showing any malicious intention of D’s omissions”.  In any event they are contained in the note from IP Discipline 2 to SP Discipline (Ag) who supported the recommendation to the FDO.  In the reply by the FDO to SP Discipline (Ag), the FDO expressly stated that he “note[d] that the instant disciplinary case was originated from a criminal investigation against D.  However, [he had] reminded [himself] the importance of fairness and to disregard the information unrelated to the disciplinary charges against D”.

20.In DCP MAN’s deliberation, she referred to the deliberation of the FDO which contains a reminder to disregard any irrelevant information to the disciplinary charges in view of the fact that the proceedings were originated from a criminal investigation.  DCP MAN found no irrational or prejudicial factor in the FDO’s decision.  It follows that DCP MAN herself must have disregarded the irrelevant consideration in relation to the criminal investigation against the applicant.

21.For the applicant to contend that DCP MAN or the FDO had taken into account the criminal proceedings in making the Decision, he should adduce cogent evidence to establish that such association was indeed made; much more than largely relying on the use of the word “but” (see: paragraph 19 above) without proper regard to the overall context of the Decision. 

Repeated behaviour within a certain timeframe demonstrates a habit

22.Insofar as the complaint about the reference to “habitual non-compliance” is concerned, it must be considered against the background of the finding.  Upon investigation, the applicant was found to have left blank spaces within the printed lines in his Police notebook on seven out of nine working days.  In fact, I agree the applicant having served with the Police for over 16 years at the material times is even more a reason for him to not have had such reoccurring non-compliance and he should have recognised the possible consequences of doing so. 

Integrity is a foremost required quality in Police officers

23.As a Police officer, the applicant is entrusted with extensive law enforcement power, and the applicant is expected to maintain a high standard of personal discipline and integrity.  Proper notebook recording is required pursuant to Chapter 53-01 of the Police General Order (“PGO”) and Chapter 53-03 of the Force Procedural Manual (“FPM”).  This is regardless of whether the applicant’s Police notebook may be read by his subordinates or not, and whether it may be regularly inspected by his supervisor.  It is in the applicant’s own interest as well as the interest of justice to ensure proper notebook recording and that such notes are as detailed as may be required.

24.Significantly, the importance of proper notebook recording is emphasised by all Police officers involved in these proceedings, including the FDO and DCP MAN, and indeed I agree this is fundamental for all Police officers.

25.The above is particularly significant since, at the material times, the applicant was entrusted with the responsibility to lead the Team of eight frontline Police officers to conduct operations in plainclothes, including covert surveillance and decoy operations.  The Team’s operations combated vice activities within the Yau Tsim District, which often exposed them to great temptations and malicious allegations.  In assuming a supervisory role in the Team, it was expected that the applicant would be a good role model for his subordinates.

26.The applicant complains that the misconduct in question in this matter would not or could not touch on the applicant’s “integrity”, and this itself constitutes a substantial flaw in the reasoning process.

27.I do not agree with the applicant’s submissions. As submitted by the Commissioner, in the context of considering appropriate punishment for misconduct by Police officers, lack of integrity does not relate solely to dishonesty on the part of the officer.

28.In Wong Chi Hung v Commissioner of Police, unreported, HCAL 27/2006, 18 February 2008, the applicant, a senior police constable, was convicted of making persistent telephone calls and making offensive (obscene) telephone calls and was fined.  Subsequently, he faced Police disciplinary action and was awarded compulsory retirement with deferred benefits.  One of the grounds of review was that the sentence was Wednesbury unreasonable.  He complained that the offenses did not involve any dishonesty or violence and urged that there was no basis for characterising the offenses as serious nor for doubting his integrity in the discharge of his police duties.  Lam J (as he then was) rejected those submissions and stated in paragraph 19 that “the integrity of a police officer must depend on his ability to exercise self discipline and self restraint”.  It is clear that even though there was no dishonesty involved, the court accepted that there was a breach of integrity.  The court stated that Police officers should possess the right qualities in terms of “judgment, common sense, intelligence, self discipline, self restraint, sense of responsibility, sense of reasonableness and proportion…” (at paragraph 18).

29.Moreover, it is to be noted that it was only the FDO who commented on the effect of the transgression on the applicant’s integrity.  The Decision challenged in this Judicial Review is that of DCP MAN (see: paragraph 1 above).

30.In her Deliberation dated 6 September 2018, it is clear that DPC MAN did not base the applicant’s sentence on his lack of integrity.  Rather, DCP MAN stated: “I must stress that proper notebook recording is a requirement of paramount importance to every police officer and contravention of such would not be condoned by the Force.  The Appellant’s misconducts were totally unacceptable.  Such misdeeds were serious in nature which had gravely undermined the good order and discipline of the Force.” (paragraph 8); “the offenses in the instant case are aggravated by its repeated occurrence and the fact that the Appellant stood in a position of supervisory responsibility for junior officers. … Worse still, he was serving in a highly sensitive team leading frontline officers in plainclothes.  As a supervisory officer holding such a sensitive post, he ought to know the utmost importance of proper notebook recording and comply with it.” (paragraph 9); “taking all the above mentioned into account, I do not have the confidence that the appellant could be a reliable Sergeant.” (Paragraph 10).

31.In the circumstances, this ground of complaint is not made out by the applicant.

E2.    Ground 2 – All relevant factors were taken into account

Applicant’s guilty plea was taken into account

32.As submitted by the Commissioner, the applicant’s complaint that his guilty plea had not been taken into account is unfounded, and is clearly contradicted by the evidence.  The relevant material documents demonstrate that the applicant’s guilty plea to the Disciplinary Charge had indeed been taken into account.  In particular, the internal file minute M.12 that was addressed to DCP MAN stated that the applicant had pleaded guilty to the Disciplinary Charge, and such remark was in turn noted by DCP MAN in the internal file minute M.13 which recorded the Decision.

33.Further, I agree it is not open for the applicant to argue that his guilty plea was not taken into account simply based on the severity of the Decision.  In fact, in the circumstances of the present case, an even more severe award could have been imposed on the applicant: regulation 30 and the Schedule of the Regulations.

Purported administrative convenience is not a lawful order

34.The applicant’s contention that the Disciplinary Charge stemmed from orders by his supervisor was first raised on Appeal when making the relevant submissions.  The applicant had made no such claim in his statement taken during the disciplinary investigation, his mitigation representations submitted to the AO or his written representations submitted to the FDO.  Notwithstanding the above and even in the absence of any evidence, DCP MAN did in fact take such factor into account as can be seen from paragraph 10 of her Deliberation dated 6 September 2018.

35.In any event, such verbal order (if true) is inconsistent with the mandatory requirements in the PGO and/or the FPM, and can be regarded as unlawfully made.  Every Police officer, including the applicant, would have acquired knowledge of and familiarised themselves with the PGO and the FPM, including the importance of proper notebook recording.  Given the applicant’s highly sensitive role at the material times, I agree proper notebook recording would have been extremely important to explain the reasons behind the Team’s covert surveillance, decoy operations and overt enforcement actions, as well as preventing any false or malicious accusations against him. 

36.As submitted by the Commissioner, it is not proper justification for the applicant, who has substantial experience as a Police officer, to follow any unlawful verbal order of his superior officer in leaving blank lines. 

E3.    Ground 3 – the Decision was not unreasonable

37.Even where the sentence is not lenient by comparison with other cases, that in itself does not warrant interference by the court, see: Lau Koon Leung (Supra) at §81, and a severe award does not make it irrational: Au Yeung Kwok Hing (Supra) at §51.  In any event, I agree the Decision is not severe beyond any rational relationship to the applicant’s offence and the circumstances of this case. 

38.The applicant pleaded guilty to the Disciplinary Charge, and was found guilty as charged.  Pursuant to regulation 15(2) of the Regulations, upon taking into account all relevant factors, DCP MAN confirmed the finding and the award imposed on the applicant.  There was no procedural error in arriving at the Decision, which was within the range of disciplinary awards that could have been awarded against the applicant.  In arriving at the Decision, DCP MAN noted that the award was a stern one for cases of similar offences.  However, each case is to be considered on its own merits, and it was agreed that in the circumstances of this present case, the Decision was appropriate. 

39.At the material times, the applicant had been in the service of the Police Force for some 16 years (including 3 years of service as a Sergeant), and was in a supervisory and highly sensitive role.  Given the applicant’s considerable experience, especially bearing in mind the nature of his role at the time and the risk he was exposed to, it is all the more reason for his conduct of leaving blank lines in his Police notebook on seven out of nine working days to be taken as being very serious.  The applicant was “expected to set a good role model for his subordinates but he failed to perform the fundamental duty of a police officer and failed himself in regard to his professionalism”.  The applicant’s “repeated breaches of discipline unveiled his casual attitude and lack of professionalism”.  “Such misdeeds were serious in nature which had gravely undermined the good order and discipline of the Force”.  Against the above background, I agree DCP MAN (and the FDO) was entitled to take a grave view of the Disciplinary Charge, and she (and the FDO) found that there was no confidence that the applicant could be a reliable Sergeant.

40.The applicant’s contention that the severity of the Decision was unreasonable is essentially a complaint about the weight DCP MAN/the FDO had placed on the relevant factors that were considered.  However, as pointed out at paragraph 16 above, it is entirely for the decision maker to attribute to the relevant considerations such weight as he or she thinks fit, and the court will not interfere unless he or she has acted unreasonably in the Wednesbury sense.  On the basis of the matters set out at paragraph 39 above, I agree the Decision cannot be said to be an unreasonable conclusion.

F.     Conclusion

41.For all the reasons stated above, I agree the grounds of challenge against the Decision have no merit.  Accordingly, I dismiss this application for judiciary review brought by the applicant.

42.At the hearing, the parties agreed that costs should follow the event with a certificate for 2 counsel.  Accordingly, I order that the costs of these proceedings be paid by the applicant to the respondent, such costs to be taxed if not agreed with a certificate for 2 counsel.

43.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr Clive Grossman, SC leading Mr Lawton Leung, instructed by Messrs Wat & Co., for the applicant

Mr William Liu, Deputy Law Officer (Ag) and Ms Vivian Kao, Senior Government Counsel of the Department of Justice, for the respondent