Er Hoi Kwan v. Commissioner of Police

[English Translation – 英譯本]

HCAL 628/2020

[2021] HKCFI 303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 628 OF 2020

________________

________________

Before:  Hon K Yeung J in Court

Date of Hearing:  19 January 2021

Date of Judgment:  11 February 2021

________________

JUDGMENT

________________

A.  Introduction

1.The applicant was a former police officer who had committed two criminal offences, namely “common assault” and “criminal damage”, and was therefore ordered by the Commissioner of Police that he be “compulsorily retired with full retirement benefits” (“the Decision”) on 15 January 2020.

2.On 14 April 2020, the applicant applied to the court for leave to apply for judicial review.

3.The hearing for this application was originally scheduled on 29 May 2020, but since later the applicant applied for legal aid, the hearing was eventually adjourned to 19 January 2021.

4.Mr Felix Tang of counsel acted for the applicant. The putative respondent was represented by Mr William K W Liu, Senior Assistant Law Officer (Civil Law) and Mr Ken Ip, Acting Senior Government Counsel.

B.  Background facts

5.Mr Liu has detailed the factual background of this case in his written submissions[1]. The relevant facts are not in dispute[2] and I basically adopt them in the following.

6.The applicant joined the Police Force on 14 December 1998, and had been attached to the Marine Region.

7.The applicant had no criminal record or disciplinary record before the conviction in the present case.

8.The applicant and his ex-wife (“ex-wife”) married in 2008, and they have 2 daughters.

9.Before the order was made, the applicant had been appraised by reviewing officers as “very effective” once (2012) and “outstanding” four times (2013 to 2016).

10.On 12 November 2016, the applicant had an accident while riding a motorcycle to work. He suffered a head injury and was later granted sick leave for 11 months.

11.After the accident, the applicant received regular treatments at the Queen Elizabeth Hospital and counselling provided by the clinical psychologists of the Police.

12.In November 2016, the relationship between the applicant and the ex-wife broke down. The ex-wife moved out with the daughters and applied for a divorce. Subsequently, the ex-wife was granted interim custody of the two daughters and the applicant had access to the two daughters every Saturday.

13.In July 2017, a Medical Board was convened at the request of the Police to assess the applicant’s health and mental condition. The Medical Board was of the opinion that before a further assessment in January 2018, he was not fit to resume normal police duties until there was a re-assessment.

14.On 17 October 2017, since the doctors of the Queen Elizabeth Hospital did not grant sick leave to the applicant anymore, he returned to his post at Marine East Division, working as a deputy to the Assistant Training and Staff Relations Officer.

15.On 4 November 2017, under the arrangements made by the ex-wife, her younger male cousin (“the cousin”) arrived at the location of the offence, with the intention to pick up the two daughters from the applicant. At that time, the applicant was blamed for being late by the cousin and became agitated. The applicant pushed the cousin’s shoulders with his hands, and attacked the cousin’s left cheek with his right hand once, causing the cousin’s glasses to drop to the ground. The two parties then had a quarrel. The applicant further attacked the cousin’s right cheek with his left hand once, causing injuries to the cousin’s face and neck, mild tenderness on the left side of his neck and a reduced range of movement (the facts concerning Charge 1 “common assault”).

16.On the same day, after the occurrence of Charge 1, the applicant visited the residence of the ex-wife’s another younger male cousin (“the other cousin”) for using the toilet. The applicant then asked the other cousin the whereabouts of his ex-wife and her family members. The other cousin said that he did not know.  The applicant became very agitated and scolded the other cousin. After that, the applicant kicked a dehumidifier in the living room once and pushed down an electric fan next to the dehumidifier with his hand, causing more than one crack to the outer casing of the dehumidifier and the electric fan. Eventually, the applicant flung open the door of the other cousin’s residence, resulting in the door banging on the adjacent cabinet and damage to the paint on the door.  The repair of the three damaged items cost HK$1,300 in total (the facts concerning Charge 3 “criminal damage”).

17.On 7 November 2017, the applicant was interdicted due to the above criminal case.

18.On 13 February 2018, the applicant pleaded guilty to “common assault” (Charge 1) and “criminal damage” (Charge 3) at Fanling Magistrates’ Courts. He was convicted of the two charges.

19.On 23 February 2018, the applicant was fined HK$ 2,000 for Charge (1), and in respect of Charge (3), he was sentenced to six weeks’ imprisonment and ordered to pay compensation in the sum of HK$ 1,300 to the victim.

20.The applicant subsequently lodged an appeal against the sentence imposed for Charge (3). On 8 February 2019, the High Court allowed the appeal. The sentence for Charge (3) was substituted with a fine of HK$2,000 while the compensation order stood.

21.On 26 February 2019, the Commissioner of Police informed the applicant by a memo that the Assistant Commissioner of Police (Personnel) had been authorized to exercise the power under section 37(5) of the Police Force Ordinance to decide whether punishment should be imposed for the applicant’s conviction and the severity of the punishment, if any.  Meanwhile, the applicant was invited to make a response in writing to the contents of the memo within 14 days thereafter.

22.After an extension of time, the applicant submitted his written representation through Sun Lawyers on 8 April 2019.

23.On 25 July 2019, the Commissioner of Police sent a memo to the applicant, enclosed with the opinion, dated 15 April 2019, given by the applicant’s Formation Commander (“the Commander”) in respect of his penalty (“the Commander’s opinion”) and the Staffing Note of the Discipline Division dated July 2019 (“the Staffing Note of the Discipline Division”) for the applicant’s reference.  The applicant was given 14 days upon acknowledgment of receipt of the documents to submit his views in writing for the Assistant Commissioner of Police (Personnel) to consider them altogether.

24.After being granted an extension of more than two months, on 22 October 2019, the applicant submitted his representation through Sun Lawyers.

25.On 15 January 2020, the Commissioner of Police informed the applicant by a memo that the Assistant Commissioner of Police (Personnel) had exercised the power under section 37(5)(b) of the Police Force Ordinance and decided to impose a penalty of “compulsory retirement with full retirement benefits” in respect of his conviction.

26.The applicant was compulsorily retired on 17 January 2020.

C.  Form 86

27.The applicant filed a Form 86 on 14 April 2020 to make an application for leave to apply for judicial review against the Decision.

28.The relief sought by the applicant was:

“‘The Police is to withdraw the penalty imposed / the decision of ‘compulsory retirement with full retirement benefits’ against [the applicant] and to reinstate [the applicant].”

29.The applicant set out the following grounds of application in the Form 86:

“1. The Decision is unreasonable. Excessive regard has been paid to certain factors while certain important factors have been neglected in the consideration;

2. The Decision failed to meet the legitimate expectation of the public and the person concerned; and

3. There was procedural injustice in that the Decision was made without giving [the applicant] an opportunity to put forward his representations in person or to have a hearing.”

30.Mr Tang in his written submissions[3] made it clear that the second ground of application set out in the Form 86 would be abandoned.

D.  The test for application for leave to apply for judicial review

31.According to Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the test of “reasonable arguability” is to be adopted for applications for leave to apply for judicial review.

E.  The Police Force Ordinance

32.Under section 37(5)(b) of the Police Force Ordinance:

‘37. Conviction of police officer

…

(5) A police officer in respect of whom a court has found in criminal proceedings that a charge against him in respect of a criminal offence has been proved and whose appeal or other application for review of those proceedings is not allowed or is abandoned or withdrawn, may be dismissed without retirement benefits, compulsorily retired with full retirement benefits or reduced retirement benefits or without retirement benefits, reduced or reverted in rank or subjected to a lesser punishment -

…

(b) by the Commissioner in the case of –

(i) an inspector who has not been confirmed in his appointment; or

(ii) a non-commissioned officer; or

(iii) a police constable:

Provided that an inspector shall not be reduced or reverted to a rank lower than inspector.’

F.  Ground 1 of the application

F.1.  The relevant laws

33.Being different from its appeal function, the role of the court in a judicial review is to exercise its supervisory jurisdiction. The court will not lightly interfere with the findings of a professional tribunal and will only intervene where the tribunal’s discretionary powers have so exceeded the normal limits as to justify a finding that there must have been an error of law.  It is therefore insufficient even if the punishment is unduly severe or surprisingly severe.  It must be shown that the punishment is so harsh and oppressive, or so far outside the normal discretionary limits as to justify a finding that its imposition must involve an error of law - see Chan Kam Choi v Commissioner of Correctional Services[2016] 4 HKLRD 565, per Kwan JA (as she then was) at §26, and Woo Tak Yan v Director of Environmental Protection [2019] HKCA 466, per Chu JA at §78[4].

34.The above legal principle is also applicable in determining a verdict and sentence - Chu Ping Tak v Commissioner of Police[2002] 3 HKLRD 679, per Andrew Cheung DHCJ (as he then was) at §50.

35.It is to the Commissioner and his officers that the determination and punishment of disciplinary charge have been entrusted by the legislation, and not the courts. In discharging such function, they are entitled to, or even have to, bring to bear their knowledge and experience of the requirements and operations of the Police Force. An appropriate measure of respect shall be accorded to their decisions - 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 §50;Cheung Koon Kit v Commissioner of Correctional Services of HKSAR, unreported, HCAL 108/2003, 28 July 2004, at §38 ; and Lau Koon Leung v Medical Council of Hong Kong [2006] 3 HKLRD 225, per Yuen JA at §§70 to 71 and per Lam J (as he then was) at §§78 to 79.

36.A professional disciplinary tribunal is, in comparison with the courts, at a more appropriate position to weigh the seriousness of professional misconduct - see Lau Koon Leung,at §§69-70.

37.It is entirely up to the disciplinary tribunal to decide the weight attributed to the relevant factors, and the courts will not interfere unless the sentence is unreasonable in the Wednesbury sense - see Chan Kam Choi, at §28[5].

38.Recently, in Wong Chun Wai Pett v Commissioner of Police [2020] 2 HKLRD 325 (§§12 to 16), Wilson Chan J has also taken into account and applied the above authorities and legal principle.

39.Mr Tang accepted that in a judicial review the court would not lightly interfere with the internal disciplinary actions taken by the Commissioner of Police. However, he submitted that[6]:

(a)  the disciplinary punishment imposed by the Commissioner of Police involved the right of the applicant to gain his living - see Article 6(1), International Covenant on Economic, Social and Cultural Rights (“ICESCR”);

(b)  ICESCR was applicable to Hong Kong through Article 39 of the Basic Law;

(c)  in the premise that the applicant’s human right was under great impact, the court should exercise its power of review more intensively: see Town Planning Board v Society for the Protection of the Harbour Ltd [2004] 1 HKLRD 396, at §67.

40.Mr Tang’s submissions that ICESCR was applicable to Hong Kong through Article 39 of the Basic Law is incorrect - see GA v Director of Immigration (2014) 17 HKCFAR 60. He withdrew the relevant submissions in the hearing.

41.Although Mr Tang withdrew the above submissions, he still contended that the Decision would seriously affect the applicant, so the court must exercise the power of review more intensively.

42.I do not accept Mr Tang’s submissions on this aspect, as it plainly does not accord with the authorities discussed above.

F.2.  Submissions from both parties

43.In summary, Mr Liu submitted that Ground 1 of the application was not reasonably arguable at all as the applicant has misconceived the relevant factual basis: the important factors allegedly neglected in consideration have already been set out in detail in the Commander’s opinion and the Staffing Note of the Discipline Division in this case. The Discipline Division’s recommendation was also made after considering the overall circumstances of the case, and there was no excessive or neglect of consideration of certain factors.

44.Mr Tang, however, submitted that:

(a)  the Formation Commander of the applicant stated in his Opinion that he did not see any exceptional circumstances which deserved consideration of imposing a penalty lesser than a terminatory punishment. Yet, he did not elaborate the definition of exceptional circumstances;

(b)  there were exceptional circumstances in the applicant’s case, namely:

(i)  the applicant suffered from amnesia and post-traumatic stress disorder due to the accident.  In the same year, his marriage broke up and his ex-wife was granted the custody of their two young daughters;

(ii)  the two offences committed by the applicant were not serious in gravity;

(iii)  the applicant pleaded guilty and agreed with the facts;

(iv)  the applicant did not have any previous criminal record or disciplinary record;

(v)  the applicant had been remanded in custody for more than 3 months.

The Formation Commander of the applicant has relied too much on previous similar cases.

F.3.  Discussion

45.It is shown in the Commander’s opinion that he has considered the applicant’s penalty from multiple aspects:

(a)  background of the conviction (§§4-9);

(b)  service record (§§10-12);

(c)  the applicant’s representations in writing (§13);

(d)  the previous punishments (§14);

(e)  other relevant matters:

(i)  the applicant’s health and psychological conditions after the accident (§15);

(ii)  the Commander was deeply disappointed at the applicant’s conduct in the incident. The applicant’s criminal conduct had tarnished the image of the Police Force. As a Formation Commander, he had lost confidence in the applicant.  He did not see any exceptional circumstances which deserved consideration of a penalty lesser than a terminatory punishment. Hence, he recommended that a terminatory punishment be imposed on the applicant to show that the Police Force would not tolerate the criminal conduct of the officers. (§16);

(iii)  “However, having taken into account that [the applicant] has been performing well in his service with the Police Force and that he is his two young daughters’ sole financial support, it is therefore recommended that a penalty of ‘compulsory retirement with full retirement benefits’ is to be imposed on [the applicant].” (§17)

46.The Discipline Division also set out the grounds of their considerations from multiple aspects in the Staffing Note:

(a)  the summary of facts (§§3-4);

(b)  the reasons for sentence (§5);

(c)  the grounds of appeal, including that the judge sympathized with the applicant for the misfortune caused by the traffic accident, which had ruined his career and family (§§6-7);

(d)  the applicant’s representations (§8, 20 points in total), including:

(i)  the applicant was deeply remorseful;

(ii)  his good performance in the past;

(iii)  the applicant was under tremendous stress and emotional disturbance;

(iv)  the accident concerned;

(v)  the marriage hit the rocks;

(vi)  suffering from a depressive mood, stress and post-traumatic stress disorder;

(vii)  it was mentioned in the medical report that the applicant became more and more irritable and easily got annoyed;

(viii)  the applicant pleaded guilty;

(ix)  the judge expressed sympathy for the applicant;

(x)  the offences were not serious;

(xi)  the judge stated in the appellate judgment that the court would not neglect the fact that the applicant was mentally ill when he committed the crime;

(xii)  he had been remanded in custody before the trial for more than three months;

(e)  the Commander’s comments (§9);

(f)  the service record (§10);

(g)  the conclusion (§§11-13), including:

“ 12. As a law enforcement officer, be it on duty or off duty, [the applicant] should always strictly abide by the law. However, [the applicant] behaved violently in Charges (1) and (3) and was not able to contain his emotions. His conduct significantly fell short of the public’s legitimate expectations on the law enforcement officers. His misconduct has seriously tarnished the image of the Police Force. As an experienced police officer, he should be well aware that the criminal conduct may cause serious consequence. [The applicant] should not be deployed to discharge police duties anymore. The penalty of ‘dismissal’ is reasonable.

13. However, having taken into account the mitigation in the case, the service record of [the applicant] and the comments of [the Commander], the penalty of ‘compulsory retirement with full retirement benefits’ recommended by [the Commander] is acceptable.”

47.I do not accept the applicant’s allegation that the Commissioner of Police has neglected to consider certain important factors.  It can be seen from the Staffing Note of the Discipline Division that the Discipline Division has set out in detail their considerations on the penalties under section 37(5).

48.I also do not accept the applicant’s allegation that the Commissioner of Police has given excessive consideration or reliance on previous similar cases.  The Commander made clear that the previous similar cases set out were for “reference on the appropriate level” only, which was a proper use - see Chan Kam Choi, at §§17-19.

49.Whether the offences committed by the applicant and the conduct involved (e.g. lack of self-discipline and self-restraint) were serious from the perspective of the discipline of police officers, the Commissioner of Police and his officers are entitled to, or even have to, bring to bear their experience and knowledge of the requirements and operations of the Police Force so as to make a decision.

50.I reiterate that it is entirely for the disciplinary tribunal to decide the weight of the relevant factors, unless the sentence is unreasonable in Wednesbury sense.

51.I do not think that the Commissioner of Police or the Commander had to define the “exceptional circumstances” or elaborate what constitutes “exceptional circumstances”.  I accept the submissions made by Mr Liu.  The concept of “exceptional circumstances” is no stranger to the system in Hong Kong, and it is not practical to ask the Commissioner of Police to define or elaborate “exceptional circumstances” with the background of this case.

52.Going back to the main subject, the main issue of this application is not whether the applicant deserves sympathy (as this is not an applicable standard in law^[7]), nor whether the Decision is harsh.  What the applicant must prove is that the punishment in question is so harsh and oppressive, or so far outside the normal discretionary limits as to justify a finding that its imposition must involve an error of law.  In respect of this main issue, I am of the view that Ground 1 of the applicant does not satisfy the “reasonable arguability” test.  In particular:

(a)  the Discipline Division did set out in detail the reasoning of their considerations on the penalties under section 37(5) of the Police Force Ordinance;

(b)  it is entirely for the Commissioner of Police and his officers to decide the weight attributed to the relevant factors;

(c)  under section 37(5)(b) of the Police Force Ordinance, the Commissioner of Police is empowered to impose the following punishments (from high to low severity):

(i)  dismissal without retirement benefits;

(ii)  compulsory retirement, but/and:

(1)  without retirement benefits,

(2)  with reduced retirement benefits,

(3)  with full retirement benefits; or

(iii)  reduction or reversion in rank; or

(iv)  a lesser punishment;

(d)  after consideration, both the Commander and the Discipline Division were of the view that a terminatory punishment should be imposed;

(e)  however, having taken into account the grounds of mitigation, the Commander and the Discipline Division recommended that a punishment of the lowest severity was to be imposed among the 4 types of terminatory punishment, namely “compulsory retirement with full retirement benefits”;

(f)  this decision was, obviously, within the normal discretionary limits of the Commissioner of Police.

F.4.  Conclusion for Ground 1 of the application

53.For the above reasons, I find that Ground 1 of the application does not satisfy the “reasonable arguability” test.

G.  Ground 2 of the application

54.The applicant has abandoned Ground 2 of the application set out in the Form 86, discussion is therefore not necessary.

H.  Ground 3 of the application

55.In respect of the relevant consideration of law, neither side took issue with it, as suggested.  Mr Tang cited Liu Pik Han v Hong Kong Federation of Insurers Appeals Tribunal, unreported, HCAL 50/2005, 11 July 2005, at §33, and Mr Liu referred to ST v Betty Kwan [2014] 4 HKLRD 277 and Cheung Koon Kit at §§28-32.  The main issue, which neither side disputed, is that an oral hearing is not indispensable.  The ultimate question is justice - whether an oral hearing would help in achieving a fair and just decision.

56.I find that Ground 3 of the application does not satisfy the “reasonable arguability” test based on the following reasons:

(a)  there was no factual dispute in this case and no need to call any witness;

(b)  there were written records of the applicant’s criminal conviction and the outcome of the appeal, etc, which could be relied on and were not in dispute;

(c)  the applicant was legally represented in the entire proceedings;

(d)  the Commissioner of Police did give the applicant opportunities and sufficient time to make written representations on the penalty;

(e)  the actual focus of the issue was sentencing, for which the applicant had put forward written representations in detail through his lawyer twice;

(f)  even more so, the applicant did not insist on having an oral hearing.  It was stated in paragraph 32 of the applicant’s representation submitted through his lawyer on 22 October 2019:

“ Our client would also prefer an oral hearing be held unless you find it unnecessary or of no further assistance.”

(g)  in respect of the considerations made by the Commissioner of Police in accordance with section 37(5)(b) of the Police Force Ordinance, I do not think that an oral hearing would be helpful in achieving a fair and just decision;

(h)  at any rate, the applicant has already had the opportunity to state his views and grounds in detail before me through his counsel.

I.  Overall conclusion

57.In view of the above reasons, I refuse the applicant’s application for leave to apply for judicial review.

J  Costs

58.I make an order nisi that the applicant shall bear the costs of putative respondent.  Any application for variation shall be made in writing within 14 days from the date of this judgment.  Upon receipt of such application, this Court will give directions on paper separately.

Mr Felix Tang, instructed by Sun Lawyers LLP, for the Applicant

Mr William K W Liu, Senior Assistant Law Officer (Civil Law) and Mr Ken Ip, Senior Government Counsel (Ag.), of Department of Justice, for the Putative Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Justin Yuen, solicitor.