Wong Wai Tak v. The Secretary for The Civil Service

CACV000611/2001

CACV 611/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 611 OF 2001

(ON APPEAL FROM HCAL 2335 OF 2000)

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Coram: Hon Mayo VP, Woo JA and Stone J in Court

Date of Hearing: 10 July 2001

Date of Judgment: 10 July 2001

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1.This is an appeal from a judgment of Hartmann J when he dismissed the applicant's application for an order of certiorari in relation to his compulsory retirement from the police force.

2.The applicant was a senior inspector of police. He joined the police in 1986. In 1990 he was transferred to the Criminal Investigation Division ("CID") and in 1995 to a CID unit in Kowloon City. Apparently he was not happy with this posting and became disillusioned with his career prospects.

3.On six separate occasions he absented himself from his duties without permission. In addition to this, he made false entries in his police notebook in an endeavour to cover up his absence.

4.When he absented himself he went to Macau and passed some of the time in nightclubs and bars.

5.It was some time before his misconduct became known to his superiors. In November 1998 he was informed that disciplinary proceedings would be instituted against him. In December 1998 he made a clean breast of the matter. Shortly after this he was transferred back to the uniform branch.

6.On 4 May 1999 the applicant attended a disciplinary hearing. He pleaded guilty to twelve charges. The first six related to his absenting himself from duty without permission and the remaining charges related to the false entries in his notebook. He pleaded guilty to all the charges. These pleas were accepted by the Commissioner of Police ("Commissioner") in June 1999.

7.On the six charges relating to the notebook the Commissioner ordered that the applicant should be severely reprimanded. He did not however deem it to be appropriate to impose a penalty in relation to the first six charges. This was on account of the fact that the Commissioner's jurisdiction to impose serious sanctions upon officers of the rank of inspector and above is limited. If the Commissioner is of the view that a serious penalty should be imposed he makes a recommendation to the Chief Executive for an appropriate punishment to be imposed. In the present case the recommendation was that the applicant's services should be terminated and he should in due course receive a deferred pension.

8.Under the relevant regulations an officer who is the subject of proceedings of this nature has a right to lodge a petition with the Chief Executive placing before him any circumstances which he considers may assist his case.

9.Unfortunately it would appear that there was some misunderstanding on the part of both the applicant and the Commissioner. Instead of addressing a petition to the Chief Executive the applicant lodged an appeal to the Commissioner appealing against his decision to recommend compulsory retirement. The Commissioner "dismissed" this appeal.

10.Subsequent to this the parties realised that there had been an error and the applicant was afforded an opportunity to lodge a petition with the Chief Executive and he availed himself of this. It is perhaps pertinent to add that the powers of the Chief Executive can be delegated to the Secretary for the Civil Service.

11.The Secretary for the Civil Service, after considering the representations made by the applicant, wrote to him on 23 June 2000 informing him that he was to be compulsorily retired with deferred pension. It is this letter which was the subject of the judicial review before the Judge. The applicant sought an order of certiorari to quash this decision. The gravamen of the complaint made by the applicant was that the punishment which had been imposed was so severe that no reasonable decision-maker could have made it in all of the circumstances of the case.

12.In a thirty-page judgment the Judge gave detailed consideration to all of the submissions made to him by Mr Harris who represented the applicant in the court below and before us.

13.The main thrust of the submissions made by Mr Harris was that the applicant's performance of his duties had been good up to the date of the transgressions in question and that in all of these circumstances the penalty which had been imposed was disproportionate.

14.He also complained about the absence of written reasons being given for the respondent's decision and the fact that he claimed there had been material mistakes of fact. In addition to this he argued that the delay which had occurred amounted to an abuse of power.

15.For the reasons he gave the Judge rejected all of these contentions.

16.There are altogether five grounds of appeal.

17.The first is that the Judge paid insufficient regard to the case of Ng Wai Sang v Commissioner of Police [1998] 3 HKC 501 where it had been held that it was usually necessary for the defaulter to be given reasons for the decision which had been made.

18.It is true that the Judge did not specifically refer to this case. What he did do, though, was to consider a number of relevant cases, and in particular the principles which could be derived from them.

19.What emerged from this was that every case has to be considered on its own merits.

20.In the instant case there is no dispute concerning the underlying facts. The applicant pleaded guilty to the charges. Accordingly there was no necessity for reference to be made to the facts.

21.So far as the imposition of the punishment was concerned, what is clear is that the Commissioner was exercising his professional judgment when making his recommendations to the Chief Executive. There was not very much more that he could say besides saying that in his opinion the continuing offences of an officer absenting himself from duty merited dismissal from the force. The Judge was right to conclude that this was not a case which required written reasons to be given for the decision.

22.The second ground is that the Judge erred in holding that the decision to compulsorily retire the applicant was one that no reasonable decision-maker could make.

23.After considering passages from the judgments of Bokhary JA (as he then was) and Nazareth VP in Au Yeung Kwok Hing v The Attorney General unreported being Civil Appeal 205/94 the Judge said, at p. 16 of his judgment:

"... Disciplined forces are required to be disciplined because history, strewn as it is with crises, has shown that for those who place themselves in harm's way in order to protect the public interest, the ability to act cohesively in the face of such harm is critical. Discipline breeds the ability to act in this way. The importance of discipline, therefore, is best understood by those who most rely on it. This, in my view, is a matter which should be understood when offences against discipline committed in forces dependent upon discipline are challenged as being perverse or irrational.

In light of these principles, I am satisfied that the Respondent was entitled to bear in mind the following matters when reaching his decision:

(i) that the Applicant was a senior inspector commanding an operational unit of CID officers; as such he stood in a position of supervisory responsibility;

(ii) that the Applicant absented himself on 6 different occasions over a period of some 12 months and on each occasion went to Macau; he was not therefore nearby and able to be called to the station quickly if the need arose;

(iii) that in order to disguise his transgressions the Applicant made a number of false entries in his police notebook.

It is correct that there were a number of strong mitigating factors to be taken into account. The Applicant set them out in his petition and most of them were summarised in the internal minute placed before the Respondent. It was for the Respondent to decide what weight, if any, to give to those mitigating factors and I can find nothing irrational in the decision he must have made; namely, that they were not sufficiently cogent to allow him to remit the matter to the Commissioner for the imposition of a lesser penalty.

In all the circumstances, I must reject the submission that the punishment imposed on the Applicant was so severe and so exceptional as to be irrational."

24.It is difficult to fault the logic of this reasoning. It was undoubtedly a serious matter and by no means can it be said that the Judge was in error in making the finding he did.

25.The third ground is that:

"The learned judge erred in not finding that the decision was procedurally unfair because one of the reasons put forward by the Applicant in his appeal against compulsory retirement, namely that he had made up the time lost through his unauthorised absence from duty by working extra unpaid hours, had never been considered by the decision-maker before deciding to retire him. The learned judge failed to deal with this submission by the Applicant in his judgment."

26.This ground really is unmeritorious. It is very little if any mitigation to say that an officer made up for the time he improperly absented himself from his duties by doing unpaid overtime. One of the most serious aspects of the applicant's conduct was the fact that his duties included supervision of subordinate staff and this supervision was lacking while he absented himself. A further aspect of his conduct was the appalling example he was giving to his junior officers. It is not surprising that this making up of time was not a matter which was referred to by the Judge.

27.The fourth ground is that:

"The learned judge erred in not quashing the decision because of material mistakes of fact in the memorandum before the decision-maker. The judge was wrong to conclude that the placing of documents in a float available to the decision-maker, containing correct information, was sufficient to correct mistakes of fact about the Applicant's work record in the memorandum before the decision-maker. The learned judge was wrong to hold in the alternative that the mistakes of fact relating to the Applicant's work record would not have affected the decision to retire him."

28.The so-called material mistakes of fact related to his work performance.

29.In his memorandum of 3 May 2000 the Commissioner referred to a deterioration of the applicant's performance.

30.Mr Harris complains that this observation was not justified by the assessments made on the applicant throughout his employment by his superiors. It would appear from the memorandum in question that the Commissioner did have some justification for the opinion he expressed. He pointed out that whereas in 1994 he had been recommended for consideration to be promoted to Chief Inspector no such recommendations had been made subsequently.

31.The other complaint which is made relates to an observation which was made in an internal minute of 20 June 2000 when it was said that the applicant's work record was not impressive. This was a subjective opinion. As was pointed out by the Judge in his judgment it is impossible to say on the material which was available whether this remark was justified. What is or is not impressive will depend upon a number of factors not least of which is the performance of his duties relative to those of other officers. There is no merit whatever in this complaint.

32.The final ground is that the Judge erred in holding that there had not been unreasonable delay. Mr Harris did not pursue this ground.

33.This appeal is entirely without merit. In this connection it is perhaps apposite to refer to the observations made by Lord Templeman at p. 195 of ex parte TSW Broadcasting Limited [1996] JR 185 (HL) 181:-

"Of course in judicial review proceedings, as in any other proceedings, everything depends on the facts. But judicial review should not be allowed to run riot. The practice of delving through documents in conversations and extracting a few sentences which enable a skilled advocate to produce doubt and confusion where none exists should not be repeated."

34.For the reasons which have been given, this appeal is dismissed. The respondent will have his costs, and the applicant's costs will be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr Paul Harris, instructed by Messrs John M. Pickavant & Co. for the applicant

Mr Anthony Ismail, instructed by the Department of Justice for the respondent