Re Kwok Wai Hung

HCMP003013/1995

1995, M.P. No. 3013

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Yeung in Court

Date of Hearing: 8 February 1996

Date of Judgment: 8 February 1996

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J U D G M E N T

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1. The Applicant, Kwok Wai Hung applied for an order of Certiorari to quash the decision dismissing him from the Royal Hong Kong Police Force, leave having been granted by Mr. Justice Sears on the 20th of November 1995.

2. At the conclusion of the hearing, I dismissed the application with costs. I indicated that I should give my reasons in writing and this I now do.

3. The Applicant had been a police officer for almost 15 years before he was dismissed. At the time of the dismissal, he was a detective police constable No. 22787.

4. Disciplinary Proceedings were brought against the Applicant on the 1st of March 1995. He was originally charged with a total of eleven charges, (A) and (B) charges of 'negligent loss of Government Property-his police note books', (C) charge of 'making a false statement in a material particular' and the (D) to (K) charges of 'contravention of Police Orders by accepting unauthorised loans.'

5. The (C) charge of 'making a false statement in a material particular' was subsequently withdrawn and a new (L) charge of 'Neglect of Duty' was added. The Applicant pleaded guilty to all the charges.

6. In respect of each of the (A), (B), and (D) to (K) charges, 'Severe reprimand' was awarded. In respect of the (L) charge, the Applicant was dismissed. The "sentences" were confirmed by the Force Discipline Officer on 19th of May 1995.

7. The Applicant appealed to the Commissioner of Police against the dismissal which appeal was unsuccessful.

8. For the purpose of the present proceeding, the only relevant charge was the (L) charge. The background leading to the (L) charge as revealed in the agreed facts of the case was as follows:

"In late 1994, an information was received by OCTB officers and as a result Male TSANG Chung was arrested on 1.10.1994. He was put into a room where covert video facilities was installed. The defaulter (the Applicant) was then instructed to guard the prisoner alone. Subsequently, it was unveiled that the prisoner has disclosed some information to the defaulter which is material in particular to the briefing the defaulter received in the same morning. However, the defaulter failed to reveal such information to his superior afterwards."

9. In deciding to award a dismissal against the Applicant in respect of the (L) charge, the Senior Police Officer appointed under Regulation 2 of the Police (Discipline) Regulations, Cap. 232, Chief Superintendent of Police Mr. K. Braithwaite made the following observation:

"I have read the transcript of the conversation between the defaulter and arrested male TSANG Chung which is the subject of the final charge (L). I have also carefully read the statement in mitigation which suggests that the defaulter:-

(a) told Tsang the phone was bugged as an excuse for not allowing him to use it - when the logical response could have been a straight forward refusal;

(b) appeared friendly towards TSANG in an attempt at possible subsequent recruitment as an informer;

(c) did not recall the importance of Target "B.B.Wai" in the operational briefing and in any case believed that a Traffick Index Check with Immigration would have surfaced the fact that the target had departed H.K. Thereafter the target would have surfaced again upon return through the Immigration Control point; and

(d) whilst admitting to a mistake of judgment, this was not serious and there was no intention to cover up for the prisoner or impede the investigation.

My interpretation of the transcript of the conversation in response to these points is that TSANG Chung and the defaulter were acquainted with each other previously in a most conspiratorial and sinister fashion. In fact at one point he appears to be coaching TSANG on refusing to answer questions. The whole tenor of the conversation leads me to reject the explanations given, to conclude that the integrity of the defaulter is in severe doubt and that his actions bordered on the criminal. Such a person in my view cannot under any circumstances be allowed to in the RHKP.

For charge (L) I award a recommendation of "Dismissal"."

10. Mr. McCoy on behalf of the Applicant submitted that the finding of Superintendent Braithwaite was unsupported by evidence and that the Applicant had been sentenced on the wrong basis. The suggestion was that he should be sentenced on the particulars of the charge and the admitted facts only.

11. The particulars of the Charge (L) read as follows :

"You failed to report to your superior information regarding to B.B. Wai and Pannu, which was conveyed to you by prisoner male TSANG Chung while you were guarding him on 1.10.94. Such information is material in particular to briefing you received in the same morning."

12. It was not disputed that at the briefing, the Applicant had been instructed to "look for documentary evidence to link LAU with a Chinese Male nicknamed B.B. Wai.....and documents, notebooks, telephone books etc which have the latest contact numbers of B B Wai.........."

13. Mr. McCoy suggested that the Applicant was only instructed to look for documentary evidence concerning B B Wai and the neglect was only his failure to pass on the information about B B Wai that he obtained orally from TSANG Chung when he was guarding him. He suggested that this was an important aspect that Superintendent Braithwaite had failed to take into consideration.

14. The briefing referred to documents, but the tenor clearly was that the police was looking for B B Wai and any information on his whereabouts would be relevant.

15. By pleading guilty to the Charge (L), the Applicant admitted that he had failed to do something that he should have done. I fail to see any significance about the reference only to documents in the briefing. There could no doubt that he should have related the information he obtained from TSANG Chung in the proper discharge of his duties as a police officer although the information was not in the form of a document.

16. I also reject the suggestion that Superintendent Braithwaite had taken into consideration irrelevant matters and that the applicant ought to have been sentenced on the "Admitted Facts" only.

17. The word "neglect" simply means failure to do what one should do or doing something that one should not do. There is a wide range of "culpability" within the spectrum of "neglect" and the adjudicating tribunal should and must take into consideration the background and circumstances in which the "neglect of duty" was committed.

18. There was no dispute that the meeting between the Applicant and TSANG Chung had been video-taped. Superintendent Braithwaite referred to the transcript of the video tape in deciding the culpability of the Applicant within the spectrum of the charge of neglect of duty and not just the simple facts that he failed to reveal certain information to his superior. He was also entitled to draw reasonable inferences provide that such inferences were the only reasonable inferences to be drawn.

19. I cannot see how the attack on Superintendent Braithwaite that he based on irrelevant matter and/speculation in reaching his decision was justified.

20. I have considered the content of the transcript in question. It indeed painted a very glimmering picture about the Applicant. It may be useful to reproduce part of the exchange between the Applicant and TSANG Chung in their meeting.

Kwok (Applicant) : They haven't told you anything ?

Tsang: (His hand gesture showed that he didn't know.)

Kwok: motioned to Tsang Chung to bolt the door.

..........

Tsang: Do I need to engage any lawyer ?

Kwok: Does anybody know that you are arrested ?

Tsang: (Shook his head to indicate that nobody knew about this.)

............ .

Kwok: Not yet.....(if) I let you make a phone call now, people would know that you make phone calls in the room, you fucking fool. Did anybody of the group of people (who were here) just now know that you make (phone calls) ?

Tsang: (Shook his head) and said no.

Kwok: So I said. If yes,.... put it to his account, right ?...The phone conversations are tapped. I tried several times but could not put the calls through just now. The apparatus.......it has been tapped.

............

Kwok: You moved there to live on your own, right ? Well, your place is very near to the old home.

Tsang: Perhaps that Inspector showed discontent....that Inspector.

Kwok: .........it's fucking coincidental that I have returned just now. I didn't receive any tip off this morning. I didn't go to do it wither. Who the fuck knew that it really happened.

..................

Tsang: That day, Peter......asked my wife to page you, Peter.

..........

Tsang: A little while ago, my wife paged you.

..............

Kwok: Hey, don't engage any lawyer, don't engage any lawyer. Ask me ? It's a fucking waste of breath. Outrage him, make him give you a fuck.....Refuse to answer every question you're asked. (")If you have the evidence, charge me.(") Right ? Don't say anything..........as simple as that. Just say you don't know. (")If you have the evidence, charge me. Do anything you like..........don't know.(") He will nail you down at any rate...... ("If you) have something in your hand......charge me as you please(")......right.........that is the way to say, right ?

.............

Tsang : Ah Cheong and I have tried to ask you to have meal with us.

............

Tsang: Ah Cheong said that he couldn't find you. He said that he didn't know your pager number.

Kwok: He didn't have my pager number ? Uh, he has his way to find me....

..............

Tsang: Ah B B hasn't returned from Zhuhai yet........

Tsang: B B Wai hasn't returned............

Kwok: What has it got to do with B B Wai ?

Tsang:...............B B hasn't returned; he is still in Zhuhai.

21. The mentioning of B B Wai by Tsang was made at about 11 O'clock. About 5 minutes later, when Inspector Yuen entered the room, he asked the Applicant if Tsang had said anything. The Applicant replied, "He said nothing. I didn't ask him anything....I don't know.........I don't know. He was again asked, "What did he say ?" He said, "I don't know."

22. It was in the context of aforesaid background that Superintendent Braithwaite had to consider the circumstances in which the offence of neglect of duty was committed by the Applicant.

23. In my view, Superintendent Braithwaite was perfectly entitled to come to the conclusion as he did that Tsang Chung and the Applicant were acquainted with each other previously and that the Applicant was indeed attempting to assist Tsang in a most conspiratorial and sinister fashion.

24. He was also entitled to take into consideration that the Applicant appeared to be coaching Tsang on refusing to answer questions in his consideration of the circumstances in which the offence of neglect of duty was committed.

25. The Superintendent was perfectly entitled to conclude as he did that the whole tenor of the conversation did not support the Applicant's explanation and that the integrity of the Applicant was in severe doubt and that his actions bordered on the criminal.

26. On the conclusion reached by Superintendent Braithwaite, the only proper penalty in my view was dismissal and such punishment could not be said to be severe beyond any rational relationship to the seriousness of the offence and the situation of the Applicant.

27. The Force Discipline Officer and the Commissioner of Police were entitled to confirm the decision made by Superintendent Braithwaite.

28. The Applicant had not been able to show that there is any aspect of the decision making process which could be said to be Wednesbury unreasonable.

29. The application was without merit and had to be dismissed.

(W. Yeung)

Judge of the High Court

Representation:

Mr. McCoy and Mr. V. Luk instructed by Messrs. Stevenson, Wong and Co. for the Applicant.

Ms. L. Shine of A.G. Chambers for the Respondent.