Martin Henry Heyes v. Chief Executive of the HKSAR

HCAL001961/2001

HCAL1961/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1961 OF 2001

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Coram: Hon Hartmann J in Court

Dates of Hearing: 14, 24 December 2001 and 1 February 2002

Date of Handing Down Judgment: 10 April 2002

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J U D G M E N T

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Introduction

1.At all times material to this matter, the applicant has been a serving officer in the Hong Kong Police holding the rank of Chief Inspector. By letter dated 2 June 2001, the applicant was informed that the Chief Executive had ordered that he be compulsorily retired from the force, the retirement to take effect from 11 June of that year. The order was made pursuant to regulation 27 of the Police (Discipline) Regulations, Cap. 232 ('the Regulations') and had followed the application's conviction of three disciplinary offences under those Regulations. The applicant was not stripped of this pension rights but was granted a deferred pension.

2.The applicant now seeks an order of certiori to quash the decision of the Chief Executive. Expressed in the broadest of terms, he does so on the basis that there were procedural improprieties in the decision-making process and that the process was undermined by unfairness to him, the result being that the decision was unlawful.

3.To understand the basis of the applicant's challenge it is necessary first to consider the circumstances in which he came to be convicted of the disciplinary offences.

Events giving rise to the disciplinary proceedings

4.In October 1998, the applicant held the post of Assistant Divisional Commander, Administration, in the Wong Tai Sin Division. He had joined the force in 1975 and up until that time was able to boast an unblemished record.

5.One of the applicant's responsibilities was the custody of the contents of a safe which contained police bail moneys, other cash and valuables of different kinds.

6.In or about October 1998, the applicant was having renovation work done to his apartment. On 29 of that month he was required to take home $5,000 to give to his wife so that a contractor could be paid. It seems that he was unable to get to the bank that day and he therefore removed $5,000 cash from the safe in his custody. The removal was not in any way authorized; it was to meet a purely personal need.

7.The following day, although the evidence shows that there were sufficient funds in his bank account, the applicant did not make it a priority to withdraw $5,000 from his account to meet the shortfall in his safe. That apparent cavalier attitude was to cost him dearly when, at about 4 o'clock in the afternoon, the Divisional Commander, the applicant's supervising officer, came to the applicant's office to carry out a check on the contents of the safe. It was seemingly a random check, routine but not announced.

8.In an attempt to escape his predicament, the applicant made an excuse to the Divisional Commander and, while that officer waited in his office, he sought to obtain the shortfall from colleagues within the building. The applicant went first to a junior officer, an inspector, and sought to borrow the money from him. He was unsuccessful. The applicant then went to the Duty Officer, a non-commissioned officer who also had custody of a safe, and asked for $5,000. The evidence suggests that the Duty Officer handed over the cash on the understanding that he had been instructed to make a legitimate transfer of funds.

9.When, after an absence of about ten minutes, the applicant returned to his office, he attempted to secret the shortfall into the safe but this was seen by the Divisional Commander who stopped him. The applicant then confessed to the shortfall and explained how it had arisen.

The disciplinary proceedings

10.An investigation into the matter ensued. The applicant co-operated fully with that investigation. The Director of Public Prosecutions was asked to consider the case but advised against the institution of criminal proceedings. In the result, disciplinary proceedings took place and in December of that year the applicant was charged with three counts of conduct to the prejudice of good order and discipline, contrary to regulation 3(2)(c) of the Regulations. The counts were to the following effect :

(i) Charge A alleged that -

"...you [the applicant] did withdraw police bail money cash $5,000-HK from safe .... under your control as Assistant Divisional Commander, Administration of Wong Tai Sin Police Division, other than for official police purposes, such conduct being to the prejudice of good order and discipline"

(ii) Charge B alleged that -

".... you [the applicant]did pay no regard to the provisions of PGO [Police General Orders] 6-01(4) concerning financial obligations by asking your subordinate, SIP Wong Kei-Wai, for a loan of $5,000-HK without permission, such conduct being to the prejudice of good order and discipline"

(iii) Charge C alleged that -

".... You [the applicant] did ask your subordinate SSGT, Tam Kuen-Siu to hand over $5,000-HK to you from his safe, other than for official police purposes, such conduct being to the prejudice of good order and discipline"

11.It will be seen that Charge A did not allege that the applicant had removed the moneys from the safe with any intent to commit a criminal offence; it was alleged only that the funds were withdrawn for 'other than official police purposes' and that this constituted conduct prejudicial to good order and discipline.

12.In January 1999, the applicant appeared before a disciplinary tribunal constituted in terms of the Regulations. The presiding officer held the rank of Acting Chief Superintendent. The applicant pleaded guilty to all three charges. The question of his guilt has never been an issue.

13.In respect of Charge A - the withdrawing of money from the safe - the findings of the tribunal were summarized in its judgment in the following terms :

" The defaulter's conduct in the withdrawal from his official safe of the $5,000-HK police bail money, for his own convenience and purposes other than in the course of proper police bail money handling, formed the basis of the first charge i.e. Charge A which is "Conduct to the Prejudice of Good Order and Discipline. To this charge, the defaulter has pleaded guilty to this tribunal."

14.The finding of guilt, therefore, was based on the removal of funds for the applicant's 'own convenience and purposes' other than for official police business. That being so, in my judgment, the nature of that 'convenience' or of those 'purposes' went to the seriousness of the offence not to the fact of its commission. That distinction is, in the context of these judicial review proceedings, an important one.

15.After the findings of guilt, the applicant presented mitigation. That was considered by the tribunal which, on 16 January 1999, gave its judgment.

16.Much has been made of various pronouncements in the judgment concerning the applicant's moral culpability. But it must be understood that they were made in light of the acceptance by the tribunal that it did not have jurisdiction to impose appropriate punishments and that the determination of those punishments must therefore be referred to a higher tribunal. In this regard regulation 23(4) of the Regulations states :

"Where a defaulter has pleaded guilty or has been found guilty, and the appropriate tribunal considers that the punishment which it can awards is insufficient, the record shall be endorsed accordingly and shall be sent to the Commissioner and the defaulter shall be informed of this action."

17.In the judgment itself, the presiding officer said :

"I am firmly of the view that the maximum award I can impose is not adequate having regard to the serious nature of the offences and the circumstances surrounding the case. I am now informing you that the punishment I can award is insufficient. My findings will be referred to the Commissioner of Police for the appropriate award(s) and you will be advised in due course."

18.Accordingly, the 'findings' referred to in the judgment must be the findings made by the tribunal in order to reach its verdicts of guilty. If the tribunal did not have jurisdiction to determine punishment, it did not have the power to make findings relevant only to punishment. This was understood by the presiding officer as, having accepted that the tribunal had no jurisdiction to determine punishment, he continued by saying :

"As to my recommendations for consideration of appropriate award(s) in respect of the three charges, I will need to examine here various facts of the case and the relevant mitigating factors before any recommendation is put forward" [my emphasis]

19.Regulations 23(1) and (3) of the Regulations, under the heading 'Proceedings after hearing', are unambiguous in making the distinction :

"(1) The appropriate tribunal conducting the hearing shall at the conclusion of the hearing announce its finding on the charges or shall reserve its finding. The finding shall be entered on the record and if the finding has been reserved the appropriate tribunal shall call the defaulter before it to announce its finding.

(2) ....

(3) If a defaulter has pleaded guilty or is found guilty, the appropriate tribunal shall then announce its award or shall reserve its award. The award shall be endorsed on the record, and if the award has been reserved the appropriate tribunal shall call the defaulter before it to announce its award."

20.That being the case, all matters referred to in the judgment which relate to mitigation and punishment are not 'findings' but are, as the presiding officer expressed it 'recommendations' only.

The tribunal's recommendations as to punishment

21.In respect of its recommendations, by way of general observation, the tribunal said the following :

"The defaulter maintained, and this was not disputed by the prosecuting officer, that the defaulter had no intention to steal and there was not any corrupt motive throughout. In support of this assertion, the defaulter produced bank statements during the initial police enquiry as to the sufficiency of funds in his bank account(s) to meet his financial obligations.... The defaulter also clarified that he had repaid any money due following the incident by returning to the respective safe-holders the correct amounts of money in relation to his acts in the incident. I feel that these could be properly taken into account as part of the mitigating factors."

22.The tribunal, however, found that the offences were serious. In this regard the presiding officer commented:

"...the occurrence of the case has given rise to considerable erosion of confidence and serious doubt on defaulter's integrity and ability in controlling himself and discharging the duties of a middle rank police officer which entail, amongst other things, the general guidance and supervision of his subordinate officers. Needless to say, there is parallel grave concern arising as to the continued suitability for the defaulters to be relied upon by his junior officers during the handling of pecuniary matters which are often part and parcel of a police officer's daily work.

There is at the same time another grave concern about the wrong message that could be sent out by the overall conduct of the defaulter in this case to the police force and the public at large. And had this case not been interrupted by [the Divisional Commander's] check, one should wonder what the general and specific rippling effect the defaulter's conduct could have towards the well-established standard of conduct and professionalism that the Force proudly treasures and that the public rightly demands.

I am of the view that the overall gravity of the case should have called for the immediate discontinuation of the defaulter's service with the police force."

23.However, in weighing the seriousness of the contraventions against the mitigating factors, the tribunal was drawn to the conclusion that it should not recommend removal from the Force. The specific recommendations were, therefore, as follows :

(i) Charge A -

Although this was considered serious, it was 'accepted' that the applicant had acted out of 'stupidity rather than negligence, greed or corrupt motive'. A reprimand was recommended. In this regard, the following was stated by the tribunal :

" In considering the charges individually, the offence of Charge A is a serious one although it is accepted that the defaulter acted out of stupidity rather than negligence, greed or corrupt motive. I recommend a 'Reprimand' to be considered as the award for this charge."

(ii) Charge B -

This was considered more serious because the applicant, by attempting to borrow from a subordinate officer had put that officers integrity at risk. A severe reprimand was recommended.

(iii) Charge C -

This was considered to be the most serious of the three contraventions, involving as it did a non-commissioned officer who handed the applicant $5,000 believing it to be a legitimate transfer of funds. A suspended order of reduction in rank to Senior Inspector was recommended.

The views of the Commissioner of Police as to punishment

24.The Commissioner was of the opinion that the awards recommended by the tribunal did not reflect the gravity of the applicant's transgressions. In a minute dated 22 March 1999, he wrote the following :

" The primary consideration for award in a disciplinary case of this serious nature is whether the officer concerned can still be placed in a position of trust. I am afraid in this case the answer is 'NO'. The abuse of trust in the handling of cash and valuables, as a matter of principle, should attract a terminatory award and the circumstances of this case, including the mitigation, do not justify an exception to this principle.

Therefore, for Charge A, having carefully considered the defaulter's length of service and service record, I find the most appropriate award will be 'compulsory retirement with deferred pension benefits'. ...."

25.In respect of Charge B, the Commissioner made an award of a reprimand and, in respect of Charge C, a severe reprimand.

26.Although the Commissioner concluded that a terminatory award was appropriate in respect of Charge A, he did not have the power to make that award. In terms of regulation 27 of the Regulations, he therefore referred the matter to the Chief Executive. Regulation 27 provides that :

" (1) Where any inspector is found guilty of any of the offences against discipline specified in regulation 3(2) and it appears to the Commissioner that the nature of the offence is so aggravated and other relevant circumstances such that dismissal or compulsory retirement with pension, gratuity or other allowances, without such benefits or with reduced benefits is merited, the Commissioner shall forward to the Chief Executive a report containing-

(a) the record of the proceedings;

(b) the record of the inspector's service;

(c) the Commissioner's recommendation; and

(d) his reasons for not making an award under regulation 25(1) or (2).

(2) The Commissioner shall at the same time as he forwards a report under paragraph (1) inform the inspector that his case will be considered by the Chief Executive, and the inspector may within 14 days of the receipt of such information, or within such extended time as the Chief Executive may allow, forward to the Chief Executive a written petition containing such representations as may be relevant to enable the Chief Executive to exercise the discretion under paragraph (3)."

27.Under regulation 27(3) - of which more will be spoken later in this judgment - the Chief Executive possesses the power, inter alia, to order the compulsory retirement of an officer with such pension benefits as he determines appropriate.

28.In or about January 2000 the Secretary for the Civil Service acting under authority delegated to him by the Chief Executive, determined that the recommendation of the Commissioner should be followed and that the applicant should be compulsorily retired with deferred pension benefits.

29.In May 2000, the applicant sought judicial review of this decision. However, before the matter came for hearing, it was agreed between the parties that the decision of the Secretary for the Civil Service had been undermined by procedural irregularities. As a result, the order was set aside and the matter came back before the Commissioner for reconsideration.

30.The Commissioner, however, remained of the same view, namely, that the applicant's conduct merited a terminatory award. Accordingly, the matter was for a second time referred to a higher authority.

31.In terms of regulation 27(1)(d), the Commissioner was obliged to give his reasons for not determining a punishment within his jurisdiction. In so doing he pulled no punches. Of central significance to this judicial review, the Commissioner was of the stated opinion that, even though the applicant may not have intended to steal the funds removed from the safe, his conduct nevertheless displayed a form of dishonesty which made his continued service in the Hong Kong Police unacceptable. In this regard, inter alia, the Commissioner said :

"The act of the defaulter of withdrawing a sum of $5,000 from his office safe ostensibly for the purpose of enabling his wife to make payment for household repairs is simply intolerable. It indicates his total disregard for the trust placed in him to handle the cash in his safe honestly. One is inclined to compare this situation with that of a bank teller taking a sum of money from his till for his private use and then returning it afterwards. Another similar example is that of a Duty Officer making unauthorized use of the bail money in his safe. In this case, the defaulter was caught before he was able to replenish his cash holding. He made the situation worse by attempting to borrow from his subordinates, in order to "cover up" his unofficial withdrawal. The whole incident spells dishonesty and incompetence as a senior officer." [my emphasis]

The Commissioner continued by saying :

"The defaulter took the bail money unlawfully from his office safe for a private purpose on the evening of 29 October 1998. He did not return the money to his office safe on the morning of 30 October 1998. His removing of the cash without recording such in the safe register is an attempt to conceal the unauthorized use of the cash. This was dishonest, and was done so hoping that he could use it for his private use and returning it before such unauthorized use could be discovered. As it transpired, the discrepancy was discovered by his supervisor during a surprise check at 1600 hours on 30 October 1998. His failure to seize the first opportunity to rectify his mistake when he returned duty on the next day further demonstrates his reckless and casual attitude towards discipline. His action showed that he treated the bail money as his own. Such blatant disregard of his responsibility and the trust placed in him for safe custody of bail money has undermined public confidence in him and will not be tolerated by the Force. I am disturbed by the defaulter's aberrant behaviour which has grossly violated the fundamental principles of any police officer to be honest and trustworthy." [my emphasis]

The Commissioner concluded :

"As a result of his actions, I have lost confidence in the defaulter to the extent that he cannot continue to discharge constabulary duties. To give him a non-terminatory award would most definitely send a wrong message to the Force."

The decision of the Chief Executive

32.By letter dated 2 June 2001, the applicant was informed that the Chief Executive had ordered that he be compulsorily retired from the Hong Kong Police. That is the decision -the single decision - which is challenged by the applicant in these proceedings for judicial review.

33.To enable the Chief Executive to reach his decision, a dossier of papers was prepared for him. It was prepared by a senior member of the Chief Secretary's staff. It consisted of a lengthy minute and a number of annexures (or 'flags' as they are termed) which were attached to that minute. It was on the basis of the materials contained in this dossier that the Chief Executive reached his decision and it is to the contents of this dossier that the applicant has turned in contending that the decision of the Chief Executive should be quashed. Expressed in the broadest of terms, it is contended that the minute was unfair and inaccurate; that it was not objective and that it contained advice which was factually and legally incorrect. In addition, it did not place before the Chief Executive the range of punishments open to him for imposition but focused only on the one punishment recommended by the Commissioner.

The dossier was not a fair and objective document

34.It has been accepted by the applicant that there is no prohibition against the Chief Executive seeking assistance from those who serve him by relying on them to marshall relevant materials in an orderly fashion and to provide some guidance to him. However, the marshalling of the materials and the guidance given must be fair and objective. If they are not then - patently - the Chief Executive is presented with a biased set of papers upon which to make his decision.

35.As a statement of principle that cannot be faulted. It accords with the demand for fairness in public administration. If it was otherwise it would allow those serving the Chief Executive to effectively undermine the jurisdiction vested exclusively in him.

36.The principle was stated by McCullough J in Cran v Camden London Borough Council [1995] RTR 346 (at 901) in the following terms :

"Members [of the borough council] rely on officers to produce fair, accurate and objective summaries. It is not sufficient to leave members to ferret out some point of significance or to discover some imbalance in the report from studying an appendix. One cannot expect perfection in the field of local government administration - or in any other - but affected citizens and representative organisations are entitled to expect objectivity in those whose duty it is to convey to decision-makers what they have suggested."

37.Another authority which states the principle in plain terms is R v Bacon's City Technology College ex parte W [1998] ELR 488 (at 498) :

"If that sort of positive material is to be relied upon, it seems to me it is manifestly unfair if a student against whom those matters are to be adduced is not given an opportunity of either seeing them or of dealing with them explicitly. It may be he can show that one or more is palpably inadequate. I do not know whether that is the case here, but it may be. ... True it is that the Appeals Committee is not a court of law but it does not mean that it should not act fairly. What is fair in any given case obviously depends upon the circumstances, but to rely on something by hearsay without seeing any of the material and without giving the parents the opportunity to see that material is, unquestionably unfair."

38.Leaving aside for the moment the issue of whether the dossier was in error in respect of material facts and law, it is contended that the dossier was neither a fair nor an objective set of documents. It was instead - so the criticism goes - a set of documents of 'powerful advocacy' seeking one result : the applicant's removal from service. In his amended grounds of challenge, the applicant complained that the minute contained extensive comments from the Chief Secretary's staff supporting the Commissioner's recommendations while the applicant's own representations, made through his solicitors, were 'simply flagged and attached with a note to that effect added to the [covering] minute telling the Chief Executive that the applicant there had "the last word"'.

39.It is correct that the Chief Secretary's staff made recommendations in support of the Commissioner. But, in my judgment, advice of that nature is permissible. The fact that it is given does not mean that the Chief Executive is obliged to follow it. It always remains his decision to make but he makes it in light of the recommendations given to him by staff who have knowledge of precedent in the field. The Chief Executive, as an elected officer, holds office for a limited period. How else is he to avoid arbitrariness and a lack of consistency unless he obtains advice from those who are able to tap such knowledge?

40.In this regard, I can do no better than cited the words of Lord Diplock in Bushell and Another v. Secretary of State for the Environment [1981] AC 75. The matter concerned an inquiry into the construction of a motorway, in many ways, of course, very different from a disciplinary matter which determines the future of an individual. But that being said, the legislature has given the decision-making task to the Chief Executive, an elected officer, and he must, therefore, while the decision remains solely his to make, receive assistance from those within Government who serve him. At page 94, Lord Diplock said :

" What is fair procedure is to be judged not in the light of constitutional fictions as to the relationship between the minister and the other servants of the Crown who serve in the government department of which he is the head, but in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached. To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament's intention. Ministers come and go; departments, through their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. ....

....

.... No one could reasonably suggest that as part of the decision-making process after receipt of the report the minister ought not to consult with the officials of his department and obtain from them the best informed advice he can to enable him to form a balanced judgment on the strength of the objections and merits of the scheme in the interest of the public as a whole, or that he was bound to communicate the departmental advice that he received to the promoting authority and the objectors."

41.Having read the covering minute in the dossier, I do not find it to be the biased document spoken of by the applicant. Indeed, it seems to me to be, as Mr Westbrook, for the Chief Executive, expressed it, 'a fair and balanced document which put both sides' submissions with full references'.

42.It is true that a recommendation was made that the applicant's service be terminated but it was, in my view, expressed in a restrained, non-emotive manner and in the shadow of the mitigating factors supporting the applicant. The minute in this regard reads :

" We have examined the case carefully and have taken the following mitigating factors into account :

(a) HEYES' admission of guilt and sincere remorse for the misconduct;

(b) his commission of the offence 'out of stupidity rather than negligence, greed or corrupt motive' (Flag I - page 35 of the Appropriate Tribunal's Judgment);

(c) his 23 years of unblemished service in the Force (a summary of his performance record since promotion to Chief Inspector is at Flag J);

(d) his clear disciplinary record; and

(e) the effect of the punishment on him and his family.

However, we consider this duty-related offence is a serious one that reflects badly on HEYES' reliability and integrity. We have also taken into account of CP's inability to place HEYES in a position of trust. We consider that the award of compulsory retirement which enables HEYES to retain the accrued retirement benefits but discontinues his service in the Force to be appropriate."

43.As for the suggestion that the applicant's representations were simply flagged by way of an annexure, that criticism arises out of the penultimate paragraph of the covering minute which is captioned 'Last Word' and reads :

" D of J [Department of Justice] advised that HEYES was to have sight of Civil Service Bureau's comments and to be given an opportunity to comment on them before the case was submitted to you for decision under regulation 27(3) of the P(D)R. Our comments (paras 15 to 17 above) were therefore sent to HEYES' solicitors for comment. Their response is at Flag K."

44.The fact that the comments were not themselves summarized in the minute is, in my view, not unfair to the applicant. Nothing completely new arose in those comments; the applicant's representations had already been summarized. The Chief Executive was not left in a position where he had to ferret out the annexure or somehow track down the applicant's representations. In this regard, the present case can be distinguished from the entirely different factual circumstances of Cran v Camden London Borough Council (supra). The dossier was an orderly, clearly indexed marshalling of the relevant documents and there is nothing to suggest that the Chief Executive did not consider the comments contained in Flag K.

45.In the course of his submissions, Mr Kat emphasized that the intensity of review in cases concerning the loss of career must be higher than in day-to-day administrative decisions. But even accepting that to be so, I am satisfied that the dossier as a whole and the covering minute in particular were both fair and balanced. The applicant was entitled to know what was said against him and that was duly brought to his attention so that he could make representations. He was entitled to be heard and he was heard. It was for the Chief Executive then to decide the merits; that was his exclusive jurisdiction.

The dossier was wrong in fact and law: the 'dishonesty' issue

46.The appropriate punishment to be determined by the Chief Executive was in respect only of Charge A, namely, the applicant's unauthorized removal of $5,000 from his safe.

47.In what I have found to be its 'recommendations' only to the Commissioner, the tribunal said in respect of Charge A that it was 'accepted' that the applicant had acted out of 'stupidity rather than negligence, greed or corrupt motive'. The tribunal further recorded that the applicant maintained - and this had not been disputed by the prosecuting officer - that he had never intended to steal the money.

48.The Commissioner, however, as I have earlier said, took a different view of the nature of the applicant's conduct in respect of Charge A. In his opinion, the removal of the moneys smacked of dishonesty and incompetence; it was aberrant behaviour which grossly violated the fundamental principle that a police officer must be honest and trustworthy.

49.Clearly, the opinions of the Commissioner, if accepted, were going to be persuasive. But it must be stressed that they were opinions which in no way bound the Chief Executive. Indeed, the applicant urged the Chief Executive to give no weight to those opinions. In this regard, the minute placed before the Chief Executive highlights the following 'notable points' made on behalf of the applicant by his solicitors :

"[The Commissioner] has presented an inaccurate and unbalanced view in his report ....; his non-acceptance of the .... tribunal's findings (that Charge A is the least serious of the three offences, that no dishonesty was involved and that there was no intention to steal) is not supported by evidence. ....

[The Chief Executive] should reject [the Commissioner's] report which is inaccurate, unbalanced and unreliable and remit the matter to [the Commissioner] for an award or make an award lesser than compulsory retirement himself." [my emphasis]

50.In short, the Chief Executive had the benefit of the views of both the Commissioner and the applicant. The Commissioner's recommendations were not merely spoken of in the minute but formed an annexure to the dossier. Similarly, the views of the applicant - articulated (in part) in written representations from his solicitors - were not merely spoken of in the minute but, as a complete document, also formed an annexure. It was the duty of the Chief Executive to determine what weight, if any, to give to those contrasting views in reaching his decision.

51.Yes, the Commissioner was forthright in his views. But that cannot be criticized. He commands a disciplined force, one tasked with upholding the law. Equally, the applicant's representations were firmly stated.

52.The applicant, however, has argued that the Commissioner, while entitled to put forward recommendations, was not entitled to state the opinion that the applicant's conduct in the commission of the disciplinary offence encompassed by Charge A involved dishonesty. This is because, to cite the applicant's amended grounds for applying for judicial review :

"If, as it appears, the Chief Executive did or may have accepted or acted upon the Commissioner's view of the Applicant's intent ...., that constitutes a departure from the findings of the tribunal, the body charged by Regs.16, 17 and 23(1) with the duty to find the facts. That is not permitted in law; the Chief Executive's role is confined by the Regulations to deciding on the appropriate penalty on those findings; ...."

53.Despite the energy and ingenuity with which the point was argued by Mr Kat for the applicant, I consider it to be misconceived. As I have said, the comments made by the tribunal were not part of its 'findings' on the charges, they were observations only made in support of its 'recommendations' to the Commissioner concerning appropriate punishment. They were not therefore binding on the Commissioner nor were they binding on the Chief Executive.

54.In this regard I consider the guidance given to the Chief Executive in the covering minute to be correct. The minute refers to the fact that legal advice has been taken and says :

".... since [Department of Justice], which controls criminal prosecution free from interference, determined that there was insufficient evidence to support criminal proceedings against HEYES [the applicant], there should be no slur on HEYES's character. CP's remarks that HEYES 'should consider himself fortunate to have escaped criminal prosecution' should therefore be rebutted and disregarded; focus should instead be on CP's remarks about HEYES' integrity and CP being unable to place HEYES in a position of trust as a result of Charge A."

55.In his comments, the Commissioner had spoken of the applicant being lucky to escape prosecution for his actions. The Chief Executive, however, as can be seen from the minute, was advised to place no reliance on that assertion and instead to 'focus' on the Commissioner's opinions as to the applicant's integrity and capability of holding a position of trust in the Hong Kong Police. I consider that to be correct advice. Dishonest conduct does not necessarily imply criminal conduct. Dishonest conduct is equally conduct which is not straightforward or honourable. It is conduct which may involve deceit or cheating of some kind. Similarly, it is conduct which shows a lack of integrity. In this regard, the New Shorter Oxford Dictionary (4th Ed.) defines the term as follows :

"Of conduct, a statement, etc: not straightforward or honourable; (now chiefly) fraudulent, of the nature of or involving theft, lying, or cheating. Of a person: lacking in probity or integrity, untrustworthy; (now chiefly) apt to steal, cheat, lie, or act fraudulently."

56.In my opinion, the minute prepared for the Chief Executive makes it plain that, if the Chief Executive was to give any weight to the Commissioner's observations on what he saw as the applicant's 'dishonesty', then he was to do so on this broader basis, one related not to any criminal intent but rather to the applicant's integrity as an officer and his trustworthiness.

57.It would not, of course, have been right for the Commissioner in his comments to have come to new findings of fact going to the commission of the offences; to that extent he was bound by the findings of the tribunal. But the comments placed before the Chief Executive related not to new findings of fact but only to a different view of the applicant's moral culpability based on the accepted facts as to what took place.

58.As to the findings of the tribunal, as opposed to its comments or recommendations on moral culpability, the minute advised the Chief Executive in terms which I consider to be safe from material criticism :

".... although [the Commissioner] is bound by the findings (of guilt) made by the .... tribunal in respect of the charges levelled against HEYES, he is not bound by the tribunal's comments (relating to the appropriate awards of punishment, comparison of the severity of the offences etc. which were made after the findings of guilt, after consideration of HEYES' mitigation and during the Tribunal's deliberations) which are not findings made in respect of the charges leveled against HEYES nor are they findings of fact. ...."

59.In further advising the Chief Executive, the minute continued :

"15. Our comments on HEYES' representations (....) are as follows :

	HEYES' contention		Our comments
(a)	....		....
(b)	His application for judicial review [the first one made, not the on which is the subject of this judgment] has pointed out inaccuracies in CP's earlier recommendation i.e. that the Commissioner has no power to change the findings endorsed on the record of proceedings and that there was a clear finding by the Tribunal that no dishonesty was involved. Almost identical inaccuracies appear in this 2nd recommendation.		CP has not changed the Tribunal's findings. CP has accepted the Tribunal's findings of guilt in respect of the charges leveled against HEYES. That no dishonesty was involved is not a fact of the case but a mitigating factor in the recommendation subsequently made by the Tribunal.
(c)	....		....
(d)	In making the report to CE under regulation 27, CP is bound by the findings of fact made by the Tribunal. With regard to Charge A, the Tribunal accepted HEYES did not have the intention to steal. But this was not agreed by the ... Commissioner ... who regarded that the removal of money from the safe contained an element of dishonesty.		CP is bound by the Appropriate Tribunal's findings (of guilt) in respect of the charges leveled against HEYES but not by its comments which were made after the findings of guilt, after consideration of HEYES' mitigation and during the Tribunal's deliberations. That HEYES acted out of stupidity rather than negligence, greed or corrupt motive is not a fact of the case but a mitigating factor in the recommendation subsequently made by the Tribunal.
(e)	....		....
(f)	CP's view that HEYES' removal of the bail money borders on 'theft' is unsupported by evidence. There is no basis for the suggestion that HEYES was lucky to escape prosecution.		The Commissioner commented that HEYES 'should consider himself fortunate to have escaped criminal conviction'. As a matter of fact and law, HEYES need not consider himself fortunate to escape prosecution - there was insufficient evidence to support any criminal proceedings against HEYES. The Commissioner's comment is prejudicial, is not a relevant consideration and should be disregarded by the decision-making." [my emphasis]

60.In light of this advice, I am satisfied that the Chief Executive, in reaching his decision, could have been left in no doubt as to the correct manner in which to consider the representations put forward by the Commissioner and ay the Chief Executivelso by the tribunal, the latter being advocated by the applicant's solicitors as ones which should be accepted b.

Procedural impropriety : legal advice not shown to the applicant

61.The dossier placed before the Chief Executive contained certain legal advice obtained from the Department of Justice. That advice was not forwarded to the applicant prior to being placed before the Chief Executive. On behalf of the applicant, Mr Kat has argued that this constituted a material procedural impropriety. He has relied on what are today well accepted principles that in disciplinary matters fairness demands that a person in jeopardy should know the case against him. As was said by Lord Denning in the Privy Council case of Kanda v. Government of Malaya [1962] AC 322 (at 337) :

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him : and then he must be given a fair opportunity to correct or contradict them."

62.Although Mr Westbrook, who appeared for the Chief Executive, maintained legal professional privilege in respect of the advice received from the Department of Justice, he nevertheless revealed the contents of that advice. One of his reasons was to enable the Court to determine whether, even if the advice should have been disclosed to the applicant (which he denied), that failure in fact caused any prejudice to the applicant.

63.In the event, with the legal advice disclosed, it was not considered necessary to make a foray into the difficult terrain of legal privilege. Counsel concentrated instead on the contents of the advice and the extent to which, if at all, the failure to reveal the advice to the applicant, constituted a procedural impropriety vitiating the proceedings.

64.I have read the advice and frankly fail to see how its non-disclosure - if disclosure was required - can have prejudiced the applicant. Mr Kat, with his persistent ingenuity, has attempted to argue that there were a number of material representations that the applicant could have made if only - by seeing the legal advice - he had been given the opportunity. I have not been persuaded by his submissions.

65.In the legal advice contained in the dossier, Mrs Cabrelli, the advising officer in the Department of Justice, spoke of the 'dishonesty' issue in the following terms :

"... the CE must be advised that the offences of which HEYES was found guilty did not on the Tribunal's judgment, involve dishonesty, did not, as a matter of law, amount to theft and HEYES was not 'fortunate to escape criminal prosecution' - the Department of Justice, which controls criminal prosecution free from any interference (see Article 63 of the Basic Law) determined that there was insufficient evidence to support criminal proceedings against him therefore there can no slur on his character. In so far as the expression '.... fortunate to have escaped criminal prosecution.' casts such a slur it must be rebutted by the CE when considering the report."

66.That portion of the advice was summarized in the minute and it is clear that the representations made on behalf of the applicant and contained in the dossier were to like effect; namely, that there was no form of criminal intent. What cannot be ignored, in viewing the matter with some sense of reality, is that this portion of the legal advice was entirely fair to the applicant. Yes, of course, the applicant could have attempted to make more forensic mileage out of the advice if he had known of it but the issue here is substantive fairness not tactical advantage. I am satisfied that the issue of 'dishonesty' was squarely before the Chief Executive and that the dossier provided clear and correct guidance as to that issue. The fact that the applicant, by not seeing the legal advice - assuming that he was entitled to see it - was denied the ability to guild the lilly cannot, in my mind, be the cause for quashing the Chief Executive's decision.

67.In her advice, Mrs Cabrelli said that the Chief Executive was to be advised to :

".... to focus on integrity and the Commissioner's inability to place HEYES in a position and trust as a result of charge A."

68.Mr Kat has criticized that advice as being 'an impermissible intrusion into the area of decision-making reserved for the Chief Executive. But I do not see that. It was no more than advice on how lawfully the Chief Executive should approach his decision-making responsibility. It was not in any way (disguised or otherwise) an instruction as to the decision the Chief Executive should make.

69.In the circumstances, there is no need for me to determine any question of privilege or to consider whether, in principle, the failure to show the legal advice to the applicant constituted a procedural impropriety. If there was a failure of disclosure, I am satisfied it caused no prejudice to the applicant. I am satisfied that there were no material defects in the legal advice demanding remedy and no points of substance in criticisms of it. That, in my view, determines the matter. Procedural propriety is an aspect of natural justice - it is fairness in action - but there can be no technical breach of natural justice. As Lord Wilberforce said in Malloch v. Aberdeen Corporation [1971] 1 WLR 1578 :

"A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain."

70.This is not to say, of course, that an applicant must prove actual prejudice. This Court, in exercising its supervisory jurisdiction, will be careful not to condone material procedural improprieties. Where there has been such impropriety it will invariably vitiate the proceedings. But where, as is the case here, it is plain that the procedural breach (if it was one) was technical only and does not begin to indicate any possibility of prejudice to the applicant then, I believe, the court should exercise its discretion so that the supervisory jurisdiction of the court does not fall into disrepute. Judicial review is for that reason a discretionary remedy.

Failure to list options

71.When, as in the present case, a matter is referred for consideration of punishment, the Chief Executive is, in terms of the Regulations, given the discretion to make a number of determinations. In this regard regulation 27(3) provides :

" (3) Where any report is forwarded to the Chief Executive under this regulation, the Chief Executive may -

(a) dismiss the inspector; or

(b) if in all the circumstances of the case he considers justice so requires, set aside any finding of an appropriate tribunal and dismiss the inspector if in his opinion such punishment is warranted by any finding which has not been set aside; or

(ba) if in all the circumstances of the case, he is of the opinion that the misconduct of the inspector is serious enough to warrant the compulsory retirement of the inspector, order that the inspector be compulsorily retired with such pension, gratuity or other benefits as he may determine; or

(c) remit the case to the Commissioner and the Commissioner may then award any punishment which he has power to award under regulation 25, but where the Commissioner awards any punishment under this paragraph, regulation 26(2) shall apply as if such punishment had been awarded under regulation 25; or

(d) if he is of the opinion that the inspector does not deserve to be punished but that the proceedings disclose grounds for requiring the inspector to retire in the public interest, without further proceedings require him to retire in the public interest."

72.When in this case the dossier was prepared for the Chief Executive, it did not list all of these options. It has been argued on behalf of the applicant that this failure to specifically advise the Chief Executive of the options open to him and to explain the meaning and intent of those options was a material omission, one which must vitiate the Chief Executive's decision.

73.There is, of course, no obligation in each and every instance to state a litany of all the options open to a decision-maker. It would be wrong in principle to impose such an artificial rule on disciplinary bodies and, as I have said, there can be no technical breach of the rules of fairness. As was said by Sir Robert Megarry VC in McInnes v Onslow - Fane [1978] 1 WLR1520 :

"the concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens."

74.The question therefore is not whether there was a failure per se to list the options in the dossier but whether, in this instance, that failure resulted in a material unfairness. In my view, that could only have occurred if it was shown that the Chief Executive had for some reason failed to consider the options. For one thing is clear, if a range of possible awards are open to a decision-maker, he must be aware of them and, in so far as it is relevant, taken them into account. But was the Chief Executive in the present case ignorant of the options open to him or, if aware of them, can it be demonstrated that he failed to take them into account?

75.Mr Kat, for the applicant, said that the lawful exercise of the Chief Executive's discretion (in considering the options open to him) was not evidenced on the face of the documents contained in the dossier. That is not disputed. He continued by saying that there was no evidence from the Chief Executive to fill the lacuna. In short, there is no affirmative evidence from which it can be demonstrated (directly or by inference) that the options were taken into account. From this, as I understood Mr Kat's submission, it is to be inferred that the Chief Executive must have failed to consider the options and therefore lawfully to exercise his discretion.

76.But I do not think that any such inference can be drawn. The fact that the options open to the Chief Executive were not specifically stated does not mean that he must have been ignorant of those options. Mr Westbrock, for the Chief Executive, stated the principle succinctly when he said that "one must presume that the Chief Executive is aware of his statutory powers and capable of coming to some other conclusion if he disagrees with the punishment recommended." I agree. Those tasked by the legislature with the conduct of administrative duties, including disciplinary duties, must be presumed to know the nature of those duties. In this instance, therefore, it is, I believe, fundamental that the Chief Executive must be presumed to have been aware of the fact that the Regulations gave to him a broad discretion, a discretion to be exercised as he saw fit, having considered all the circumstances. Accordingly, whether, in fact, in this instance he failed to consider the options is not (and cannot) be demonstrated by the fact that they were not listed for him in an advisory paper.

77.Nor do I find substance in Mr Kat's contention that the Chief Executive failed to fill what he has described as a lacuna by giving a specific assurance that he did, in fact, consider the options. The Chief Executive did not give reasons for his decision nor was it argued that he was obliged to do so. If the failure to give reasons was accepted as being lawful I do not see how the lack of reasons can be used as a basis for inferring that the Chief Executive did not fulfil his statutory duty.

78.In the course of his submissions, Mr Kat made reference to the dicta of Mortimer and Nazareth VPP in Ng Wai Sang v Secretary for Justice [1998] 3 HKC 501 in which a failure to consider alternative punishments by a decision-maker was ruled by the Court of Appeal to have rendered unlawful the decision made. But in that case the decision-maker had given reasons and it was clear from those reasons that there had been a failure on his part to lawfully exercise his discretion. In this regard, for example, Mortimer VP said (at 507) :

"The Assistant Commissioner's reasons clearly and fairly reject the option of any sentence involving the applicant's continued service. But, neither he nor the Force Discipline Officer considered any punishment which involved his removal from the Force but without loss of pension. In my view, fairness required that such an award should at least have been considered. It was one of the issues for consideration by the Assistant Commissioner on the appeal before him. The reasons, both of the Discipline Officer and the Assistant Commissioner, do not indicate that such a lesser sentence was ever considered. Procedural fairness requires in this case that such a sentence should have been considered." [my emphasis]

79.Clearly, where it is demonstrated that a decision-maker has failed to take into account matters which he was obliged to take into account then the decision will be quashed as being unreasonable in its public law sense : see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. But the applicant in the present case has demonstrated no such failure on the part of the Chief Executive. I do not see how it can be inferred that, because the Chief Executive has not had certain matters of law concerning his own duties laid out before him in black and white, that he must therefore have been ignorant of them or have ignored them.

Conclusion

80.For the reasons given in the body of this judgment, I am satisfied that the determination made by the Chief Executive was lawfully made. The merits of that determination are not for this Court and it is certainly not for this Court to substitute its own opinion thereby excluding the decision of the person upon whom the legislature has bestowed exclusive jurisdiction. The application for judicial review must therefore be dismissed. As for costs, I see no reason why they should not follow the event. Costs are awarded to the respondent.

Representation:

Mr Nigal Kat, instructed by Messrs Barnes & Daly, for the Applicant

Mr Simon Westbrook, SC, instructed by Department of Justice, for the Respondent