Tam Kwing Yim v. Commissioner of Police and Another

HCAL000097/2002

HCAL 97/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 97 OF 2002

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Coram: Hon Yeung JA and in Court (Sitting as an additional Judge of the Court of First Instance)

Date of Hearing: 4 June 2002

Date of Judgment: 13 June 2002

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J U D G M E N T

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1.The applicant, Tam Kwing Yim joined the police force in 1977 and rose to become a senior police constable in 1995.

2.In January 2001, the applicant was brought before the Appropriate Tribunal (the Tribunal) under the Police (Discipline) Regulations (Cap 232) on three charges.

3.The 1st and 2nd charges related to allegations that the applicant traveled to Macau without giving written notification to his Formation Commander. The 3rd charge was a more serious charge as follows:

Charge (3):

Contravention to Regulation 3 (2)(e) of the Police (Discipline) Regulations, Cap 232.

Particulars:

Senior Police Constable Tam Kwing-yim you are charged that from 9 May 2000 onwards, in Hong Kong, you did fail to be prudent in your financial affairs by incurring unmanageable debts of about HK$ 584,928 that resulted in serious pecuniary embarrassment as evidenced by the making of a bankruptcy order against you whereby your operational efficiency as a Police officer was impaired, contrary to Police General Order 6-01 (8).

4.The applicant pleaded guilty to the 1st and 2nd charges but not guilty to the 3rd charge. He was convicted after hearing.

5.In respect of each of the 1st and 2nd charges, the applicant was awarded a caution. In respect of the 3rd charge, the Tribunal referred the punishment to a Senior Police Officer who on the 5 February 2001 ordered that the applicant be awarded with compulsory retirement with deferred benefits.

6.The Commissioner of Police dismissed the appeals against the conviction and sentence in respect of the 3rd charge on 9 October 2001.

7.The Secretary for the Civil Service confirmed the decisions of the Commissioner of Police on 12 December 2001.

8.On 12 March 2002, the applicant took out the present application for leave to apply for judicial review of the decisions to convict him of the 3rd charge and the award of compulsory retirement.

9.The facts giving rise to the 3rd charge against the applicant could be summarized as follows.

10.The applicant claimed to have obtained $40,000 loans in 1993 to cover his mother's medical bills and funeral expenses. In the following 6 years, the applicant used credit cards for cash advance and personal loans to cover his debts and existing living expenses. After he had exhausted the credit cards in hand, he applied for new credit cards to obtain further cash advance. He also obtained loans from different finance companies to cover gambling debts owed by his wife in Macau as well as university expenditure of his daughter and renovation expenses of his quarters.

11.Up to early 2000, the applicant had incurred a total debt of $584,928. Unable to repay the debt, the applicant petitioned for his own bankruptcy on 28 February 2000. A bankruptcy order against the applicant was made on 9 May 2000.

12.The applicant was then classified as an officer with unmanageable debt. A decision was made on 3 November 2001 to disarm the applicant pending the disciplinary hearing and he was further prohibited from access to public money. The applicant was then assigned to duties such as Report Room Reserve and he was considered to be unable to execute the full range of constabulary duties.

13.In convicting the applicant, the Tribunal took the view that the applicant was unable to live within his means. Despite his inability to pay his debts, he continued to take on more debts which were clear evidence of financial imprudence. The bankruptcy order against the applicant was also irrefutable evidence of his serious pecuniary embarrassment.

14.The Tribunal also accepted the evidence of a witness that the applicant had not been completely truthful during investigation on the circumstances in which his debts were incurred. The manner in which he had conducted his financial affairs also raised grave doubts as to his honesty and integrity. As his indebtedness would preclude him from taking up certain posts, the applicant was considered to be not as operationally efficient as other officers of the same rank.

15.It was not disputed that the applicant had incurred unmanageable debt of over $550,000 which resulted in serious pecuniary embarrassment. It could not be disputed that the applicant had not been prudent in his financial affairs. The circumstances in which the debts were incurred fully justified such conclusion.

16.However it was suggested that the Police General Order 6-01(8) "the PGO" contained 2 elements, i.e. serious embarrassment which led to impairment of operational efficiency. The applicant suggested that it was not clear how his operational efficiency was impaired. He emphasized that according to a M. 20, he was considered to have performed satisfactorily in his rank and there was nothing to indicate that his operational efficiency was impaired.

17.It must be pointed out that it was never alleged against the applicant that he was unable to discharge his duties properly despite his financial predicament. The impairment to his operational efficiency arose because the extent of his indebtedness made it necessary to limit his duties to specific postings and hence he was unable to execute the full range of constabulary duties.

18.The same officer who prepared the M.20 said the following in his statement dated 3 January 2001:

"He is being classified as an officer with unmanageable debt and should be prohibited from being deployed to duties with access to public money in accordance with CSR 458. Hence I gave instruction to disarm SPC 13079 and limited his duties to specific postings prohibiting from access to public money. That is, he cannot execute the full range of constabulary duties. He has since been discharged duties such as Report Room Reserve."

19.The Tribunal never suggested that the applicant was unable to discharge his duties properly but for the decision to limit his duties. In the Award, the Tribunal mentioned that the applicant "had continued to perform his duties in a positive and responsible manner while he had been under investigation and during the period leading up to these proceedings." The Tribunal "remembered that his indebtedness would preclude him from taking up certain posts that he should have been eligible for" which was the sole reason for suggesting that the applicant was not operationally efficient.

20.It was suggested that the reference to "certain posts" was too vague to enable the applicant to properly address to. It was also suggested that the failure to disclose M.20 in good time also constituted unfairness.

21.A police officer of course has a wide range of duties. His supervising officers would assign him to such duties as considered appropriate, depending on operational needs and his personal attribution. References had been made to disarming the applicant and preventing him from access to public money. They were mentioned as examples only and not meant to be exhaustive.

22.In my view, it was neither necessary nor possible to identify all the posts that an officer suffering from unmanageable debt should avoid as it depended on the circumstances of individual cases.

23.It was important to bear in mind that any officer with unmanageable debts needed to be closely monitored to avoid any possible chance of compromising his integrity. It was this aspect of the matter which impaired his operational efficiency.

24.The Court of Appeal in Leung Fuk Wah Oil v Commissioner of Police CACV 2744 of 2001 observed at page 29 of the judgment:

"Serious pecuniary embarrassment is treated seriously because it is regarded as a circumstances which impairs efficiency. Imprudence is necessary in order to exclude financial problems due to unforeseen and compassionate circumstances which the Force Policy clearly recognized should be treated sympathetically. The rational for making this a disciplinary offence is discernable from various internal directives of the Police.

'Force Policy on the Management of Indebtedness' (the Force Policy') is an internal directive of the police. It is Annexure 'A' to the Instructions. The Force Policy supports the construction placed on PGO 6-01(8). It provides, among other things, that:

"The force exists in a society where being in debt is acceptable and many legitimate sources of credit are available. The existence of debts amongst Force members in itself is not a cause for concern but it becomes a problem where debts become unmanageable....

2. When an officer has an unmanageable debt......, the potential for his duties performance to suffer and/or for his integrity to be compromised is high. The pressure involved may place stress on him to the extent that he can no longer concentrate fully on his duties and/or the need to obtain money reaches such a level as to convince him to turn to corruption or other illegal means to meet that need. Every effort must be made to avoid such circumstances arising.

4. A police officer shall be temperate and prudent in his financial affairs. Serious pecuniary embarrassment from whatever cause, is regarded a circumstances which impairs his efficiency and is not acceptable. It is an officer's responsibility to ensure that he lives within his means and does not incur expenses which he is unable to afford.

Para. 21 of the Instructions further provides that :

'Officers with unmanageable debts or debts originating from an unauthorized source may be in a position where they can be compromised and accordingly they should be subject to close supervision. In each case Formation Commanders should examine whether the officers are suitable to fill or to remain in sensitive posts....'

The Hong Kong Police, playing such a vital role in the enforcement of law and order in this territory, obviously, and rightly, requires the highest personal standard from its officers. This means that they must be prudent in their financial affairs so that they may not be in a situation of serious financial embarrassment."

25.I respectfully endorse the view of the Court of Appeal. In view of the undisputed evidence that the applicant had incurred unmanageable debt which resulted in serious pecuniary embarrassment and that he must had been imprudent in his financial affairs; in view also of the necessary steps to limit his duties to specific postings to avoid any chance of compromising his integrity, the failure to specify the posts that the applicant must avoid and the non-disclosure of M. 20 was not relevant at all.

26.The Court of Appeal in Leung Fuk Wah Oil (supra) also rejected the "two-pillars" ingredients of a charge under the PGO laid down in Ng Kam Chuen v Secretary for Justice [1999] 2 HKC 291. At page 31 of the judgment, the Court of Appeal commented:

"Serious pecuniary embarrassment is proved, for example, by the police officer having unmanageable debts. Imprudence is proved by the circumstances in which these debts occurred. However, as serious pecuniary embarrassment is regarded as a circumstances impairing efficiency, it is not necessary to adduce further evidence on the impairment of efficiency.

No useful purpose is served by the arguments that notwithstanding the financial problems of the police officer, he still may be discharging his duties efficiently."

27.The decision of the Court of Appeal is of course binding on me.

28.Complaints was made to the wordings of the 3rd charge referring to the period from 9 May 2000 onwards when there was evidence to the effect that prior to that day, the applicant was having a very good service record.

29.While the charge could have been better worded to reflect the situation that the unmanageable debts were in fact incurred prior to 9 May 2000, there could no doubt that the applicant was at all material times fully aware of the allegations against him. For reasons that had been canvassed, the fact that the applicant had a good service record prior to 9 May 2000 was quite irrelevant. In any event, the Tribunal was fully aware of his good service record.

30.In judicial review proceedings, we are not concerned with technical unfairness.

31.On the evidence that could not be disputed, the applicant was rightly convicted of the 3rd charge. The award for the offence was not Wednesbury unreasonable. There was no valid basis upon which the court could disturb the findings of the Tribunal or that of the Commissioner.

32.Counsel for the Commissioner also suggested that the applicant was out of time when Regulation 15 of the Police (Discipline) Regulations only permitted appeals by way of written petition to the Commissioner with no further appeal to the Secretary for Civil Service. In the circumstances, time should start to run from the dismissal of the appeal by the Commissioner on 9 October 2001 and not from the confirmation of the decision by the Secretary for Civil Service on 12 December 2001. It was also suggested that the Secretary for the Civil Service had been wrongly made a party to the proceedings.

33.Counsel for the applicant conceded that the Police (Discipline) Regulations did not provide for any further appeal from the decision of the Commissioner, but he reserved his position on the provisions under the Civil Services Regulations. In any event, he suggested that the applicant had given a reasonable account for the delay of a few months.

34.In view of the earlier findings by the court, it was not necessary to deal with the matters raised by counsel on the issues of delay and the identities of the parties.

35.Suffice it to say that on the merits of the application, the applicant had not reached the threshold required for leave to apply for judicial review. There was no arguable case and there was nothing that could support an arguable case.

36.On the evidence that could not be disputed, the conviction on the 3rd charge was inescapable and the sentence was not unreasonable to justify interference by the court.

37.The application must be dismissed and I so order.

38.There is also an order nisi that the applicant is to pay the respondents the costs of the application to be taxed if not agreed.

Representation:

Mr Anthony Chan instructed by Messrs Clarke & Kong for the Applicant.

Ms Nancy Kwok, GC of Department of Justice for the 1st and 2nd Respondents