Kam Wai Hung v. Secretary for Justice
Read the full judgment text of HCAL 2546/2001 on BabelCite. This High Court CFI judgment was delivered on 23 April 2002.
1. At all times material to this application for judicial review, the applicant was an officer in the Hong Kong Police serving as a police constable.
Cites 2 cases
|
HCAL002546A/2001 HCAL 2546/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST ____________
____________ Coram: Hon Hartmann J in Court Dates of Hearing: 10 and 12 April 2002 Date of Handing Down Judgment: 23 April 2002 _______________ J U D G M E N T _______________ Introduction 1.At all times material to this application for judicial review, the applicant was an officer in the Hong Kong Police serving as a police constable. 2.In August 2000, the applicant was charged under the Police Discipline Regulations, Cap. 232 ('the Regulations') with a number of contraventions of discipline. There were 25 such charges and the applicant pleaded guilty to them all. The tribunal which conducted the disciplinary hearing found that the appropriate sentences (or awards, as they are called) should range from a caution to a severe reprimand and that the applicant should be formally warned that, should he commit any further disciplinary offences over the course of the following year, he faced the possibility of dismissal from the force. 3.When, however, in terms of the Regulations, the awards were reviewed by the Force Discipline Officer, that officer took a more serious view of the nature of the offences. Indeed, he was of the view that the bulk of the offences merited the applicant's removal from the force. Accordingly, the awards already imposed were changed and it was ordered that the applicant be subject to compulsory retirement with deferred pension benefits. 4.It is the lawfulness of this decision to increase the awards - a decision made on 8 March 2001 - which is challenged by the applicant who seeks an order of certiorari to bring up and quash the decision and an order of mandamus to compel the Commissioner of Police to re-instate the applicant as a police constable. The nature of the charges 5.All the charges brought against the applicant alleged that he had in an unauthorized manner and/or for unauthorized purposes gained access to the police computer system (known as the Enhanced Command and Control Computer System). Expressed broadly, it was alleged - and accepted - that the applicant had gained access to this system in order to obtain information for private purposes, specifically to assist his brother who was operating a debt collecting agency. 6.The charges, while all alleging the same essential conduct, fell into three categories and the awards were imposed in accordance with those categories. They may be summarised as follows :
The awards made 7.The tribunal which conducted the disciplinary hearing determined that, in addition to a formal warning of dismissal, the appropriate awards should be as follows :
8.In accordance with the Regulations, the awards were considered by a senior officer who confirmed them. 9.When, however, the awards were placed before the Force Discipline Officer (an officer appointed by the Commissioner to oversee matters of force discipline), he was of the view that the appropriate awards should be :
The process of assessing the appropriate awards 10.The Regulations prescribe a three-stage process for the imposition of an appropriate award upon a junior officer (such as a constable) who has been found guilty of disciplinary offences. 11.In the first instance, upon a finding of guilty, the tribunal before whom the disciplinary proceedings have taken place, is obliged to consider appropriate punishment. If it considers that a punishment should be imposed and that it has jurisdiction to impose an appropriate punishment, it shall proceed to announce its award. In this regard, regs.11(2) and (3) read :
12.In the second instance, within 14 days of the tribunal announcing its award, a senior officer (that is, an officer of or above the rank of chief superintendent) is obliged to consider that award and either confirm or vary it. In this regard, reg.14(1)(b) reads :
13.There shall, however, be no substitution of a greater award unless the officer being punished (the defaulter) is first able to make representations. In this regard, reg.14(3)(a) reads :
14.In the third instance, the Force Discipline Officer must himself consider the award that has either been confirmed by the senior officer or varied by that officer. In this regard, reg.14(4) provides :
15.The Force Discipline Officer possesses the same powers as a senior officer to confirm or vary any award. Reg.14(5)(b) provides that :
16.But, as with a senior officer, the Force Discipline Officer shall not substitute a greater award than one already imposed unless the officer being punished is first able to make representations. Reg.14(6)(a) states :
17.That the three-stage process is a 'self-contained' process is evidenced in my view by the provisions of reg.15(1) which are to the effect that an appeal against any punishment imposed is to be made only after the Force Discipline Officer has announced his determination. Reg.15(1) - headed 'Appeals by junior police officers' - reads :
The challenge of procedural unfairness 18.On behalf of the applicant, Mr Duncan has challenged the lawfulness of the decision made by the Force Discipline Officer on three grounds. At this juncture, I should state that I found little of substance in the first two grounds either considered in the singular or together. However, the third ground - one of procedural unfairness - has caused me concern. 19.Under what I have described as the three-stage but nevertheless 'self-contained' process of determining an appropriate punishment for a junior officer, the Force Discipline Officer has the power to confirm or to vary any award made by either the tribunal or the senior officer. That, of course, means that he must review the papers. If he decides to exercise his powers under reg.14(5)(b)(i) or (ii) by determining a punishment when no punishment has earlier been determined or by simply confirming the punishment already determined by the tribunal and/or the senior officer then clearly, having reviewed the papers, he must make a final determination himself. 20.But what if he considers, on a review of the papers, that a greater punishment may be appropriate? Patently, if this is the case, he cannot proceed to a final determination. This is because reg.14(6)(a) directs that he shall not substitute any greater punishment "without first calling on the defaulter to show cause why such award should not be increased". Put simply, he is directed by the Regulations, before coming to any final determination, to give the junior officer (the defaulter) the opportunity to be heard on the matter. 21.The Regulations impose a relatively straightforward duty on the Force Discipline Officer. On a review of the papers, he must first decide whether he is concerned that the awards (if already imposed) may not be great enough. If it is his provisional view that they may not be great enough then he should, at that stage, take his deliberations no further. He must then advise the junior officer of his provisional view and give to that officer the opportunity to make representations. Fairness dictates that, until an opportunity to make representations has been given, the Force Discipline Officer must keep an open mind on the matter and be seen to be doing so. 22.To assist a junior officer to make relevant representations, the Force Discipline Officer may make reference in broad, suitably neutral terms to matters which have led him to his provisional view. But what he must not do is to so state his concerns that it is apparent that he has, in fact, progressed beyond a provisional view and has, for all practical purposes, already determined the matter. The right to make representations enshrined in reg.14(6)(a) becomes no more than a procedural ornament if the person enjoined to receive those representations does not have an open mind on the matter. 23.The wording of reg.14(6)(a) is to the effect that the junior officer should be given an opportunity to show cause why the punishment should not be increased. But that gives no licence to the Force Discipline Officer to say : "I have reached a view on this. Now you try to dissuade me from that view." 24.Lord Denning summarized the fundamental principle of fairness in administrative matters when he said in Kanda v Government of Malaya [1962] AC 322 at 337 :
25.Impartiality does not exist if a tribunal determining an administrative matter has, before hearing one of the parties, determined the matter in respect of that party. As was said by Viscount Simon LC in General Medical Council v Spackman [1943] AC 627 (at 636) :
26.The principle was further stated in Ridge v Baldwin [1964] AC 40 (at 113) when Lord Morris said :
27.Fairness, of course, must be seen to be done : that is fundamental. It does not assist a tribunal to protest that it did, for example, keep an open mind when a reasonable, objective viewing indicates a real likelihood that it did not. In this regard, for example, see Selvanathan v General Medical Council (The Times, 26 October 2000) :
28.In the present case, after the papers had been reviewed, a memorandum was sent to the applicant on behalf of the Force Discipline Officer. That memorandum, dated 28 February 2001, after a brief formal introduction, reads :
29.Even having regard to the robust language often used in disciplinary forces, that is strong stuff and quite patently, in my view, indicates a position firmly taken on the nature of the applicant's conduct. But it may not - of itself - indicate a real likelihood that the Force Discipline Officer has already made up his mind on the issue in question, namely, the appropriate punishment. The memorandum, however, continues :
30.In my judgment, a reasonable observer, on reading those words, would conclude at the very least that there was a real likelihood that the Force Discipline Officer had already determined what the appropriate punishment should be. But if there was any doubt, the memorandum continues :
31.The memorandum concludes :
32.Having received representations, on 12 March 2001 a further memorandum was sent to the applicant. This was written on behalf of the Commissioner and reads :
33.As Mr Duncan, for the applicant, pointed out, the statement appearing in that extract from the memorandum that the Force Discipline Officer "stands by his decision" can, in the circumstances, mean only that, on his original review of the papers before he received the applicant's representations, the Force Discipline Officer had determined what was the appropriate award and had not been dissuaded from that determination. I agree; I do not see how it can mean anything else. In short, it shows that the applicant was condemned before he was able to be heard. 34.As such, in my judgment, the decision of the Force Discipline Officer cannot be allowed to stand. The exercise of discretion 35.Judicial review is discretionary and I have considered whether that discretion should be employed in the present instance. But I do not think it is an appropriate case. As was said by Lord Hodson in Ridge v Baldwin supra (at 128) :
In any event this case is not as plain as a pike-staff. The tribunal which conducted the disciplinary hearing did not think it necessary to make an award which resulted in the removal of the applicant from the Hong Kong Police nor did the senior officer. 36.Having resolved that the decision to remove the applicant from the Hong Kong Police made in March 2001must be set aside , nothing is served by an extensive examination of the applicant's two remaining grounds of challenge. As I have already indicated, I did not find either of these grounds persuasive. However, should this matter go further, something briefly should be said of them and my reasons for finding that they have no substance. The challenge of delay 37.In the present matter, it was on 17 October 2000 that the tribunal which conducted the disciplinary hearing found the applicant guilty of all charges (on his own plea) and imposed the awards of which earlier mention has been made. In terms of reg.14(1) of the Regulations, a senior officer was obliged to confirm or vary those awards within 14 days. A senior officer duly confirmed the awards and communicated that confirmation to the applicant on 19 October 2000, just two days later. 38.Having done so, it was then necessary for the senior officer to forward the relevant papers (the Defaulter Report) to the Force Discipline Officer. In this regard, I repeat the wording of reg.14(4) :
It will be seen that reg.14(4) does not direct a period of time within which the papers are to be despatched by the senior officer. Nor do the Regulations direct a period of time within which those papers are to be received by the Force Discipline Officer. In this latter regard, reg.14(5) says only that : "within 14 days of the receipt by him of a Defaulter Report forwarded to him under paragraph (4)" the Force Discipline Officer shall confirm or vary the awards. 39.On behalf of the applicant, Mr Duncan has submitted that, although reg.14(4) does not direct a period of time within which the papers are to be despatched by the senior officer and/or received by the Force Discipline Officer, having regard to the direction in reg.14(1) that the senior officer is to confirm or vary the awards within 14 days of them being made by the tribunal and is to forward the papers to the Force Discipline Officer, it is to be implied that the legislature intended that the papers were to be forwarded 'at about the same time' as the senior officer confirmed or varied the tribunal's awards. 40.This implication, Mr Duncan has submitted, is to be drawn from the clear intent of the regulatory scheme that there should be speed in the disposal of disciplinary matters. But while the legislature has clearly intended that disciplinary matters should be determined with due diligence, I do not think that the implication that Mr Duncan advocates is to be drawn from a plain reading of the regulations. If the legislature wished to impose specific time limits on the transfer of papers from a senior officer to the Force Discipline Officer, it could have done so. Specific time limits are expressed elsewhere. 41.In the absence of a stated time limit, I believe that it is necessary to seek assistance from s.70 of the Interpretation and General Clauses Ordinance, Cap.1, which reads :
42.What constitutes unreasonable delay is to be determined by the relevant circumstances seen in the light of what is to be taken as the intent of the relevant statutory or regulatory scheme. 43.In the present case, it appears that the papers wound a fairly leisurely course from the senior officer to the Force Discipline Officer through various intermediatory officers and was only placed before the Force Discipline Officer on 20 February 2001. This was, almost to the day, four months after the senior officer had made his determination. Mr Duncan has argued that, in the present circumstances, this constitutes ' unreasonable delay' and thereby constitutes a procedural impropriety which renders the whole process unlawful. 44.Although there was no evidence under oath or affirmation to this effect, Mr Duncan has said that the applicant was factually misled by the tribunal to believe that the punishments imposed would be reviewed once only, that is, by a senior officer. When the senior officer confirmed the punishments, the applicant believed that was an end to the matter and was fortified in that belief by the fact that he heard nothing for a period of four months. Notification that an increased punishment was intended came to him, therefore, as a bolt out of the blue. 45.Quite why it took so long to send the papers to the Force Discipline Officer has not been fully explained in the papers before me. On the face of it, the delay certainly appears to be open to criticism. The question, however, is whether the delay is such that it amounts to an abuse of power. In an earlier judgment - Wong Wai Tak v Secretary for the Civil Service (unreported) HCAL 2335/2000 the same issue fell for determination, also in the context of police disciplinary proceedings. In that judgment, I cited the dicta of May LJ in R v Chief Constable of the Merseyside Police, ex parte Calveley and others [1986] 429 at 439 :
46.Delay may be criticised therefore but unless it constitutes an abuse of power it should not constitute a ground for judicial review. In Wong Wai Tak (supra) the delay was considerably longer than in the present case and I did not find it there to be an abuse of process. 47.Mr Duncan has pointed to the fact that in the present case the offences took place between 1995 and 1996 and that the applicant was first interviewed in July 1997. But that I do not consider to be relevant. There may be many reasons why a process of investigation takes a long time and I have had no evidence placed before me concerning that matter. In my judgment, what is relevant is the overall time taken in the disciplinary proceedings. In this regard, the applicant was charged on 23 August 2000; the hearing commenced about a month later and was concluded on 17 October of that year. The senior officer confirmed the awards within two days and then a delay of four months took place before the Force Discipline Officer considered matters. His decision was made on 8 March 2001. In total, therefore, the proceedings took less than 7 months. That, in all the circumstances, while, as I have said, open perhaps to valid criticism, is not of such magnitude as to amount to an abuse of process. The failure by the Force Discipline Officer to make his determination within 14 days 48.The Force Discipline Officer received the papers on 20 February 2001. On 7 March, he wrote to the applicant inviting him to show cause why the awards made against him should not be increased and on 8 March he determined to increase the awards. In terms of reg.14(5), he had 14 days within which to complete this process. The process, however, took 16 days : two days in excess of that stipulated. 49.On behalf of the applicant, Mr Duncan has submitted that the plain intent of the Regulations is that there should be strict compliance with the time limits and that the failure to do so in this instance - even if only by two days - amounts to a material procedural impropriety. 50.This same issue has come before me on a previous occasion in Leung Fuk Wah Oil v Commissioner of Police (unreported) HCAL 371/2001. I do not intend to revisit my analysis of the relevant principles set out in my judgment in that case. They are plainly enough stated. Suffice to say, I found that strict non-compliance with the time limits laid down in reg.14 would not vitiate the disciplinary proceedings. In this regard, I said :
51.Mr Duncan has attempted to distinguish my decision in that case on the basis of a different factual context in the present case. But whatever the factual context, the question to be asked is whether the delay has resulted in material prejudice. In the present case, I can find no ground to accept that a delay of two days has caused any prejudice whatsoever to the applicant. The contention that there should be no fresh determination 52.Although not requested in the notice of application, Mr Duncan has argued that there should be an order of prohibition preventing any Force Discipline Officer from re-determining the matter of appropriate awards. The applicant, he has said, cannot expect now to be treated fairly; a fresh determination will, in his eyes, be in form only. In the circumstances, there should be an order restoring the applicant to the force subject only to the punishments imposed by the tribunal and the senior officer, punishments that fall short of removal. 53.But, in my judgment, a form of prohibition would not be appropriate. Fairness may perhaps dictate that another Force Discipline Officer should look at the matter and if that was done there is no reason to think it would not be done fairly. 54.It is to be emphasised that this Court supervises the lawfulness of administrative process, it does not, through the back door, decide the merits of a matter or assume a statutory responsibility given to others. Conclusion 55.In the circumstances, there will be an order of certiorari to bring up and quash the decision of the Force Discipline Officer made on 8 March 2001. There will also be an order of mandamus re-instating the applicant. I do not see how, if he remains a civilian, his appropriate punishment can either in law or in equity be re-determined. The equity (or fairness) issue really speaks for itself. It would be artificial to think that the officer who determines an appropriate award in terms of reg.14(5) will not know the status of the applicant. If he remains out of the force, that may be perceived as itself constituting a strong argument to leave him there, an argument of course that is based on the procedural history of this matter and has no relevance to the merits. I will not, however, make any order that purports to prevent the decision quashed being lawfully re-determined. 56.As for costs, there will be an order for costs in favour of the applicant.
Representation: Mr Peter Duncan, instructed by Messrs Liau, Ho & Chan, for Applicant Mr Nicholas Cooney, instructed by Department of Justice, for Respondent Appeal by the Respondent to Court of Appeal dismissed. Please refer to CACV264/2002 dated 13 February 2003 |
Cases cited in this judgment
Further hearings and rulings under HCAL 2546/2001