Read the full judgment text of HCAL 003672/2001 on BabelCite. This High Court CFI judgment was delivered on 3 July 2002 before Deputy High Court Judge Andrew Cheung.
Administrative law – judicial review – disciplinary proceedings against police officer – conduct calculated to bring the public service into disrepute – Police (Discipline) Regulations, Cap 232, regulation 3(2)(m) – Police General Order 6-01(8) – Civil Service Regulations 455 and 458 – financial imprudence – pecuniary embarrassment – bankruptcy petition – margin trading by cohabitee – Wednesbury unreasonableness – proportionality of penalty – non-disclosure of documents in internal appeal – procedural fairness – discretion to grant relief – Applicant was a police constable who between 1998 and 1999 repeatedly borrowed money far beyond his means, lending approximately HK$140,000 to his unemployed girlfriend to finance highly speculative margin trading activities, accumulated debts of about HK$512,795 with monthly repayments of HK$30,155 against salary of HK$17,510, and filed a bankruptcy petition on 1 March 2000 – charge under regulation 3(2)(m) of 'conduct calculated to bring the public service into disrepute' – whether the Adjudicating Officer's decision was Wednesbury unreasonable – held, no – following Leung Fuk Wah Oil v Commissioner of Police, proof of serious pecuniary embarrassment and financial imprudence suffices; impairment of efficiency is not a mandatory element – whether regulation 3(2)(m) on its proper construction requires proof of impairment of efficiency – held, no – efficiency is only one of the qualities the public expects of police officers; financial imprudence may, depending on facts, reflect on general character and suitability and lower the Force's reputation – whether the penalty of dismissal was disproportionate or perverse – held, no – court's role on judicial review is supervisory, not appellate, and the penalty was not 'altogether excessive and out of proportion to the occasion' (per Lord Denning MR in R v Barnsley Council, ex parte Hook) – whether non-disclosure of 21 pages of material to the Deputy Commissioner in the internal appeal rendered that decision procedurally improper – held, yes – following Leung Fuk Wah Oil and Chan Tak Shing (which followed Kanda v Government of Malaya), the material ought to have been disclosed as a matter of fairness – whether discretion should be exercised to quash – held, yes – the undisclosed material included a sympathetic memo from a senior inspector recommending suspension of the 'Order to Resign' for 12 months and a factually incorrect statement by the Force Discipline Officer, and unlike Leung Fuk Wah Oil, it could not be said disclosure 'would not have made the slightest difference' – there was a 'risk' of prejudice sufficient under Chan Tak Shing, and on the facts actual prejudice – decision of Deputy Commissioner dated 20 July 2001 quashed, together with the Commissioner's subsequent 'Order to Resign' and dismissal decisions – each side to bear its own costs; Applicant's own costs to be taxed in accordance with the Legal Aid Regulations.
Legal issues: Wednesbury unreasonableness of conviction under regulation 3(2)(m) · Proportionality of the disciplinary penalty of dismissal · Procedural impropriety from non-disclosure of documents in internal appeal
Outcome: Judicial review granted in part. The decision of the Deputy Commissioner of Police dated 20 July 2001 dismissing the Applicant's appeal was quashed, as were the subsequent decision of the Commissioner of Police imposing the 'Order to Resign immediately without salary in lieu of notification' and his decision of 26 July 2001 dismissing the Applicant with immediate effect. The Applicant's appeal against conviction and sentence remained outstanding to be proceeded with. The two other grounds of challenge (Wednesbury unreasonableness as to conviction and proportionality of penalty) were rejected.
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