Chu Lam Wan v. Commissioner for Police

HCAL000101/1997

1997, No.AL101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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Coram: The Hon Mr Justice Stone in Court

Dates of Hearing: 13 and 16 February 1998

Date of Delivery of Judgment: 24 February 1998

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J U D G M E N T

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1. This is an application for judicial review launched by the Applicant, a former police constable employed by the Hong Kong Police, against the Commissioner of Police, the Respondent herein. Leave to apply for judicial review was granted on 13th November 1997, whereby the Applicant was given leave to apply to quash the decision of the Commissioner of Police, dated 12th August 1997, to dismiss the Applicant's appeal against a decision of the Force Disciplinary Officer, and to uphold an award of "Compulsory Retirement" against the Applicant. This, then, is the judgment consequent upon this substantive application.

THE FACTS

2. The relevant facts are in short compass, nor do I think that there is any real dispute over the sequence of primary events. The Applicant, PC 17858 Chu Lam Wan, pleaded guilty to ten (10) counts of Contravention of Police Orders, contrary to Regulation 3(2)(e) of the Police (Discipline) Regulations, Cap 232. Given the plea of Guilty to the charges as laid, and the lack of criticism of any aspect of the actual disciplinary procedure, at least at the Adjudicating Officer level, there is, I think, no necessity to deal with the charges in any detail; suffice to say that, during the calendar period between 3rd March 1993 to 19th October 1993, when the Applicant (who had joined the Force in 1981 and who hitherto had an unblemished record) was attached to the MTR Division as a Police Constable cook, he conducted part-time inquiry work for a private investigation agency, for which services he admitted receiving HK$5,900, 60% of which was to cover expenses whilst the remainder was to be his own remuneration.

3. With regard to the plea of Guilty to the first nine charges of taking part in an investigation other than in pursuance of his duty, the Applicant was awarded a Reprimand, suspended for 12 months, whilst for the remaining charge of engaging in outside work, the Adjudicating Officer made an award of Reprimand.

4. I pause to note here that, in my view, the record of proceedings before the Adjudicating Officer, and the award consequent thereon, dated 17th June 1997, provides an admirably concise and balanced account of events and of the reasoning behind the determination; and, as I have indicated, no criticism was ventilated in this Court by Mr Tolliday-Wright, on behalf of the Applicant, in terms of the conduct and content of these initial proceedings.

5. The Police (Discipline) Regulations, Cap 232 essentially provide a four tier structure to deal with "defaulters", the statutory interpretation of which is that of a police officer charged with a disciplinary offence. Consequent upon the award made by the appropriate disciplinary tribunal, to the terms of which I have referred above, the matter then moves to a senior police officer for a confirmation or variation of finding or award (Regulation 14), who, after dealing with the matter and communicating to the defaulter the action taken by him, then forwards what is known as a 'Defaulter Report' to the Force Discipline Officer (Regulation 14(4)). The Force Discipline Officer, therefore, represents the third stage of the disciplinary process, and within 14 days of the receipt from the Senior Police Officer of the Defaulter Report, it is open to him to amend the award made against the defaulter (Regulation 14(5)(b)), although it is not open to him to substitute a greater award "without first calling on the defaulter to show cause why such award should not be increased" (Regulation 14(6)); and thereafter he must communicate to the defaulter the action he has taken. The fourth and final stage involves the Commissioner of Police, and it is this which provides the focus of the present judicial review. Within 14 days of the announcement of the Force Disciplinary Officer's decision, the defaulter then has 14 days to which "to appeal in writing to the Commissioner by petition which shall contain such representations as may be relevant to the appeal" (Regulation 15(1)).

6. So much for the legislative framework, and I am grateful to Mr Kwok, who appears on behalf of the Commissioner, for his careful elucidation of the position, together with his very proper willingness to assist the Court in terms of additional background information. One of these pieces of background information is a series of Internal Police Force Memoranda (marked P1) which illustrate the complete sequence of events as the file regarding this particular Applicant passed over the desks of various senior police officers. In essence, what happened was this.

7. The decision of the Adjudicating Officer, dated 17th June 1997, was examined by the Senior Police Officer on 23rd June 1997, who in turn was satisfied, upon perusal of the papers, that the proceedings had been properly conducted; his conclusion was a confirmation of the finding and awards on all the ten charges. From the Applicant's point of view, no criticism is levelled at proceedings up to and including this second stage; however, it was at this point, it was submitted, that matters began to go awry.

8. The Senior Police Officer's memo did not, apparently, go direct to the Force Disciplinary Officer, but went via another senior officer, who appears to have been the Regional Commander for Kowloon East. This is memo "M3", which, as matters transpired, occupied a central place in the argument. Paragraphs 3 and 4 of memo "M3" read as follows :

"3. The case revolved around the fact that the defaulter assisted a private investigation agency to carry out various enquiries. In return, the defaulter received $5,900. By his own admission, the defaulter claimed that 60% was to cover out of pocket expenses whilst the remaining 40% was his own remuneration. These offences are very serious in nature, in that the defaulter made use of his police knowledge to conduct investigation and then passed the results to an interested party in return for a financial consideration.

4. Procedurally, one cannot fault the AO, or indeed the SPO. However, it must be said that the punishment was manifestly inadequate to reflect the gravity of the offences. Mindful of the provision in the [Force Procedural Manual], I have to state the foregoing or else it would be construed that I have agreed with M.2. I strongly recommend show cause action be taken in accordance with Reg.14(6)(a) of Police (Discipline) Regulations, Cap 232, Laws of Hong Kong."

9. The file was then passed to the office of the Force Disciplinary Officer, wherein a series of memos appear. Memo "M5" reads in particular as follows :

"3.h.i. The first nine charges alleged that the defaulter carried out private enquiries into traffic accidents, industrial accident and theft of vehicle on nine occasions between Feb. 1993 and Oct. 1993. It was indicated in the brief facts that the defaulter received at least $5900 as remunerations for the investigative work he conducted. As a police officer, undertaking private investigative work other than in pursuance of his duties is a serious breach of order and the nature of this type of transgression cannot and should not be taken lightly. In this regard, I agree entirely with the sentiments expressed at [Memo] M.3. In light of the foregoing comments, I opine that the present awards given by the [Adjudicating Officer] are far too lenient and not in line with the level of penalty for this type of cases.

ii. Although I am mindful that during the period when the investigative work was carried out the defaulter was posted as a PC Cook in MTRDIST, this does not exonerate the defaulter from his misconduct since the kind of work he undertook posed serious conflicts of interest with his official duties.

iii. When considering the level of awards for this particular case, I must point out that in the two previous discipline cases, the two defaulters, namely, PC... and PC... were awarded 'Dismissal' and 'Ordered to Resign'. They worked in traffic formations when they conducted private enquiries in traffic accidents. In the present case, the degree of conflicts of interest is not as blatant as in the previous two cases. [Please refer to folio (10) for the comparison among the three discipline cases.] Based on this observation and coupled with his relatively long and good service and clear disciplinary record, I recommend that the award for each of Charges A-J be upgraded to 'Compulsory Retirement with Benefits'."

And thereafter there followed the appropriate recommendation.

10. Lastly, another Memo, "M6", further reads :

"2. Another defaulter from the Private Investigations Case. Officers involved in such misconduct should leave the Force ( the question to be resolved is the award. In this case the officer is on the old pension scheme. Had he been on the new scheme then an 'Ordered to Resign' would have given him accrued leave and a pension. Under the circumstances (i.e. less serious than the previous two cases) I believe 'Compulsory Retirement' to be an appropriate award."

11. This led, in turn, to agreement by the Force Disciplinary Officer (at Memo "M7") that the award for all charges be increased to Compulsory Retirement having regard to :

"(a) The defaulter's good record of service and a clear disciplinary record.

(b) He has pleaded guilty and shown remorse.

(c) To perform private investigative duties for remuneration give rise to conflict of interest and may lead to abuse of authority.

(d) Such offences repeated in a stretch of nine months."

And, as a consequence, the defaulter was asked to show cause.

12. We now arrive at what, in my view, is the crucial document in the case, a Memo dated 10th July 1997 from the Force Disciplinary Officer to the Applicant, the relevant paragraphs of which are paragraphs 3 and 4 :

"3. The Force Discipline Officer has reviewed the case, and by virtue of Regulation 14(5)(a)(i) of the Police (Discipline) Regulations, he confirmed the guilty findings for Charges A-J.

4. However, in light of the severity of the case, he is now considering increasing the awards from 'Reprimand, suspended for 12 months' for each of Charges A-I and 'Reprimand' for Charge J to 'Compulsory Retirement' for each of Charges A-J under Regulation 14(5)(b)(iv) of the Police (Discipline) Regulations. You are now given an opportunity to show cause as to why the awards should not be increased."

13. The Applicant duly responded to this by a subsequent undated Memorandum, although apparently received before the imposed deadline of 18th July 1997. In the Memo, the Applicant accepted (at paragraph 2) that "the disciplinary offences committed by me were not trivial at all" and that he had no complaint about the "suspended reprimand" and "reprimand", and took them as a warning. He then referred to the Force Disciplinary Officer's memo as to the seriousness of the case, and took the opportunity to "explain the whole incident in detail", which he then did, expressing very considerable remorse and contrition.

14. This mitigation was rejected by the Force Disciplinary Officer, who reviewed the Appellant's representations, and by further memo to the Applicant dated 23rd July 1997, the Force Disciplinary Officer stated, inter alia :

"2. You submitted a written representation in respect of the show cause. Having carefully considered your submission and all relevant factors, the Force Discipline Officer has decided to increase the awards for each of Charges A-J to 'Compulsory Retirement'.

3. You are advised that in accordance with Regulation 15(1) of the Police (Discipline) Regulations, you have the right to forward an appeal in writing to the Commissioner of Police within fourteen days of the receipt of this memorandum. ..."

15. Such written appeal to the Commissioner of Police was forwarded by the Applicant on 4th August 1997. Effectively, this appeal took the form of another extensive plea in mitigation by the Applicant, rehearsing his history, his contrition, his recognition of his error, emphasising that there was no misuse of power, or conflict of interest with his official duties as a cook, or leakage of police information and records, and asking for a last chance. He further emphasised his shock at the harshness of the punishment relative to the original award of "reprimand" and also observed, in particular, that "I do not know the yardstick of the Force on how to mete out the award of punishment".

16. In due course, these further representations were considered by the Commissioner of Police, and the appeal was dismissed by the Commissioner of Police on 12th August 1997, paragraph 2 of which reads :-

"2. Having carefully considered your appeal and the evidence adduced in the proceedings, the Commissioner of Police dismissed your appeal and upheld the awards of 'Compulsory Retirement'. You are hereby compulsorily retired with effect from 12-AUG-97."

THE ARGUMENT

17. Against this background, in a wide ranging address, Mr Tolliday-Wright makes, I think, three main points : first, that by reason of the essentially unfocused nature of the Force Disciplinary Officer's memo of 10th July 1997, and given the generality of the words "in light of the severity of the case", the Applicant was put at a very real procedural disadvantage in not knowing precisely the case he had to meet in terms of the proposed increase in the severity of the punishment; second, complaint is made as to the lack of reasons given by the Commissioner of Police in his dismissal of the appeal; and third, Mr Tolliday-Wright suggests that the interposition of a senior officer, via Memo "M3", who was clearly not part of the statutory framework, was improper and prejudicial. I should add, at this stage, that Mr Tolliday-Wright also trailed his coat somewhat in terms of the final decision in this case being 'Wednesbury unreasonable', which contention also found a place in his extensive skeleton argument, but at the end of the day, and correctly in my view, he did not pursue this line of argument with any enthusiasm.

18. For his part, Mr Kwok, in a conspicuously balanced and fair submission, resisted these contentions; he took the position that the correct procedures had been adhered to throughout and pointed out, entirely correctly, that this Court did not play, and could not be drawn into, any sort of appellate role, and that on the facts procedural fair play had been demonstrably established. Descriptive compression rarely does justice to cogent argument, but that, at any rate, was the very strong thrust of his submission.

19. Whilst the parties were at loggerheads as to the effect of the facts, there was, I think, less difference between them in terms of the relevant legal principles, albeit that Mr Kwok stoutly maintained the position that in any event there was no duty, under the statutory framework, to provide reasons for any decisions, but that if such was to be implied, what had been said by the Commissioner of Police was entirely sufficient. In the course of argument, a significant number of cases, both English and Hong Kong, were placed before me, together with an extract of an article from the present Law Chancellor in terms of trends in judicial attitude towards judicial review; all of which was diverting, and in some cases educational. At the end of the day, however, it seems to me that the primary question for the Court is an assessment of whether, in this case and on these facts, the Applicant can be said to have had a fair crack of the procedural whip, so to speak. Put rhetorically, did the procedures adopted (in entirely good faith, it should be said, and with assiduous attention to detail), ultimately permit the Applicant to put up his case for consideration with that requirement of fairness which, in judicial review cases, is really the Court's only concern?

20. In conducting this evaluation, I was, with respect, much assisted by the well known words of Lord Mustill in Reg. v. Home Secretary, Ex. p. Doody [1993] 3 WLR 154 at 168, whose approach to the question of fairness and reasonableness in administrative decisions is perhaps now assuming the status of a locus classicus. Lord Mustill observed as follows :-

" What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

21. It seems to me that this passage, and in particular point (6) thereof, is more than usually apposite in the present context. Whilst I have had cause for considerable reflection, nevertheless it seems to me, on balance, that in terms of the proposed increase in the severity of sentence as propounded in the Force Disciplinary Officer's Memo of 10th July 1997, the Applicant was not properly afforded a true opportunity to make worthwhile representations as to such increase in severity of sentence by reason simply of the rubric "in light of the severity of the case". I note here that he was given no indication or elaboration of the factors which, in the Force Disciplinary Officer's view, rendered the case "severe" (particularly important, I think, in a case where, when working as a cook, there was no immediately obvious conflict between those duties and the outside work he admittedly undertook); moreover, as the Applicant himself commented in his appeal to the Commissioner of Police, he had no real idea of the benchmarks which were being applied. The internal Memoranda (see "M5") provide some indication in terms of certain comparative cases, but at the end of the day, the Applicant was not told of this, nor indeed of any other aggravating factors; so that, effectively, he remained in the position of "mitigating in blank", so to speak, both to the Force Disciplinary Officer and to the Commissioner of Police, on each occasion simply repeating the general mitigation he had been running throughout.

22. In this context, Mr Kwok suggested that there was little difference in this case between the Applicant's situation and that of the accused in the normal sentencing process, whereby mitigation is put up without knowing precisely what is in the judge's mind. With respect, I am not sure if that is altogether a happy analogy. To the contrary, if one is going to test the position by analogies of this type (and I am not sure that they are entirely helpful), it seems to me that the situation faced by the Applicant was more akin to that faced by the Respondent in the statutory procedure wherein the Crown exercises its right to review sentence in instances of alleged manifest inadequacy; in that situation, the Respondent to such review is certainly placed in the position of being able to focus upon the specific arguments prayed in aid, and is afforded the opportunity of being able to respond accordingly.

23. I confess that I have not found this an easy nor an obvious case; argument on both sides was vigorous and justified, but at the end of the day, in my judgment, there is sufficient here to enable the Court, in the exercise of its unfettered discretion, to step in and to quash the decision as to which complaint is made. In so doing I have taken into account all the factual circumstances and all the submissions thereon, and I have concluded that, in fact (and, I am minded to say, entirely unintentionally) the Applicant has not in the circumstances been treated as fairly as the Commissioner of Police would clearly have wished.

24. It seems to me that from the Force Disciplinary Officer level onwards, that the Applicant was necessarily disadvantaged. Had he been given an indication of the particular factors rendering the case "severe", so that he could have been placed fully in the picture and have responded specifically thereto, there would, I think, have been less cause for complaint in terms of the lack of reasons contained in the Commissioner of Police's dismissal of his appeal; in that event the Applicant clearly would have been more focused in terms of the contentions he was able to, and wished, to put forward, and in such circumstances I am far from convinced that an absence of reasons underpinning the decision of the Commissioner of Police, in rejecting his appeal, then could have been the subject of any significant or cogent criticism : rejection of the appeal in the face of an informed mitigation would have spoken for itself. But this did not occur. In a nutshell, all that the Applicant had to bite on was a general assertion of severity, absent particulars, to which he was able to make, or continue to make, only the most general response, which in turn was generally rejected. I do not think, however, that Mr Tolliday-Wright's third point regarding the interposition of the other senior officer (via Memo "M3") is sufficient to justify interference with the decision under review; there was undoubtedly compliance with the statutory procedure as laid down, and I am disinclined to find that the supplementation of such procedure by a responsible officer constitutes a sufficiently cogent ground to vitiate the ultimate decision.

25. At the end of the day, of course, each case depends on its own particular facts, and I have found, albeit after a degree of hesitation, that the requirement of fairness ultimately has not been met in this case. I recognise, of course, that situations such as the present are rarely obvious or clear-cut, and in the present context I am particularly reminded of the observations of Lord Bridge in Lloyd v. McMahon [1987] 1 AC 625 at 702-703, which is, perhaps, more than usually apposite in the present case :-

" My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

26. This application, therefore, is allowed. I issue an order of certiorari quashing the decision of the Commissioner of Police dated 12th August 1997 wherein the Applicant's appeal against the decision of the Force Disciplinary Officer was dismissed, and the awards of "compulsory retirement" upheld. In so far as may be necessary, I will hear Counsel upon the precise form of the Order, in particular in light of the further relief sought (at paragraphs 2 and 3) of the Notice of Application for Leave to Apply for Judicial Review dated 11th November 1997, as amended.

27. As to costs, I have in mind an order that the costs of and occasioned by this appeal be to the Applicant, to be taxed, if not agreed, in accordance with the Legal Aid Regulations. Naturally, however, I will hear Counsel on that issue also should there be any difference of view.

[Submissions by Counsel]

28. Counsel have now considered the matter. Mr Tolliday-Wright tells me that the Applicant does not need nor presently ask for the relief canvassed (at paragraphs 2 and 3) of the Notice of Application for Leave to Apply for Judicial Review, as amended; Mr Kwok, for his part, agrees that the same is not necessary, for several reasons. I therefore leave the Order essentially in terms of paragraph 1 of the relief prayed for, and leave the Commissioner of Police to consider the matter with his advisers in light of the content of my judgment.

29. As to costs, Mr Kwok naturally, and entirely properly, concedes that, in light of this judgment, there is little he can say, nor does he seek to justify any other form of costs order.

30. It remains, finally, for me to express my appreciation to Counsel for the assistance they have rendered to the Court.

Representation:

Mr D. Tolliday-Wright, inst'd by M/s Clarke & Liu, on behalf of the Director of Legal Aid, for Applicant

Mr S.H. Kwok of the Department of Justice, for Respondent