P.R.S. Dawson v. Commissioner of Police and Another

HCMP000215/1996

H.C.M.P. No. 215 of 1996

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Yeung in Court

Date of Hearing: 1 July 1996

Date of Handing Down of Judgment: 8 July 1996

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J U D G M E N T

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1. The applicant, Peter Robin Shannon Dawson, a chief inspector of police was notified on the 14th of July 1995 that he would be charged with the A and B charges of contravening of police order contrary to Regulation 3(2)(e) of the Police (Discipline) Regulations and the C charge of conduct to the prejudice of good order and discipline contrary to Regulation 3(2)(c) of the same Regulations.

2. The A charge alleged that the applicant engaged in outside unpaid work in conflict with the principles of Civil Service Regulations and without the prior permission of the Secretary for Civil Service.

3. The B charge alleged that the applicant misused Government transport by engaging a Government vehicle for a journey which was not made either in the furtherance of his official duties or otherwise permitted by Government Regulations or Force Orders.

4. The C charge alleged that the applicant obtained the services of another police officer and two Government workmen for work unrelated to his official duties or in Government's interest.

5. The A charge was not proceeded with due to insufficient evidence.

6. The applicant was informed that Mr. P.J. Thompson, Chief Superintendent of Police would constitute the Appropriate Tribunal in connection with the charges against him in accordance with the Police (Discipline) Regulations. He was further advised that if he wished to exercise his right to have a Civil Service Board under Regulation 18, he should make the application in writing within 7 days.

7. The applicant by a memo dated 14th of July 1995, requested the Chief Secretary to appoint a Civil Service Board to be the Appropriate Tribunal for fear that he would not receive a fair hearing from a Tribunal constituted by police officers. The request was made under section 18(1)(c) of the Police Discipline Regulations on the grounds of potential partiality and bias.

8. The Chief Secretary rejected the applicant's application and confirmed that the disciplinary proceeding against the applicant was to be heard by a Chief Superintendent as the Appropriate Tribunal which decision the Chief Secretary refused to review.

9. The present application was made by the applicant for a judicial review of the decision to have a Tribunal constituted by police officers to hear the case against the applicant and to have that decision quashed.

10. At all material times, the applicant was the Chairman of the Royal Hong Kong Police Shooting Club (RHKPSC). In 1993, there was a quantity of surplus .38 special ammunition from the Police Force due to its upgrading of guns and ammunitions. RHKPSC successfully bid for 1.6 million rounds of .38 special ammunition at a very attractive price, being the only body that made an offer.

11. The aforesaid transaction became the subject matter of a complaint to the Honourable James To Kun Sun by an anonymous letter in April 1994 and the matter was then passed to the police of investigation.

12. There was no dispute that the charges against the applicant in fact arose out of the investigation into the purchase of the 1.6 million rounds of ammunition by RHKPSC.

13. The applicant claimed that in the course of the investigation into the aforesaid transaction, a number of very senior police officer had displayed conducts far from being proper and satisfactory. There was the allegation that the committee of the RHKPSC was told to resign or else RHKPSC would be forced to close down. There was the suggestion that the applicant was told if he left the force, disciplinary proceeding would not be instituted against him, implying that the disciplinary proceeding was instituted in order to force the applicant to leave the Police Force.

14. The applicant contended that it would be difficult for an officer within the Police Force to be seen to be able to assess the evidence impartially and to that extent he could not be given a fair trial.

15. In support of the application, Mr. Egan on behalf of the applicant suggested that the applicant had been denied the right to make representation to the Commissioner prior to the appointment of the tribunal, a right guaranteed under the relevant regulations.

16. With respect, there was absolutely no basis for making such assertion at all.

17. The relevant regulations, namely regulations 16, 17 and 18 of the Police (Discipline) Regulations, properly understood confers the authority upon a Senior Police Officer to either appoint an appropriate tribunal or to apply to the Commissioner to appoint a board to be the appropriate tribunal when a disciplinary charge or charges were to be laid against an inspector under Regulation 17(3) of the Police (Discipline) Regulations.

18. In the present case, the Senior Police officer appointed Chief Superintendent P.J. Thompson as the appropriate tribunal and the applicant was so notified. The applicant was entitled, if he objected to the appropriate tribunal on the grounds of partiality or bias, to apply to the Commissioner to request the Chief Secretary to appoint a board to be the appropriate tribunal and the Commissioner shall forward such request to the Chief Secretary in accordance with regulation 16(4A). Regulations 16 of the Police (Discipline) Regulations deals with situation whereby a board might be appointed to be the appropriate tribunal by the Chief Secretary either on the request of the Commissioner or on the request made by the defaulter through the Commissioner.

19. Regulation 16 does not give the defaulter a right to request the appointment of a board by the Chief Secretary independent of and separate from that under Regulation 17. There was also no basis for suggesting that the applicant was entitled to be consulted before the appointment of an appropriate tribunal.

20. The appointment of the appropriate tribunal to hear the charges against the applicant was made straightly in accordance with the regulations in question. After he was informed of the appointment of the tribunal to hear the charges against him, the applicant requested the Chief Secretary, through the Commissioner for the appointment of a board and the Chief Secretary, after considerations of the representation made by the Commissioner and the applicant, declined to appoint a board.

21. The applicant could have no legitimate complaint on the procedural aspect on the appointment of the appropriate tribunal to hear the charges against him and the subsequent refusal by the Chief Secretary to appoint a board.

22. Mr. Egan, on behalf of the applicant also complained that on reaching her decision not to appoint a board, the Chief Secretary limited her consideration on the possibility of bias and had not apply her mind to the possibility of impartiality when the request to appoint a board was made on the basis of both partiality and bias. To support the argument, the letter dated 22nd November 1995 addressed to the applicant by the Secretary for the Civil Service was referred to. The said letter state, inter alias, "In reaching this decision, the Chief Secretary noted regulations 18 and 26 of the Police (Discipline) Regulations, Cap 232 and that in all the circumstances there appeared to be no real danger of bias."

23. The Chief Secretary, in response, stated in her affidavit that "the issues of bias were addressed to in the said letter as it appeared that these issues of partiality and bias were raised in the applicant's representations, in particular paragraphs 4, 5, 6 and 7 therein."

24. On the evidence, there could be no doubt that in rejecting the applicant's request, the Chief Secretary had taken into consideration all matter raised by the applicant, including the suggestion of both partiality and bias.

25. The other complaint that the applicant had was that the Chief Secretary had taken into consideration material other than those permitted under Regulation 16(4B) in her deliberation which material was never disclosed to the applicant.

26. Regulation 16 (4A) and (4B) of the Police (Disciplinary) Regulations provides

(4A) If the Commissioner is of the opinion that there are no exceptional circumstances but the defaulter so requests, the Commissioner shall refer such request to the Chief Secretary to appoint a board to be the appropriate tribunal.

(4B) In exercising his discretion whether or not to appoint a board to be the appropriate tribunal, the Chief Secretary shall take into account any representations made in writing by the Commissioner and the defaulter.

27. It was not disputed that when the Commissioner referred the request of the applicant to the Chief Secretary to appoint a board, included in the representation were the following documents;

(a) Extracts from the Report on the Criminal and Disciplinary Investigation into the Activities of the RHKP Shooting Club (a copy of the full report is available if required),

(b) A copy of the legal advice from AG's Chambers,

(c) A copy of the disciplinary charges.

28. I find it difficulty to understand how it could be argued that the aforesaid documents were outside the scope of "representation in writing" within the contemplation of Regulation 16(4B). When submitting a written representation to the Chief Secretary, the Commissioner must surely make points that he consider to be valid. To demonstrate those points, he may find it necessary to refer to expert reports, statistics, diagram or whatever documents which are considered to be necessary to explain the content of the 'representation' itself. Those documents must be part of the written representation and the Chief Secretary must take them into account before making her decision.

29. Further it is important to bear in mind that in his request for the appointment of a tribunal, the applicant based his application on the suggestion that he could not have a 'fair' hearing because of the circumstances in which the activities of the RHKPSC were investigated into. Surely it would be proper for the Commissioner to include the report on the investigation into the activities of the RHKPSC and the other relevant documents to enable the Chief Secretary to have a full picture of the matter so that an informed decision could be made. There is no merit at all in the suggestion that those documents were not relevant and it was wrong for the Chief Secretary to refer to them before making her decision.

30. It was further suggested by Mr. Egan that the materials aforesaid were never disclosed to the applicant and therefore he was deprived of the right to answer or explain anything prejudicial contained therein. The suggestion was that such matter constituted a serious breach of the rules of natural justice.

31. The regulations in question make no mention of the Commissioner having to notify the defaulter the contents of his representation made to the Chief Secretary. The Chief Secretary in determining if a board should be appointed is not performing a judicial function. She is just making an administrative decision in accordance with the legislative provision. Is it being suggested that the Chief Secretary should have a formal hearing, so that each side has the chance to present his evidence and to allow the other side to test such evidence by cross-examination? With respect, the so call "rules of natural justice" has no part to play in the decision making process of the Chief Secretary as to whether a board should be appointed as the appropriate tribunal at all.

32. The only remaining point I need to deal with is whether the decision of the Chief Secretary that the appropriate tribunal appointed to hear the charges against the applicant would give him a fair hearing was so unreasonable that no reasonable authority could ever have come to it.

33. Mr. Egan emphasis that the charges against the applicant arose out of a high-profile investigation with political background and that the charges against the applicant were very minor. He pointed out that the allegation made by the applicant might involve very senior police officers having to appear before the appropriate tribunal.

34. In every case involving alleged misconduct of police officer, there are bound to be the involvement of other police officers. This can not be the valid basis of partiality or bias. After all, the Tribunal appointed to hear the case against the applicant must base it findings on evidence and the evidence must be evaluated in accordance with the credibility of the witness. If a defaulter is convicted and sentenced, he is entitled to appeal to the Commissioner or the Governor by way of petition.

35. Speaking for myself, I find it difficult to understand the relevance of the applicant's allegation against the senior officers in relation to the charges against him. The charges against him are no doubt quite trivial. The brief facts of the case stated the following:

"On 7 May, 1993, the defaulter, in the capacity of District Operation Officer, Shamshuipo police district, booked a Police General Purpose Vehicle with the then Transport In-Charge (PW1) of Cheung Sha Wan Division for a journey between Cheung Sha Wan Police Station and Shatin Police Station at 0900 hours on 8 May, 1993.

On 8 May, 1993 at about 0900 hours, the defaulter ordered the duty driver(PW2) of the police Heavy General Purpose vehicle AM 8430 and two station workmen (PW3 and PW4), all attached to the Cheung Sha Wan Division to follow him and proceeded to the Kwai Chung Container Terminal instead of Shatin Police Station. The purpose of which was to collect a shipment of firearms at the Kwai Chung Container Terminal and to deliver it to the Police Sport Recreation Club, Boundary Street. However, the consignment had not yet arrived in Hong Kong and the defaulter told PW2 to drive back to Cheung Sha Wan Police Station with the same party on board. The entire journey including waiting time took about an hour. The defaulter, according to the duty roster and OB, should have been performing the duties of DOO SSPo at the material time. Police transport was misused by the defaulter and the conduct of the defaulter prejudiced to good order and discipline."

36. The applicant is entitled to bring out whatever allegation he considers to be helpful to his case. He, subjectively and for one reason or another, might feel that he would not get a fair trial. But that was not the appropriate test. The test was whether the conclusion reached by the Chief Secretary was so unreasonable that no reasonable authority could ever have come to it.

37. I have considered the entire background of the matter. The Chief Secretary was entitled, based on all the information before her that the applicant would get a fair hearing before the tribunal appointed by a Senior Police Officer. The decision of the Chief Secretary could not be faulted.

38. There was absolutely no merit in the application by the applicant at all and the same must be dismissed.

39. I also make an order nisi that the applicant is to pay the respondents' costs of the proceeding to be taxed if not agreed. The order nisi on costs is to be made absolute 14 days after the handing down of the judgment.

(W. YEUNG)

Judge of the High Court

Representation:

Mr. K. Egan instructed by Messrs. C.L. Chow and Lam for the applicant.

Ms. D. Watson of the Attorney General's Chambers for the respondents.