Ng Wai Sang v. Secretary for Justice

HCAL000007/1997

1997, No.AL7

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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Coram: Hon Yam, J. in Court

Date of hearing: 1 December 1997

Date of handing down judgment: 8 December 1997

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J U D G M E N T

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The Background

1. This is an application by the Applicant for judicial review of the decision of the Assistant Commissioner of Police Mr Tsang Yam Pui dated 14 December 1996. The Deputy Commissioner upheld the award of immediate dismissal of the Applicant by the Force Discipline Officer on 24 October 1996 by varying the award of the Senior Police Officer, which was one of suspended dismissal for 12 months.

2. The Applicant joined the Police Force as a Police Constable since his graduation from the Police School in February 1981. The Applicant said in his affirmation that in 1980 his father suffered from heart deceased and was receiving continuous medical attention. His father stopped working in or about 1981 and in order to cope with the household expenses and medical expenses, the Applicant began to obtain loans from financial institutions. After his father's death, he incurred further debt as a result of his funeral expenses.

3. However, instead of beginning to repay the debts, the Applicant continued on to lead a lifestyle beyond his means. In particular, he spent more than he could afford on entertaining women. In 1990, he met the woman who eventually became his wife. They began to cohabit together in 1991. She had expensive tastes, and the Applicant spent a lot of money on her. When they married in 1993, he spent about $200,000 on their wedding and on decorating their new quarters. He financed his profligate spending by acquiring more and more credit cards and by obtaining loans from banks and other financial institutions. By 1996, he was heavily in debt in respect of nine credit cards and had outstanding loans from eight banks and financial institutions. As at 13 June 1996, he owed $540,757.

4. The aforesaid account revealed that the Applicant had been living beyond his means for all those 15.5 years of service with the Police Force.

5. On 2 May 1996, the Applicant approached their Staff Relations Officer of Security Wing for advice and assistance in respect of his indebtedness. The case was referred to the Police Welfare Officer.

6. The Police Welfare Officer advised the Applicant to petition for bankruptcy and upon that advice, he filed a bankruptcy petition in the High Court. In due course a Receiving Order was made against him on 24 July 1996 and an Adjudication Order was made on 27 September 1996. He was required to pay $8,000 a month into an account administered by the Official Receiver to be used to repay his creditors. That would last for about 5½ years. He was paying his mother $3,000 a month. He then relied on the remaining balance of $8,000 for his own living as long as he remained in the employ of the Force.

Disciplinary Proceedings

7. However, in August 1996, he received notice of disciplinary proceedings for contravention of a police order pursuant to Regulation 3(2) of the Police (Discipline) Regulations. It was the Police General Orders 6-01, paragraph (8) which states that "A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment from whatever cause is regarded as a circumstance which impairs the efficiency of an officer."

8. On 28 August 1996, in disciplinary proceedings before an internal tribunal, the Applicant pleaded guilty to the charge and was later on sentenced by a Senior Police Officer to the punishment of dismissal but suspended for one year on 10 September 1996.

9. However, Regulation 14 provided that within 14 days from the date of any finding or award made by an appropriate tribunal, the finding or award shall be considered by a senior officer who can confirm or vary the finding or award. On 24 October 1996, the Applicant was informed that the award was increased by the Force Discipline Officer to immediate dismissal. On 30 November 1996, the Applicant submitted an appeal to the Commissioner of Police. On 16 December 1996 the Applicant was informed in writing that his appeal was dismissed by the Deputy Commissioner and his dismissal was backdated to 14 December 1996.

The Judicial Review

10. The application for leave to apply for judicial review was refused by Sears J. on 27 March 1997. On 24 July 1997 the Court of Appeal allowed the Applicant's appeal for leave to be granted. In allowing the appeal, the Court of Appeal granted the Applicant leave to apply for judicial review but only of the decision of the Commissioner dismissing his appeal from the decision of the Force Discipline Officer and only in the limited grounds that the Commissioner of Police should provide his reasons for dismissing the Applicant's appeal and the Applicant is permitted to argue that the decision to dismiss the Applicant with immediate effect was "Wednesbury unreasonable".

The Deputy Commissioner's reasons

11. The Deputy Commissioner of Police who upheld the award of dismissal in fact reduced his reasons into writing in the form of a minute dated 14 December 1996. His reasons for upholding the award can be summarised as follows -

1. That as the Applicant's debt amounted to such an extent he had no alternative but to seek help.

2. Declaring bankruptcy was almost the Applicant's only option so that the Police Force would in any event have found out about his predicaments, and as such, volunteering to report his financial position was not a matter which was particularly in his favour.

3. That no hope of drastic reform of this officer's lifestyle could be attached which was necessary in order to sustain his repayments to creditors.

4. That the Applicant was unsuitable to perform any duty of trust.

5. That in the circumstances the Applicant was a liability to the Force and should be dismissed.

Whether "Wednesbury unreasonable"?

12. The Applicant submitted that the Deputy Commissioner failed to recognise that the Applicant's serious indebtedness is intimately connected with his expensive marriage in 1993 to an extravagant and gambling wife who has now left him. However, from all the papers before the Deputy Commissioner, his wife was referred to his "estranged" wife. It cannot be said that the Deputy Commissioner had not taken that into account.

13. Secondly, it was submitted by the Applicant that he had been complemented on his work for some 20 occasions. His Superintendent stated that during the period that the Applicant worked under his direct command in the Security Branch, the Applicant "was deployed on various confidential duties including field operations with particularly sensitive security nature which required the highest level of initiative, personal discretion and devotion to duty. Throughout the period he fully met these requirements ...". The Applicant submitted that there is absolutely no evidence for concluding that he is unsuitable to perform any duty of trust or that he is in any way an untrustworthy individual.

14. However, the Applicant began to borrow in 1981 and his financial difficulties began following the death of his father in 1984. The Applicant continued on to live beyond his means. The condition became more serious since 1990. The Applicant's debts were not caused by illness and/or borrowing money to pay medical bills but were caused by his extravagant lifestyle which was not commensurate with being a police officer. It was against this background that the Deputy Commissioner concluded that the Applicant's lifestyle was such that there was no hope of drastic reform in order that he sustained repayments to his creditors and that he was unsuitable to perform any duty of trust and therefore a liability to the Force. In deciding whether the Commissioner's decision was Wednesbury unreasonable, assistance is to be found in applying the test set down by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at page 410G as follows -

" 'By irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral of standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

15. The question of discipline is essentially for the police to deal with. Police officers occupy a special position of trust and responsibility within our community. Having considered the Applicant's lifestyle, the Commissioner was perfectly entitled to conclude that he could not attach any hope for drastic reform by this officer in relation to that lifestyle. Having considered the evidence, the Deputy Commissioner was again entitled to conclude that this officer could not be trusted in the performance of his duty and as such he was a liability to the Force. The question is not whether this Court would reach a different conclusion from the Deputy Commissioner. The question is whether there is any evidence upon which the Deputy Commissioner could rationally base his conclusion. I am afraid the Deputy Commissioner's decision could not be characterised as "outrageous in its defiance of logic" nor a decision that "no sensible person who had applied his mind to the question to be decided could have arrived at".

16. The decision of the Deputy Commissioner is further attacked on the basis that no reasonable tribunal could reach the decision against the background of Force Policy. However, the Applicant clearly falls within s.4(a) of that Policy in that he had enjoyed for some 12 years an extravagant lifestyle not commensurate with his income, for example "expensive weddings", etc. The Applicant also falls within paragraph 7 of the Policy in that it is recognised that indebtedness may impair on officer's efficiency or compromise his integrity which matters reflect upon his employment. When this is read in conjunction with paragraph 2 of the Policy in that an officer has an unmanageable debt, concerns about his trustworthiness will obviously arise. The Applicant certainly does not fall within paragraph 5 of the Policy which provides that the Force would take a sympathetic view towards officers who become indebted due to unforeseen and compassionate circumstances and to whom the Force will provide any assistance to enable them to meet their debt.

17. It has been suggested that the harsh punishment imposed by the Force would deter other officers who have fallen into debt from seeking assistance. This is, however, a matter for the Force. The punishment may be a little bit harsh. The Applicant would have lost all his pension. However, the decision is not irrational. The Force is not prepared to take the risk and liability. Dismissal is a recognised award for persons such as the Applicant who had fallen foul of the Force Regulations and Policy by indulging in reckless and extravagant expenditure over a substantial period of time.

Conclusion

18. For the aforesaid reasons, this application is dismissed with an order nisi for costs to the Respondent to be taxed if not agreed. The Applicant's own costs shall be taxed according to the Legal Aid Regulations.

Representation:

Mr Paul Harris, inst'd by M/s W.K. To & Co., for the Applicant

Mr Robert Whitehead, inst'd by Department of Justice, for Respondent