Ng Sik Ling v. Commissioner of Police and Another

HCAL003868/2001

HCAL 3868/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.3868 OF 2001

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Coram: Hon Hartmann J in Court

Date of Hearing: 20 January 2003

Date of Judgment: 20 January 2003

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J U D G M E N T

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1.On 14 June 2001, the applicant, a senior inspector in the Hong Kong Police, was found guilty by a tribunal convened in terms of s.16(1) of the Police (Discipline) Regulations, Cap.232, of contravening police general order 6-01(2) which (in part) reads :

"Other than in the course of duty, a police officer shall not associate with known criminal or triad personalities."

Specifically, the applicant was found guilty by the tribunal of associating with a known triad personality named Fung. The association took place in Macau between December 1997 and May 1998.

2.During the disciplinary hearing, expert evidence was led that Fung was at all material times a notorious and active triad in Macau, an underworld figure of influence believed to be involved in a range of illicit activities. The tribunal's finding that when the applicant met with Fung he knew him to be a triad personality does not appear to be disputed.

3.On 8 September 2001, the Commissioner of Police made a recommendation to the Chief Executive that the applicant be compulsorily retired from the Hong Kong Police with deferred benefits. The recommendation was made pursuant to reg.27(1) of the Police (Discipline) Regulations.

4.On 21 September 2001, the Secretary for the Civil Service, acting in accordance with powers delegated to him by the Chief Executive, ordered that the applicant be subject to the recommended penalty.

5.I am told that the applicant is 51 years old. The age for retirement in the police is 55. In addition to the loss of his career, the applicant must therefore wait for about four years before he receives accrued benefits. The penalty is sanguine.

6.The applicant now seeks orders of certiorari to quash the decisions respectively of the disciplinary tribunal, the Commissioner of Police, and the Secretary for the Civil Service.

7.Before moving to the applicant's individual challenges, it is necessary to say something of the relevant background. The applicant joined the Hong Kong Police in 1974. Prior to the disciplinary proceedings, he had a good record within the police.

8.In 1997, the applicant, along with several others, set up a karaoke business in Macau. Two of the other persons involved in the business are relevant to the present proceedings. The one is a man called Yeung (sometimes spelt Ieong) Choi-kit, the other a man called Chan Chun-cheun, known as 'Ah Bi'. The karaoke had its official opening in December 1997. The opening was attended, if only briefly, by Fung, the triad personality. Nothing of substance appears to have been made of this in the disciplinary proceedings. There was no suggestion on that isolated occasion of any association.

9.By April 1998, a few months after the opening, the karaoke business was in severe financial difficulties. During the period of its operation it appears never to have made a profit. Yeung Choi-kit, who held some managerial role, did not wish to have any further association with the business and it was agreed that he would receive a severance payment. A cheque was made out in his name, the applicant apparently being the one who signed the cheque.

10.At about this time, the applicant was aware that there was bad blood between Yeung Choi-kit and Ah Bi. But seemingly after the departure of Yeung, the applicant learnt that both Yeung and Ah Bi were followers of Fung, they themselves therefore being triads or triad followers. Through Ah Bi, the applicant learnt that Yeung apparently intended to cause harm to the karaoke business.

11.On the evening of 29 April 1998 the applicant was telephoned by Ah Bi who said that he was with Fung. Ah Bi asked the applicant to join him and Fung at a nearby restaurant. It appears the Fung was owed money by Yeung and wanted repayment of that money. Although he was aware that Fung was a triad and that Ah Bi was his follower, the applicant nevertheless attended the meeting. The evidence indicates that it lasted some 20 minutes. I will come to the substance of the meeting shortly.

12.During the course of submissions, Mr Ross, for the applicant, submitted that on the evidence the applicant did not know that Yeung was a triad follower of Fung until a much later date. The evidence, however, does not support this. The transcript of proceedings reveals the following being said by the applicant during the disciplinary proceedings :

"Only after Yeung resigned, Ah Bi told me that both himself and Yeung were followers of Fung. I came to know about this prior to my first meeting with Fung." [my emphasis]

In any event, even if the evidence in this regard is confused, the central issue is the applicant's association with Fung, a person who so the tribunal found was at all material times known by the applicant to be a triad personality.

13.At the first meeting in the restaurant, the evidence reveals that the applicant did his best to impress on Fung that any indebtedness on Yeung's part was a private matter between Yeung and Fung and had nothing to do with the karaoke business.

14.A few days later, however, on 3 May 1998, the applicant received another call from Ah Bi who said that he was again with Fung. Again, Ah Bi sought the applicant's presence at a meeting. The reason for this second meeting concerned the fact that the severance cheque given to Yeung had been dishonoured. This meant that Yeung could not, in turn, pay Fung. Again, the applicant attended this second meeting which again was held in a restaurant. Yeung's indebtedness to Fung was discussed and the suggestion was made that the single dishonoured cheque made out earlier to Yeung should be replaced with several smaller ones. As the karaoke business was still generating an income of sorts, it was hoped that smaller sequential cheques would be honoured. The applicant agreed with the suggestion and he, together with Fung and Ah Bi, went to the premises of the karaoke business. Yeung joined them there. The dishonoured cheque was handed over and was replaced with several smaller cheques.

15.To illustrate the nature of what the tribunal found, on the facts, to be an association, during the course of his testimony the applicant is recorded as saying :

"My opinion is that after my first meeting with Fung he was a mean person. It was Ah Bi who told me that the cheque given by Yeung to Fung could not be cashed. He also told me that if I did not go to see Fung for the second time, Fung would come to see me. I returned to the night-club [the karaoke premises] with Fung and Ah Bi after that meeting because I thought I had to show respect for Ah Bi and Fung, and the cheque issue was to do with the company's business. I saw it as a kind of politeness." [my emphasis]

16.These meetings in Macau came to light when Yeung made a complaint about the applicant to the police. The applicant agreed to be interviewed about the complaint.

17.I turn now to consider the various challenges made by Mr Ross, on behalf of the applicant, to the lawfulness of the decisions which have resulted in the applicant's compulsory removal from the police.

18.A number of challenges have been made, several really being appeal points dressed in administrative law clothing. As I perceive it, however, the central challenge, and the only one of substance, is that the finding of the tribunal that the applicant 'associated' with Fung was either wrong in law or was a finding that no reasonable tribunal could have reached. Two issues therefore arise. The first concerns the true meaning and intent of the word 'associate' as it appears in order 6-01(2) of the Police General Orders and, second, whether the finding that there had been an association, on the facts, was one that was capable of being made by a reasonable tribunal.

19.To come to a determination of the meaning and extent of the word 'associate', it is necessary first, I believe, to have regard to the Police General Orders themselves. In an earlier judgment, Yu Yau Tak v. Commissioner of Police and Another, unreported HCAL 42/2000, I made reference to Police General Orders in respect of conduct and discipline and spoke specifically of order 6-01(2). Looking at that order, together with other allied orders as to conduct, I said the following :

" They do not constitute statutory legislation and are not so intended. At the other end of the spectrum, they are, in the main, much more than mere guidelines or institutionalised advice: they are orders which must be obeyed under fear of penalty. In my judgment, they constitute directions given to police officers to ensure that, in matters of general behaviour, they conduct themselves in a manner which befits their training and professionalism and which ensures that they do not abuse their public trust. In the eye of the public, the integrity of the force at large is reflected in the integrity of each officer. Police general orders are intended to maintain that integrity. To that end, I am satisfied that they are deserving of benevolent construction, due regard being had to their purpose and to the mischief they seek to avoid."

20.This passage was approved by the Court of Appeal (see Yu Yau Tak v. Commissioner of Police and Another [2001] 2 HKC 627) when Woo JA said :

" Having examined all the circumstances of this case and the spirit and intent of the order, I agree with the judge's interpretation and the reasons he gave in support. The order was made for controlling the conduct of police officers who are doubtless seen by members of the public as law enforcement agents, and by many even as the only source of law enforcement available to help when the safety of their person, freedom and property is threatened. Police officers must be seen by the public to be persons of high integrity in whom the public can repose their trust and reliance. It would be most undesired for police officers to associate or be seen mingling with criminals or triad members, and that must be the spirit in which order 6-01(2) is to be viewed. The judge's interpretation of the order is proper and correct."

Later in his judgment, Woo JA said :

" As I said before, it is important to maintain the public's trust in and reliance on police officers. If the subject person is generally reputed to members of the public to be a criminal or triad personality, and they see or know that a police officer has associated with him, that will doubtless adversely affect that trust and reliance. The intent and spirit of the order must be for proscribing the conduct of police officers in this regard."

21.In my view, therefore, when looking to the Police General Orders, they are not to be interpreted narrowly. They are to be read purposively, looking to their spirit and intent. As I have said in my earlier judgment, they are deserving of 'benevolent construction'.

22.The word 'associate', as it appears in order 6-01(2), does not lend itself to a short, exhaustive (or all-inclusive) definition. That being so, whether a police officer has or has not associated with a known triad personality can only be determined by having regard to the facts of each case. As to the broad meaning of the word, I agree with the observations of Sears J in Chang Wai Kit v. Commissioner of Police, unreported HCMP 3208/1996, that there must be evidence of some relationship. To merely meet a known triad personality is not to associate with that person. It must go further. There must, in my view, be some form of linking together in order to share some common purpose. That 'linking together' may be temporary or permanent, it may last just one meeting or extend over a series of gatherings and communications. In each case the facts will determine the matter. As to the common purpose, it may be social (e.g. to go on holiday together or to go gambling together) or it may be related to more practical matters (e.g. to deal with business or finances).

23.In my view, in the present case, the applicant's meetings with Fung, while not extensive in nature, may nevertheless be described as constituting an association with him. Expressed bluntly, the applicant went to two meetings with a known triad personality in order, firstly, to try and protect his karaoke business and, secondly, far more damaging, to help this triad personality settle financial affairs with one of his own followers. In this latter regard, it is pertinent to return to the words of the applicant himself which I have cited :

"After that meeting, because I thought I had to show respect to Fung [the triad personality] I returned to the night-club with him."

24.In his telling analysis of the matter, Mr Ismail posed the following rhetorical questions which, in my view, open the window to one legitimate view of the applicant's meetings with Fung -

"(i) Would the public have any confidence in the integrity of an officer who admits meeting a triad personality and his followers at the request of one of the followers, in a public place, and issuing cheques at the request of that triad so that some form of indebtedness internal to the triad organisation could be dealt with?

(ii) Would the public have any confidence in a police officer who says that he believed he was obliged to give support to someone whom he knew to be a triad personality, and that he had to show respect for the triad personality himself?"

25.In my judgment, the finding of the tribunal that there had been an association is a lawful finding and is a finding which a reasonable tribunal could have made.

26.I move now to the second ground of challenge which is to the effect that order 6-01(2) offends the Bill of Rights. It is contended by Mr Ross that it specifically offends two articles; namely 14 and 18, which state (in their relevant parts) as follows :

"art.14:	No-one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
art.18:	(1)	Everyone shall have the right to freedom of association with others including the right to form and join trade unions for the protection of his interests.
	(2)	No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (order public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right."

27.Let me say out the outset that I find nothing in order 6-01(2) that offends either art.14 or art.18.

28.Mr Ross has complained that if a police officer is prohibited from associating with triad personalities - the rather strange example of them being joint members of a choir was given that would be a fetter on the officer's power to form personal relationships. Of course it would be a fetter and rightly so in my view. But the rights protected under art.14 and art.18 are not unqualified. It will be seen, for example, that art.18 makes specific reference to police officers. In my judgment, it is perfectly proportional to the end sought to say that police officers shall not 'associate' with known triad personalities. I can find nothing arbitrary about it. To suggest that they should be free to do so bears no relation to the realities of life in an orderly, law-abiding society where police officers must ensure that they are free of any taint of corruption or involvement, other than in the course of duty, in underworld activities. Mr Ross posed the question : what if an officer's father is a known triad personality? Hypothetical questions of that kind do not advance the issue. But if an officer should find himself in such a predicament, it would seem to me that he would have to make a choice, a difficult one, yes, but a choice nevertheless. There are certain occupations which demand that integrity, which includes the reasonable public perception of it, may not be compromised.

29.It was argued that the word 'associate' is too broad to be consistent with the articles in the Bill of Rights and that it is not capable of being 'written down' or 'restricted' in any way in order to make it consistent. I disagree. I have already spoken of the meaning and intent of the word. It is not, for its legitimate purpose, too broad.

30.The Bill of Rights challenge has been aired in this Court before. In Ng Kam Chuen v. The Commissioner of Police [1998] 1 HKLRD 492, at 494, Keith J (as he then was) dealt with the point succinctly in an application for leave to apply for judicial review :

" In addition, Ms Ng argued that this construction of GPO 6-01(8) - equating serious pecuniary embarrassment with the impairment of a police officer's efficiency - was incompatible with art.14 of the Bill of Rights, which prohibits anyone from being 'subjected to arbitrary or unlawful interference with his privacy'. I do not believe that to be arguable. Even if an investigation of a police officer's personal financial affairs could amount to an interference with his privacy, I do not see how that interference could be described as arbitrary. The reason for it must be the need to maintain the integrity of the police force, and the confidence of the public in the probity and reliability of police officers." [ my emphasis]

31.During the course of his submissions, Mr Ross contended that the tribunal had wrongly allowed into evidence certain video-recorded interviews in which the applicant had spoken of his meetings with Fung. The admission of these recorded interviews, he said, constituted a material procedural impropriety. I disagree. The fact is that after Yeung Choi-kit had made a complaint to the police it was incumbent upon the police to investigate that complaint. The applicant freely answered questions concerning that complaint in recorded interviews and in the course of so doing spoke of his meetings with Fung. He may not have been warned that he was placing himself in jeopardy of disciplinary proceedings but the fact is that the disciplinary proceedings later taken against him were not criminal proceedings. There is a wealth of authority to the effect that internal administrative proceedings, provided they meet the fundamental requirements of fairness, are not to be set aside because they do not follow procedures which would be applicable in criminal cases. The applicable principles have been set out in the Privy Council decision of Mahon v. Air New Zealand [1984] A.C. 808 per Lord Diplock at page 820 :

"The first rule is that the person making a finding ... must base his decision upon evidence that has some probative value in the sense described below...

The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory." [my italics]

32.In my judgment, it cannot be said to contravene natural justice to have taken into account the applicant's earlier recorded interviews, interviews that were given freely at the time and in respect of which, during the disciplinary proceedings, the applicant had (and took up) the opportunity to make representations.

33.Before turning to the question of the penalty imposed on the applicant, I refer briefly to one further matter raised by Mr Ross. He said that the tribunal recognised that the applicant had given two differing versions of his association with Fung. Accordingly, it was incumbent on the tribunal to decide which one it accepted and the failure to do so was a material error of law. The tribunal, however, said that both versions amounted to an association. That being so, there was no need to pursue the essentially sterile route proposed by Mr Ross.

34.I turn lastly to the matter of penalty. It has been argued that the penalty was so severe that no reasonable decision maker could have imposed it. This really, on the facts, was an appeal point and was essentially argued as such. Mr Ross pressed upon me that the applicant had had a previous unblemished record and that the association, if it be such, was a temporary one only; that it was no more than a bad piece of judgment related to a failing a business and that there was no suggestion that it would, in any way, undermine this officer's general integrity.

35.The temptation, of course, is to view matters of this kind through the eyes of an outsider not as an objective, reasonable police officer. In Wong Wai Tak v. the Secretary for the Civil Service, unreported HCAL 2335/2000, I said :

"Discipline forces are required to be disciplined because history, strewn as it is with crises, has shown that for those who place themselves in harm's way in order to protect the public interest, the ability to act cohesively in the face of such harm is critical. Discipline breeds the ability to act in this way. The importance of discipline therefore is best understood by those who most rely on it. This, in my view, is a matter which should be understood when offences against discipline, committed in forces dependant upon discipline, are challenged as being perverse or irrational."

36.The principles which our courts adopt in assessing challenges of this kind have been laid down by the Court of Appeal in Au Yeung Kwok Hing v. The Attorney General, HCA 205/1994, in which Bokhary JA (as he then was), said the following concerning a police officer who had been compulsorily retired :

"How this appeal might be determined if one were to proceed on the basis of sympathy for the appellant is irrelevant. Sympathy is not the test. Responsibility for discipline in the police rests with the Commissioner of Police. His duty is to the public. And so is the duty of the courts.

A disciplinary offence has been committed. The person responsible for discipline has imposed punishment. He had done so within the range of his sentencing options. And he has not made any procedural error. Still the courts are asked to intervene to reduce the punishment. But the courts are not exercising appellate jurisdiction. They are exercising jurisdiction by way of judicial review. All of that being so, the courts will only intervene if the punishment is severe beyond any rational relationship to the seriousness of the offence and the situation of the offender." [My emphasis]

37.The punishment may have been stern. But I cannot say that it was so severe that it was beyond any rational relationship to the seriousness of the offence and the personal situation of the offender.

38.In the circumstances, the application for judicial review must be dismissed. There is no good reason shown why costs should not follow the event and they are awarded to the respondents.

Representation:

Mr Philip Ross, instructed by Messrs S.K. Wong & Lee, for the Applicant

Mr Anthony Ismail, instructed by the Department of Justice, for the 1st and 2nd Respondent