Cheung Hin Kwan v. Commissioner of Police and Another
Read the full judgment text of HCAL 92/2003 on BabelCite. This High Court CFI judgment was delivered on 4 October 2004.
1. The applicant joined the Hong Kong Police Force in 1985. His performance has been commended and was promoted to the rank of sergeant in 1993. He received a police commendation from the Commission of Police in 1995, and in March 2000 he was transferred from crime duties to Uniform Branch duties.
Cites 2 cases
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HCAL92/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.92 OF 2003 --------------------------
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--------------------- Before : Hon Yam J in Court Date of Hearing : 2 March 2004 Date of Handing Down Judgment : 4 October 2004 ------------------------ J U D G M E N T ------------------------ Background 1.The applicant joined the Hong Kong Police Force in 1985. His performance has been commended and was promoted to the rank of sergeant in 1993. He received a police commendation from the Commission of Police in 1995, and in March 2000 he was transferred from crime duties to Uniform Branch duties. 2.In June 2000, the applicant was accused of 2 contraventions of Police Force Orders which included : association with known triad society personalities and three charges of making a false statement. 3.In late June 2000, disciplinary proceedings began against the applicant and he pleaded not guilty. Five further hearings took place throughout July and August 2000 but they were all adjourned as a result of the applicant being unable to find representation. 4.In August 2000, the applicant sustained back injuries in the fitness room of Yaumatei Police Station and was placed on sick leave. As a result of this, no further hearings were held pending his recovery. For the first six months of his sick leave, the applicant obtained full pay but thereafter he received only half pay from the end of February 2001 until August 2001. From the end of August 2001 to mid-March 2002, he was on vacation leave and therefore received full pay. Thereafter, he received no pay from the police at all. Consequently, he became dependant on Comprehensive Social Security Assistance from May 2002. 5.After the fall, the applicant attended a medical board in May 2001 at the United Christian Hospital where he was recommended partial recovery in 18 to 24 months. Six months later, he attended the same board but was recommended no definite recovery and early retirement. That was November 2001. 6.In May 2002, the applicant was informed that the disciplinary proceedings would be completed before early retirement would be considered. By a letter dated 13 May 2002, the applicant informed the Commissioner that he would refuse all options to continue disciplinary proceedings and stated that he was not willing to participate. 7.By a medical report of the United Christian Hospital dated 20 June 2002, it was stated that the MRI showed only mild prolapse of dics and the pathology could not explain the applicant’s symptoms. 8.At a management meeting on 1 August 2002, it was decided to submit the applicant’s case to the Commissioner to consider summary dismissal under section 31 of Cap.232. 9.By a letter dated 24 September 2002, the applicant’s solicitors alleged that the applicant’s medical condition has deteriorated. The Commissioner replied by a letter dated 2 October 2002 saying that actions were being taken to expedite the disciplinary proceedings. On 31 January 2003, the Discipline Section forwarded the report recommending summary dismissal of the applicant to the Commissioner. 10.Meanwhile, by the end of 2002 and the beginning of 2003, both the two other co-accused were found guilty and subsequently awarded compulsory retirement with deferred benefits. The application 11.On 8 September 2003, the applicant applied for judicial review herein and sought the following orders, namely :
12.As can be seen from the aforesaid background, consideration was given as to whether the applicant should retire from the Police Force under CSR 365, but in all the circumstances it was decided to postpone that issue until after the conclusion of the disciplinary proceedings. The applicant was informed of the same on 7 May 2003. 13.Shortly afterwards, the applicant was given various options to continue with the disciplinary proceedings, but he declined all of them and stated that he was unwilling to participate further. His reasons were contained in the solicitors’ letter dated 14 May 2002 which listed out the applicant’s medical conditions. However, those various conditions were unsubstantiated. 14.By 1 August 2002, because of the applicant’s refusal to participate further in the disciplinary proceedings, it was then decided to prepare a submission to the Commissioner for him to decide whether this was a suitable case for summary dismissal under section 31 of the Police Force Ordinance. However, this proposed cause of action would have force-wide implications since section 31 had not been invoked since at least 1979. The circumstances for summary dismissal were carefully considered and legal advice was obtained. The report was only completed on 31 January 2003. The senior management took some time to consider it, but by 11 September 2003 the judicial review application has commenced. It must be stated here that there was certain delay on the consideration of this case by the Police Force. 15.Eventually the police has been advised that the issue whether the applicant is fit to participate further in the disciplinary proceedings should best be determined on medical evidence. Consequently, the Department of Justice wrote to the applicant inviting him to submit medical reports on his physical and mental condition and to be examined by doctors nominated the respondents. However, the applicant refused such an invitation. The respondents then took out a summons inviting the court to make such an order. The application was heard before me and I have decided that the court has no jurisdiction to make such an order except in personal injury litigation. However, the failure of the applicant to submit to medical examination by doctors nominated by the respondents would be a matter of comment by the respondents. 16.In this case because of the applicant’s failure to produce sufficient medical evidence to substantiate his complaints of being unfit to attend any further disciplinary proceedings or allow himself to be examined by the respondents’ doctors, the court could not conclude that the applicant is unfit or unable to participate in further disciplinary proceedings. 17.As no final decision has been taken in the applicant’s case, it would be premature to challenge the decisions in this judicial review on the following grounds, namely :
18.The Secretary for the Civil Service has not “failed or refused” to grant the applicant retirement. He has simply decided to postpone consideration of this question until the disciplinary proceedings are concluded. 19.The right to pension would only become a right after retirement from public service. The retirement itself, however, is not “a right” but a matter of discretion. Section 6(1) of Cap.89 provides that :
20.The alleged offence occurred well before the injuries of the applicant. It is therefore important to have a determination of the disciplinary proceedings first since the award upon conviction is likely to influence the pension granted. 21.Both the co-accused were awarded “compulsory retirement with deferred benefits”, that is, the pension would not become payable until age 55. 22.At present, the applicant is aged 36. The applicant is hoping to avoid the likely consequences of the disciplinary proceedings and is actually trying to force the respondents to grant him retirement on medical grounds with an early pension. However, the respondents must be convinced on credible evidence first that there is no fair way in which the disciplinary proceedings can be concluded before such an action is to be taken. 23.Secondly, the Commissioner of Police has not failed or refused to conclude the disciplinary proceedings against the applicant. As I have said herein before, there is some unfortunate delay but the proceedings are still underway and to some extent the delay is also caused by the applicant’s refusal to participate. 24.I accept the submissions of the respondents that the proper way is to allow the appropriate tribunal to proceed to determine the disciplinary proceedings, and the respondents have demonstrated that the Commissioner is actually ready and willing to resume the disciplinary proceedings forthwith. At the resume hearing, the applicant or his representative can then apply, if he wishes to do so, to the appropriate tribunal for a stay of the proceedings, if the proceedings have become oppressive or otherwise an abuse of the tribunal’s process. It is said in Archbold Hong Kong2004, paras. 4-46 and 4-48 that :
25.The appropriate tribunal can then determine this issue properly on the evidence presented to it, rather than for this court to determine this issue simply on the bare assertions contained in affidavits and letters without any proper medical evidence in support. 26.In this respect, just four days before the hearing, the applicant submitted two further affirmations, one from his girlfriend and the other one from himself, exhibiting a psychiatric report by Dr Chen. 27.However, the psychiatric report of Dr Chen does not, in any event, establish the incapacity of the applicant for the following reasons, namely :
28.Consequently, even if this further piece of evidence is admitted, there is no proper bases to support the application for the order sought from this court. This court is supposed to be reviewing the decision-making tribunal and should not proceed to make the decision itself. The decision should be left to be made by the appropriate tribunal. Conclusion 29.For the aforesaid reason, the application for judicial review is dismissed with an order nisi for costs to the respondents. The applicant’s own costs be taxed according to the Legal Aid Regulations.
Mr Gerard McCoy, SC, instructed by Messrs George Tung, Jimmy Ng & Valent Tse, assigned by the Director of Legal Aid, for the Applicant Mr Simon Westbrook, SC, on fiat for the Secretary for Justice, for the 1st and 2nd Respondents Appeal by the applicant to Court of Appeal. Appeal dismissed. Please refer to the appeal jdugment of CACV370/2004 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment