Tse Leung Tung v. Commissioner of Police

HCAL 26/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 26 OF 2004

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BETWEEN

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Before: Hon A Cheung J in Court

Date of Hearing: 13 May 2005

Date of Judgment: 13 May 2005

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J U D G M E N T

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1.This is an application for leave to apply for judicial review against the decision made in a set of disciplinary proceedings that the Applicant had faced.  As a result of the proceedings, he was “awarded” the punishment of severe reprimand together with that of compulsory retirement with deferred benefit from the police force, he having served as a police officer at the rank of senior police constable for 21 years.  The disciplinary proceedings arose out of his grave financial difficulties that resulted in a bankruptcy order that was made against him.

2.Like many of these cases that have come before the court, the Applicant was charged with the disciplinary offence of failing to be prudent in his financial affairs which resulted in serious embarrassment, which impaired his operational efficiency, contrary to Police General Order, chapter 6-01(8).  Having exhausted the statutory appeal procedure, the Applicant now comes to this Court and seeks to challenge the award of compulsory retirement on the ground that he had a clear disciplinary record and an excellent service record with a number of compliments that had not been fully taken into account in the sentencing process.

3.Moreover, he argues that the senior police officer who made the award placed undue reliance on a statement of a supervising officer who only worked with the Applicant for a short period of time and whose statement did not fully reflect the past service record of the Applicant.

4.The Applicant also says that his operational efficiency has not been affected by his financial difficulties and indeed after the making of the bankruptcy order he has become debt-free and is no longer under the pressure of indebtedness.

5.In short, he says that the award of compulsory retirement that has been made against him is Wednesbury unreasonable. 

6.I do not accept these arguments.

7.It is true that the supervising officer had made a statement setting out what he knew about the Applicant which was placed before the senior police officer who made the awards.  But that was not the only piece of evidence or document that had been placed before him nor was it the only material that he took into account before he decided on the awards. 

8.According to the senior police officer’s record of proceedings, before he decided on the awards he had examined the Applicant’s record and mitigation.  He specifically noted that the Applicant had over 21½ years service and a clear disciplinary record.  He also noted that he had accrued one compliment from the director of operations, two regional commander’s compliments, three district commander’s compliments, four senior superintendent’s compliments and five superintendent’s compliments.  He also observed that his record was good overall.

9.Apart from the service record, the senior police officer also considered the mitigation statement that had been submitted before him.  He referred to the normal tariffs for cases of the present type.  He noted that as a result of his serious debt, the Applicant’s “senior officers” lost faith in his ability to fulfil all of his primary functions in the police force.  He noted that the Applicant was disarmed and denied access to firearms, his integrity and honesty were called into doubt and he was transferred to a position where he would be under closer supervision.

10.According to the senior police officer, after very careful reflection, he was unable, having regard to the full circumstances of the case, to convince himself that the Applicant properly merited consideration for further employment in the police force.  He specifically noted that he “remained aware of the worthwhile contributions [the Applicant] had made during his career”.  He then made the awards that have been mentioned above.  The awards were confirmed by the force discipline officer and as already mentioned, the appeal to the Deputy Commissioner of Police against the awards was dismissed.  Both the force discipline officer and the deputy commissioner noted specifically that they had respectively considered, amongst other things, the Applicant’s “service record”.

11.I therefore reject the argument that the past service record of the Applicant has not been fully or fairly taken into account. 

12.Nor do I accept the arguments based on the statement made by the supervising officer, i.e. the alleged inadequacies in the statement and the allegedly lack of working relationship with the Applicant to enable the supervising officer to make the statement.  The supervising officer must have prepared his statement from matters within his personal knowledge or from information coming from sources that he deemed satisfactory and reliable.  There is nothing to suggest otherwise. 

13.I also reject the argument that the Applicant’s operational efficiency has not been affected by his financial predicament or bankruptcy.

14.It is true that the senior police officer said “senior officers” had lost faith in the Applicant’s ability when in fact the supervising officer’s statement only said he himself had lost faith in the Applicant.  From the record of proceedings, it is plain that the senior police officer was basing what he said on the supervising officer’s statement and quite obviously “senior officers” was a typo and was meant to read “senior officer”. 

15.Regardless of this mistake, there were, in any event, ample materials before the senior police officer to justify his awards.

16.As has been noted time and again by the courts, it is a general rule that each disciplinary body is in a better position than the courts to determine the true effect and impact of a member’s activities and to judge the appropriate level of punishment that should be imposed.  The police force is no exception to this general rule.  As has been noted by Ma CJHC in Tsang Hing Shing v. Commissioner of Police, CACV 192/2003 (17 December 2004), paragraph 32(3), “[t]he Courts will not interfere unless something has gone seriously wrong and an irrational decision is made”.  Ma CJHC referred to a well-known passage in the judgment of Nazareth VP in the case of Au Yeung Kwok Hing v. The Attorney General for and on behalf of the Commissioner of Police, Civil Appeal 205/1994 (7 February 1995) at pages 22-23 where the Vice President said:-

“It is helpful to have regard to some of the considerations which have led to the well-established nature of the court’s limited supervisory jurisdiction in judicial review.  It is to the Commissioner and his officers that the determination and punishment of disciplinary charges have been entrusted by the legislation, and not the courts.  And in discharging that function, the former are entitled, and must be presumed to have been expected, if not required, to bring to bear their knowledge and experience of the requirements and operations of the Police Force; and likewise to assess awards in the light shed by the nature and circumstances of the misconduct upon the desirability and appropriateness of the offending officer remaining in the Force.”

17.Having considered the papers before me, I am of the view that this is far from a case where something seriously wrong has happened and an irrational decision has been arrived at.  There is simply no arguable ground, even upon further investigation, to pursue a successful application for judicial review. 

18.For all these reasons, the application for leave is dismissed with no order as to costs.

Mr Kwong Ki Tack instructed by Messrs Tam, Pun & Yipp, for the Applicant