Sit Wai Lok v. Commissioner of Police and Another

HCAL 69/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 69 OF 2004

---------------------

BETWEEN

----------------------

Before : Hon Hartmann J in Court

Date of Hearing : 20 June 2005

Date of Judgment : 20 June 2005

-------------------------

J U D G M E N T

-------------------------

1.The applicant in this matter is a sergeant in the Hong Kong Police Force who has been convicted of three charges of conduct contrary to the Police (Discipline) Regulations, Chapter 232.  He now seeks by way of judicial review to have his convictions quashed.

2.In the early hours of the morning of 25 September 2002, the applicant was off duty at his home, an apartment in Tsuen Wan.  The applicant had difficulty sleeping.  He was concerned particularly with the noise being made by an air-conditioner in a nearby apartment.  Mr Kwong, his counsel, has submitted that a material concern at the time was that the noise being made may have indicated a source of danger rather than simply a source of annoyance.

3.In the result, two 999 telephone calls were made by the applicant.  As with all 999 calls, transcripts of the telephone conversations were recorded.  Those transcripts, it is accepted, have not revealed any complaints made directly or indirectly as to the apparent concern of the applicant that the source of the noise may have posed a danger.  Whatever his thoughts on the matter, therefore, the applicant appears not to have expressed them to the emergency line console.  His complaint, on all the evidence, centred on the fact only that the noise was a source of annoyance.

4.Despite what I consider to be a surprising use of the emergency line by a senior non-commissioned officer, a police unit was sent to his apartment.  It appears, however, that the unit was unable to locate the source of the annoyance.  When the sergeant in command of the unit attempted to explain this to the applicant, the applicant lost his temper.  He threw his warrant card onto a table and shouted at the officers that they were to leave his apartment.  This conduct on his part formed the basis of the 1^st charge against him, the charge being one of conduct to the prejudice of good order and discipline, contrary to Regulation 3(2)(c) of the Police (Discipline) Regulations.

5.After sending the police team on its way, the applicant however was not happy to let matters rest, not even until the beginning of the working day.  The applicant made the second 999 call.  This time he made the call to complain about the manner in which the police party had gone about its duties, demanding that a formal ‘complaint against police’ file be opened.  On this occasion, the applicant spoke to an inspector.  It is asserted that he was again rude and abrupt.  This course of conduct gave rise to the 2^nd charge, again, conduct to the prejudice of good order and discipline.

6.The 3^rd charge also concerned this second 999 call, this charge being one of conduct calculated to bring the public service into disrepute, contrary to Regulation 3(2)(m) of the Police (Discipline) Regulations.  In respect of this charge, it is necessary to cite the particulars :

“Sergeant 13087, Sit Wai Lok of the Hong Kong Police Force [the Applicant], you are charged that at 0335 hours on 25 September 2002, in Hong Kong, you did use the 999 emergency help line for approximately 2 minutes and 38 seconds to make a complaint against the police, instruct the 999 console operator in a rude and impolite manner to open a CAPO R/N immediately [a CAPO complaint], such acts being conduct calculated to bring the public service into disrepute.”

7.The applicant was found guilty of all three charges.  He appealed.  His appeal was dismissed.  The Deputy Commissioner of Police, noting that the prosecution witnesses had all been found by the Adjudicating Officer – the first instance tribunal of fact – to be honest and reliable and accurate in their testimony, said :

“Losing one’s temper or shouting loudly are not disciplinary offences on their own.  However, when these acts were considered in the context of the whole incident, they were good evidence to support the charges.  I consider there was sufficient evidence to support the three charges against the defaulter [the Applicant] and therefore dismisses appeal against the findings.”

He continued :

“The defaulter’s conduct and behaviour on the night in question was abusive, vindictive and totally unbecoming of an NCO [an non-commissioned officer].  His irresponsible attitude has resulted in a lot of scarce and valuable police resources being wasted on that night and subsequent investigations and proceedings.”

8.In the result, the applicant’s award of a severe reprimand was confirmed, this being the extent of his penalty, one of course which may have an effect on his career prospects.

9.Mr Kwong, the applicant’s counsel, has challenged the lawfulness of the disciplinary proceedings on two grounds.  He has confirmed that these are the only grounds being advanced.

10.In respect of the first two charges; that is, the charges of conduct to the prejudice of good order and discipline, he has said that the conduct of the applicant on the night in question, while admittedly not appropriate, could not be said by any reasonable tribunal to constitute conduct to the prejudice of good order and discipline.

11.Put bluntly, it has been said that the decision of the adjudicating officer, confirmed on appeal, was a decision which no reasonable decision maker could have reached, to use the old term, that it was irrational.  Frankly, the applicant has a very high hill to climb in this regard.  As was said by Godfrey JA in Tong Pon Wah v. Hong Kong Society of Accounts [1998] 3 HKC 82 at 94GH, [1998] 2 HKLRD 427 at 440 :

“Every professional body is entitled to apply its own professional judgment to a case in which one of its members is called on to justify his conduct in (allegedly) failing to observe a standard or guideline laid down by that professional body for the protection of those dealing with members of that professional body.  It is not, in my judgment, for this court to second-guess the professional judgment of a disciplinary committee such as this except where it can be seen that it has plainly misread the evidence and come to a conclusion which is contrary to the evidence or is otherwise plainly wrong.”

In the same case, Liu JA observed (at 97I-98B (HKC), at 443 (HKLRD)) :

“It must be recognised that over-legalising informal disciplinary proceedings is undesirable.  Most disciplinary tribunals are presided over by men or women with no legal qualifications.  Even solicitors chairing the Law Society Disciplinary Committee hearings are no professional judges.  I do not doubt that they are able to and can return correct verdicts, but these proceedings are often distressfully flawed in the courts by a fault-finding expedition in which non-professional judges are clearly more vulnerable.”

12.In an attempt to substantiate the challenge of irrationality, Mr Kwong has submitted that the applicant’s loss of temper did not of itself prove anything.  But, of course, the Deputy Commissioner accepted that to be the case : see the citation in paragraph 7 above.  Mr Kwong has said that throwing the warrant card onto a table and telling the police unit to leave were similarly actions which by themselves did not prove anything.  He has said that in matters of this kind so much is subjective.  Simply because one person believes another to be rude does not make it an objective fact.  That, in my view, is plain, indeed plain to the point of being trite.  Mr Kwong has said that it is for this court, in the context of the disciplinary regulations, to draw the line between what can and what cannot amount to conduct that does go to the prejudice good order and discipline.

13.In my judgment, however, it is not for this court to draw the line.  That is the wrong test.  The authorities to which I have referred make that clear.  It is for a professional body – and the police force is such a body – to apply its own professional judgment to cases in which its members are accused of failing to observe a standard laid down for the protection of the integrity of that body.  This court should only intervene when it can be seen that there has plainly been a misreading of the evidence by a professional disciplinary tribunal or that a conclusion has been reached which is plainly contrary to the evidence or that the tribunal has been guilty of some other material error which goes to the lawfulness of the process.

14.It must be understood first that the Hong Kong Police Force is a disciplined force.  In the appeal judgment of Wong Wai Tak v. The Secretary for the Civil Service, CACV611/2001 (unreported), Mayo VP cited with approval what I had said in a matter not dissimilar to the present one :

“Disciplined 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 dependent upon discipline are challenged as being perverse or irrational.”

15.The real issue is : have the disciplinary tribunals (of first instance and of appeal) come to a conclusion which is contrary to the evidence or otherwise plainly wrong so that the decision they have reached is one which a reasonable decision maker could not reach?  In my judgment, the issue does not require much contemplation.  I fail utterly to see how it can be said that it was not possible for the adjudicating officer at first instance to assess the evidence of all the witnesses and on the basis of that evidence to come the objective conclusions that he did.

16.I look again to the basic circumstances which, it must be remembered, the tribunals were entitled to consider in the round.  The applicant, an officer holding the rank of sergeant, having supervisory duties, in the early hours of the morning, without in any way informing those to whom he spoke on the telephone that he was concerned as to danger, made use of the 999 emergency line to call police officers to his premises to try and find the source of an annoying air-conditioner.  When the officers were unable to locate the source of the annoyance, even though they were colleagues, the applicant lost his temper with them, threw down his warrant card and ordered them out of his home.  Thereafter, the applicant used the 999 line again, this time not to summon help but to lodge a complaint.  This second call was not, as I have said, to summon emergency help, but simply to say that the officers who had first come should be reported for the manner of their conduct.  This is something that could easily have been done in ordinary working hours.  It has been commented that this second use of the 999 facility constituted an abuse of the facility.  That would seem to be obvious.  The Deputy Commissioner considering the appeal found the applicant’s conduct in the early hours of that morning to be “abusive, vindictive and unbecoming”.  Whether I agree with that specific finding is not to the point.  It seems to me, however, to be an entirely rational finding on the evidence found proved.

17.In my view, the challenge going to the reasonableness of the convictions was always doomed to failure.  The facts found tell far too strongly against the applicant.

18.I now move to the second challenge made on behalf of the applicant.  This goes to the 3^rd charge, one of conduct calculated to bring the public service into disrepute.  This challenge has been argued on two bases.

19.The first basis is that the conduct, seen as a whole, was simply not capable of bringing the public service into disrepute.  I find nothing in this ground.  It is essentially a repetition of the earlier submission going to reasonableness.

20.The second basis has somewhat more substance.  Put succinctly, as I understand it, the second basis of challenge is this : it is not possible to commit the offence of committing acts calculated to bring the public service into disrepute unless the conduct takes place in circumstances in which other persons, that is, persons other than members of the service, are either witnesses or are likely to learn of the conduct.  That is because whether the service is likely to be brought into disrepute can only be determined by having regard to the likelihood of the conduct becoming known to persons outside the service, persons capable of viewing that conduct, and through it the integrity of the service itself, in an adverse light.  To express it another way, an incident which involves police officers only, in respect of which the broader public is unlikely to have knowledge, is incapable of being made the subject of the offence.

21.I do not agree.  In my judgment, an act (that remains undisciplined) may bring the police force – itself a public service – into disrepute even though it is only witnessed by police officers.  A police officer may form an adverse view of his own force by reason of the acts of other officers.  Often, as the expression goes, the rot is first perceived from within.

22.In any event, the offence is one of conduct calculated to bring the public service into disrepute.  In this regard, the Police Disciplinary Manual, in giving guidance to officers, says the following :

“The word ‘calculated’ simply means likely.  In deciding whether a conduct is likely to bring the public service into disrepute, a person considering the suitability of the charge should put himself in the position of the proverbial reasonable citizen of Hong Kong and then ask himself whether the police officers’ conduct would be likely to lower the reputation of the public service in the mind of that reasonable citizen.  Or to put it in another way, an officer should ask himself:

Has the officer’s proven conduct fallen short of the standards of behaviour which a reasonable member of the public has a right to expect from officers of the Hong Kong Police Force?

For a conduct calculated to bring the public service into disrepute charge, there is no need for the public to be present.  That is, the conduct does not necessarily have to be witnessed by a member of the public.  It is enough for the prosecuting officer to establish and the adjudicating officer to be satisfied that the conduct from which the complaint has arisen falls below the standards of behaviour that the public has a right to expect of police officers.”

23.During the course of submissions, Mr Cooney, counsel for the respondent, drew my attention to the authority of Catts v. Murdoch [1917] 24 CLR 160, a decision of the High Court of Australia which in my view is of direct assistance.  The appellant in that case had made a speech at a public meeting.  In that speech, he had made inflammatory statements about Japan.  At the time, the First World War being waged, Japan was an ally of Australia.  The appellant had been convicted of the offence of making statements ‘likely’ to prejudice the British Empire’s relations with a foreign power.  He appealed on the basis that there were no Japanese present at the meeting and that accordingly, whatever he said, it was not ‘likely’ – no Japanese being there – to prejudice relations with Japan.  The court found that, in using the word ‘likely’, the legislature meant to convey the same meaning as ‘calculated to’ and that nobody could have had the slightest doubt that the words spoken at the meeting had at least been calculated to prejudice relations between Great Britain and Japan.

24.I agree with Mr Cooney that what must be considered is the nature of the conduct itself.  If that conduct is of a kind which would bring dishonour to the service then it is conduct calculated to bring the service into disrepute.

25.For the reasons I have given, this application must be dismissed.  Costs will follow the event.

Mr Kwong Ki-tack, instructed by Messrs Jal N Karbhari & Co., for the Applicant

Mr Nicholas Cooney, instructed by the Department of Justice, for the 1^st and 2^nd Respondents