Chung Wing Yim v. Commissioner of Police

CACV 290/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 290 OF 2005

(ON APPEAL FROM HCAL 96 OF 2003)

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BETWEEN

Before : Hon Cheung JA, Yeung JA and Suffiad J in Court

Date of Hearing : 8 March 2006

Date of Judgment : 17 March 2006

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J U D G M E N T

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Hon Cheung JA :

Facts

1.The appellant was a sergeant of the Hong Kong Police Force (‘the Police’).  In September 2002, the Police charged him with six disciplinary offences.  The first five were for breach of Regulation 3(2)(j) of the Police (Disciplinary) Regulations (‘the Regulations’).  He was alleged to have made false statements concerning his financial position.  The sixth charge was for breach of Police Order (i.e. PGO 6-01(8) contrary to Regulation 3(2)(e) of the Regulations).  The allegation was that he had been imprudent in managing his financial affairs by incurring unmanageable size of debts whereby his efficiency as a police officer was impaired.

2.The appellant pleaded guilty to the charges.  The disciplinary tribunal who heard this case referred the matter to the Senior Police Officer (‘SPO’) for the purpose of sentence.  The SPO imposed the following sentence which was described as an ‘award’ in the Regulations.  For the first five charges, the appellant was dismissed from the Police but this was to be suspended for a year.  For the sixth charge he was given an award of ‘Reduction in rank’.

3.The case was then reviewed by the Force Discipline Officer (‘FDO’).  He informed the appellant that he intended to impose a more severe sentence for all the charges, namely, ‘Compulsory Retirement with Deferred Benefits’ and invited him to submit representation.  The appellant duly lodged a written representation.  After considering the written representation by the appellant the FDO increased the sentence as he had indicated.

4.The appellant appealed to the Commissioner of Police (‘the Commissioner’) who by his delegate the Deputy Commissioner of Police (Management)(‘DPC’) confirmed the sentence and dismissed the appeal.

5.The appellant then applied for judicial review against the decisions of the SPO, FDO and the DPC.  Chu J refused the application.  The appellant now appeals.

Background of the disciplinary charges

6.The background leading to the disciplinary charges was summarised by Chu J as follows :

‘ 3.   In the course of a police investigation into a moneylender in 2001, the applicant was found to be one of its borrowers.  Consequently, the applicant was interviewed and a statement was taken, in which he stated he had incurred loans totaling $100,000.  Thereafter the applicant was interviewed again on a monthly basis on 27 September, 26 October, 25 November and 30 December 2001.  On each of these occasions, he stated verbally that his financial situation had remained unchanged.   All these written and verbal statements were later found to be untrue.

4.   On 2 January 2002, three days after the last interview, the applicant filed a petition for bankruptcy and the debts involved amounted to $11,074,526 (this sum should properly be $1,074,526).  As a result, the applicant was not permitted to continue drawing firearms effective from 7 January 2002.  He was posted to the report room instead of the PSU.  He was also not permitted to have access to the safe and to handle cash and valuable properties.  The applicant was adjudged bankrupt on 2 May 2002.’

Grounds of appeal

7.Although the appellant’s notice of appeal covered the decisions of the SPO, FDO and the DPC, at the hearing, Mr. Lau counsel for the appellant, only pursued the appeal on the decisions of the FDO and DPC.

8.The focus of Mr. Lau who had made an able submission on behalf of the appellant, was that both the FDO and DPC had ignored the mitigation submitted by the appellant.  This in fact was the basis of the judicial review that was lodged against the decisions of these three police officers. 

9.The mitigation took the form of reference letters from the appellant’s superior officers who highly praised him as a very capable police officer.  The SPO obviously had taken them into account and referred to them in his decision as follows :

'I have read the mitigation submitted by the defaulter and those on his behalf, but whilst noting the favourable comments note that most of the contributors were duped by the defaulter at the time and were unaware that he was reprehensibly covering up his indebtedness and deceiving them.

....

However, in view of the fact that the officer pleaded guilty to each charge, and taking into account his good record of service and his previous compliments and commendations, I am of the view that the defaulter has shown remorse and is young and resourceful enough to start over.  Consequently I suspend each of the awards for ‘dismissal’ for one year, however the award of ‘Reduction in Rank’ remains.'

10.It was for this reason that Mr. Lau abandoned his appeal against the decision of the SPO but he maintained his challenge against the FDO and DPC.

The hurdle

11.The hurdle that Mr. Lau immediately faced is that there is no evidence at all that these decision makers had ignored the mitigation both in terms of its existence and its weight. 

12.In respect of its existence, the reference letters were included in the record of proceedings relating to the charges.  Although the decisions of the FDO and DPC were not preceded with an oral hearing, this does not mean the mitigation had been ignored.

13.The written representation of the appellant to the FDO referred to the mitigation letters.  The FDO in his written decision of 7 November 2002 expressly stated that he had carefully considered the written representation.  This was a repeat of what he had said in Memo M. 7 of 6 November 2002.  Likewise for the DPC in his decision of 16 December 2002 he had stated that :

'I have carefully considered the ROP (i.e. Record of Proceedings’) and all the related papers in this file, in particular, the defaulter’s appeal and ‘last word’ representation.

....

5. In considering the Defaulter’s appeal, I have also taken into account of his guilty plea, his mitigations and those on his behalf, and his good record of services.  However I cannot find sufficient merits to justify a lenient award.  I therefore dismiss the appeal.  The awards by the FDO at para. 4 of M. 7 are to stand.'

14.Further the appellant had failed to show that the FDO and the DPC had not given the mitigation its proper weight.  While the SPO was of the view that a less severe sentence was to be called for, it does not mean that this was an appropriate sentence.  The charge of imprudence in managing the financial affairs is by itself a serious charge : see the decision of this Court in Leung Fuk Wah v. Commissioner of Police [2002] 3 HKLRD 653.  What was even more serious was the lies told by the appellant to the interviewing officers.  Three days after he maintained that he only had a debt of $100,000, he filed for bankruptcy in respect of a debt of over $1 million.  His integrity was seriously called into question.  In the light of this and despite the appellant’s excellent record as a police officer, it cannot be said that the decisions of the FDO and the DPC were irrational or reflected a failure to take into account relevant considerations.

Conclusion

15.Chu J was correct in her decision and the appeal is dismissed with costs nisi to the respondent.  The Appellant’s own costs is to be taxed in accordance with Legal Aids Regulations.

Hon Yeung JA :

16.I agree.

Hon Suffiad J :

17.I agree.

Mr. Nicholas Y. K. Lau, instructed by Messrs Kitty So & Tong, for the Applicant/Appellant

Ms Ada Chung, Deputy Principal Government Counsel of Department of Justice, for the Respondent