Lau Kwok Fai Bernard v. Commissioner of Police and Another

CACV93/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 93 OF 2005

(ON APPEAL FROM HCAL NO. 95 OF 2003)

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BETWEEN

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Before : Hon Ma CJHC, Stock & Tang JJA in Court

Date of Hearing : 10 October 2006

Date of Judgment : 10 October 2006

Date of Handing Down Reasons for Judgment : 31 October 2006

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REASONS FOR JUDGMENT

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Hon Ma CJHC :

1.By a judgment handed down on 29 December 2004, Chu J dismissed the Applicant’s application for judicial review in relation to two decisions : a decision of the Commissioner of Police (“the Commissioner”) dated 1 June 2001 and the decision of the Secretary for the Civil Service (“the SCS”) dated 10 June 2003.  The Applicant appealed the dismissal of his application.  On 10 October 2006, after hearing counsel (Mr Philip Dykes SC for the Applicant, Mr Anthony Ismail for the two Respondents), we dismissed the appeal with costs, with the Reasons for Judgment to be handed down.

2.The facts have been carefully set out in Chu J’s judgment and I need only refer to them in summary : -

(1)	The Applicant was a police officer, joining the Force in January 1983 and rising to become a Senior Inspector in 1988.
(2)	On 18 September 2000, he was disqualified for driving for a period of 6 months, having accumulated sufficient demerit points to justify a disqualification.  On 19 November 2000, he was arrested and later charged for speeding, driving while disqualified and driving without third party insurance.  On 31 May 2001, he pleaded guilty to all charges (having initially contested them), and was fined and disqualified from driving all classes of vehicles for 16 months.
(3)	Following these convictions, by a decision of the Commissioner made on 1 June 2001 (“the first Decision”), it was ordered that : -
	(a)	the Applicant be interdicted from duty with effect from 1 June 2001;
	(b)	no pay or allowance be payable to the Applicant with effect from that date;
	(c)	the Applicant be required to give to the Commissioner at least 24 hours advance notification in writing of any intention to leave Hong Kong, and to seek exemption from the Commissioner should he wish to leave Hong Kong for any period that would affect the daily reporting conditions associated with his interdiction; and
	(d)	the Applicant was not to take up any form of paid employment without the permission of the Commissioner.
(4)	The Applicant was informed of the first Decision by a memorandum dated 1 June 2001.  The memorandum also informed the Applicant that consideration was being given to recommending to the Chief Executive that a terminatory award be imposed on him under section 37(5) of the Police Force Ordinance, Cap.232.  He was given a period of 14 days to make representations to the Commissioner and the Applicant did so on 15 June 2001.
(5)	However, before the Commissioner could make any recommendation to the Chief Executive, the Applicant was charged with the indecent assault of a woman police officer who was a subordinate of the Applicant.  The Commissioner thereupon decided to withhold making any recommendation until the Applicant’s trial.  On 22 October 2001, the Applicant was convicted of indecent assault and fined $3,000.  His appeal to the Court of First Instance was dismissed on 12 July 2002 and his application to the Appeal Committee of the Court of Final Appeal for leave to appeal was likewise dismissed on 18 September 2002.
(6)	After being invited by the Commissioner to make submissions as to why his service should not be terminated, the Applicant did so on 2 November 2002.  On 16 December 2002, the Commissioner (through the Deputy Commissioner of Police (Management) by delegated power) made recommendations to the Chief Executive.  The Applicant was permitted to make representations to the Chief Executive as well as comment on the recommendations made by the processing officers of the Civil Service Bureau.
(7)	On 9 June 2003, the SCS, as the delegate of the Chief Executive, made the following award against the Applicant (“the second Decision”), namely that : -
	(a)	the Applicant be dismissed with effect from 13 June 2003 for his criminal conviction for indecent assault;
	(b)	he be severely reprimanded and that there be forfeiture of one month’s pay with effect from 10 June 2003 in relation to the conviction for the offence of driving whilst disqualified;
	(c)	the Applicant be severely reprimanded and that there be forfeiture of one month’s pay with effect from 10 June 2003 in relation to the conviction for the offence of driving without third party insurance;
	(d)	he be reprimanded with effect from 10 June 2003 in relation to the conviction for the offence of speeding; and
	(e)	upon dismissal, the Applicant would forfeit all claims to any pension, gratuity and any other benefits or advantages, as well as to the emoluments withheld during interdiction.
(8)	The Applicant was informed of this award by a letter dated 10 June 2003.

3.On 15 September 2003, the Applicant applied for leave to issue judicial review proceedings in relation to the two Decisions.  Leave was granted on 3 October 2003.  In his application for judicial review, the Applicant relied on 8 grounds to challenge the Decisions.  As stated above, Chu J dismissed the application.

4.The Notice of Appeal dated 9 March 2005 contained some 15 grounds of appeal, 6 in relation to the first Decision, 9 in relation to the second Decision.  The hearing of the appeal was originally fixed to be heard on 19 October 2005 but the day before, the Applicant applied for legal aid.  This necessitated an adjournment of the appeal by reason of section 15 of the Legal Aid Ordinance, Cap.91.  The appeal was restored for hearing on 10 October 2006.

5.Mr Dykes was instructed late in the appeal before us.  We are grateful to him for dealing with the appeal in these circumstances.

6.Notwithstanding the number of grounds contained in the Notice of Appeal, Mr Dykes essentially sought to raise only two arguments : -

(1)

The first related to the second Decision.  The Applicant contended that the forfeiture of his pension, gratuity and other advantages and emoluments could not be ordered unless the Public Service Commission (“the PSC”) had first been consulted.  Reference was made to section 18 of the Public Service (Administration) Order.  It was said that there may have been no proper consultation with the PSC and that what consultation there may have been, was only informal.  This was an entirely new ground of challenge to the second Decision, hitherto not raised.

(2)

The other ground of appeal related to the first Decision.  Mr Dykes argued that the condition whereby the Applicant was required to give 24 hours notice in writing of his intention to leave Hong Kong and to seek prior exemption for leaving Hong Kong if this affected his daily reporting conditions, was an impermissible restriction of the Applicant’s right to freedom of movement (guaranteed under Article 31 of the Basic Law and Article 8(3) of the Hong Kong Bill of Rights).  Reliance was placed on the decision of Keith J in The Association of Expatriate Civil Servants of Hong Kong v The Chief Executive of HKSAR [1998] 1 HKLRD 615 and of the Court of Final Appeal in The Official Receiver and Trustee in bankruptcy of Chan Wing Hing v Chan Wing Hing, FACV7/2006, unreported, 20 July 2006.

7.Both points can be quite quickly disposed of in the circumstances of the present case.

8.As to the proposed ground of appeal relevant to the second Decision (relating to the loss of pension and other benefits), we refused leave to the Applicant to raise the point at this stage.  Not only was it extremely late, the proper consideration of the point required the admission of new evidence.  No evidence was placed before us in support of this new ground although it was hinted at in the Skeleton Arguments.  There was no explanation given for only raising this point at a very late stage either.

9.In relation to the ground of appeal touching on the freedom of movement, this was raised in the Form 86A and dealt with by the judge.  It is, with respect, certainly an arguable point.  The requirements in Article 31 of the Basic Law and Article 8(3) of the Bill of Rights that any restriction on the right can only be by restraint or provision of law may not necessarily be satisfied merely by general provisions such as that contained in section 46 of the Police Force Ordinance (the power of the Commissioner to make Police General Orders).  However, in the context of the present case, the point is entirely an academic one : the effects of the first Decision have long been overtaken by the second Decision.  Besides, the first Decision was made as long ago as June 2001 and there was no reason why the alleged offending part of that decision could not have been challenged much sooner.  There is of course jurisdiction in the court to deal with so called academic points (see Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at paragraph 20; Leung T C William Roy v Secretary for Justice, unreported, CACV317/2005, 20 September 2006), but there must be good reason to compel the court to do so.  There is none in the present case.

10.The judge, however, dealt with the point in her judgment and concluded that section 46 of the Police Force Ordinance provided a sufficient legal basis to permit the existence of Police General Orders that could be used to restrict the freedom of movement of police officers.  She also concluded that the relevant Police General Order satisfied the proportionality test.  For the reasons above stated, we are of the view that argument before us on this point is not now justified.  Although the judge’s decision on the point can in a sense be said to remain (since we have upheld the decision on another ground), it should not be thought that the contrary view is not arguable : far from it, it does have some substance although admittedly we have not heard extensive argument on the point.

11.For the above reasons, the appeal was dismissed with costs.

Hon Stock JA :

12.I agree.

Hon Tang JA :

13.I agree.

Mr Philip Dykes SC, instructed by Messrs Henry Wan & Yeung for the Applicant/Appellant

Mr Anthony Ismail, instructed by the Department of Justice for the 1st & 2nd Respondents/Respondents