Yeung Chung Ming v. Commissioner of Police

CACV 13/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 13 OF 2006

(ON APPEAL FROM HCAL NO. 125 OF 2003)

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BETWEEN

______________________

Before : Hon Tang VP, Hartmann J and Lam J in Court

Date of Hearing : 30 January 2007

Date of Judgment : 13 February 2007

______________________

J U D G M E N T

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Hon Tang VP:

Introduction

1.The facts can be stated briefly.  They are not controversial.

2.The applicant was a police sergeant.  On 22 October 2003, he was charged with two counts of fraud under section 16A(1)(b) of the Theft Ordinance, Cap.210.

3.On 23 October 2003, he was interdicted by the Commissioner of Police (“the Commissioner”) with effect from 24 October 2003.  At the same time, he was told that the Commissioner was considering giving a direction under section 17(2)(a) of the Police Force Ordinance, Cap. 232 (“the Ordinance”), as to the proportion of his pay which the applicant should be allowed to receive.

4.Following representations by the applicant, the Commissioner directed that 10% of his pay should be withheld with effect from 18 November 2003.  But following further representations by the applicant, on 23 December 2003, the Commissioner decided that only 7% of his pay should be withheld.

5.In the meantime, on 9 December 2003, leave was granted by Hartmann J to the applicant, to apply for judicial review to challenge the decision to suspend 10% of his pay, subsequently amended to challenge the 7% deduction.

6.The applicant was convicted as charged on 27 January 2004.

7.On 28 January 2004, the applicant’s salary was stopped pursuant to section 37(4) of the Ordinance.

8.The evidence before us does not disclose whether following the applicant’s conviction, he was dismissed from the Police Force.

Article 11(1) Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBORO”)

9.In the appeal, we are concerned with the legality of the withholding of his pay between 23 December 2003 and 27 January 2004.  There was no deduction of pay between 18 November 2003 and 23 December 2003.  The power to withhold payment is provided in section 17 of the Police Force Ordinance (“PFO”).

10.It is necessary to consider section 17 in its entirety.  It provides:

“	17.	Interdiction
		(1)	If the Commissioner considers that the public interest requires that a police officer other than a gazetted police officer should cease to exercise the powers and functions of his office forthwith, he may interdict the police officer from the exercise of such powers and functions where-
			(a)	disciplinary or criminal proceedings are being instituted or are about to be instituted against such officer; or
			(b)	such officer is the subject of an inquiry into his conduct in connection with his duties as a police officer or the subject of an investigation into any report, allegation or suspicion that he has committed an offence.
		(2)	A police officer who has been interdicted under-
			(a)	subsection (1)(a), shall be allowed to receive such proportion of his pay, not being less than one-half, as the Commissioner shall in every case direct, until such time as he may be convicted of an offence whereupon the matter shall be determined under section 37(4);
			(b)	subsection (1)(b), shall not on that account receive less than his full pay.
		(3)	If the proceedings, inquiry or investigation do not result in the dismissal or other punishment of such officer, he shall be entitled to the full amount of the pay which he would have received if he had not been interdicted.
		(4)	If the proceedings, inquiry or investigation result in punishment other than the dismissal of such officer, he may be paid such proportion of the pay withheld as a result of his interdiction as the Commissioner may direct.”

11.The amount involved is $2,211.68.

12.However, the applicant’s challenge involves important principles, in particular, the presumption of innocence under Article 11(1).

13.Article 11(1) provides:

“

(1)

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”

14.The HKBORO is materially the same as the International Convention on Civil and Political Rights (“ICCPR”), which has been entrenched by Article 39 of the Basic Law.  Article 11(1) is indistinguishable from Article 14(2) of ICCPR and Article 6(2) of the European Convention on Human Rights (“ECHR”).

15.The judge held that there has been a violation of Article 11 because:

“… the curtailment of Mr Yeung’s pay amounted to a presumption of his guilt.”  para. 48

16.He quashed the Commissioner’s direction to withhold part of the applicant’s pay as being contrary to Article 11(1).

17.The judge referred to certain decisions of the European Court of Human Rights, and held that, after examining all relevant circumstances:

“… the court then assesses whether the conduct or statements for which the government is being criticized, imply a presumption of guilt before trial.”  para. 43.

18.The judge arrived at that conclusion essentially on the basis of the following two cases.

19.Allent Ribemont v France [1995] 20 EHRR 557 was concerned with statements made by the Minister of Interior and senior police officers in a press conference.

20.The European Court of Human Rights described those statements as follows:

“	2.	Content of the statements complained of
		39.	Like the applicant, the Commission considered that the remarks made by the Minister of the Interior and, in his presence and under his authority, by the police superintendent in charge of the inquiry and the Director of the Criminal Investigation Department, were incompatible with the presumption of innocence. It noted that in them Mr Allenet de Ribemont was held up as one of the instigators of Mr de Broglie’s murder.
		……
		41.	The Court notes that in the instant case some of the highest-ranking officers in the French police referred to Mr Allenet de Ribemont, without any qualification or reservation, as one of the instigators of a murder and thus an accomplice in that murder. This was clearly a declaration of the applicant's guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority. There has therefore been a breach of Article 6(2).”

21.The court went on to consider the nature of the presumption of innocence and said:

“	33.	The Commission acknowledged that the principle of presumption of innocence was above all a procedural safeguard in criminal proceedings, but took the view that its scope was more extensive, in that it imposed obligations not only on criminal courts determining criminal charges but also on other authorities.
	……
	36.	The Court considers that the presumption of innocence may be infringed not only by a judge or court but also by other public authorities.”

22.Krause v Switzerland (App. No. 7986/77) 13 D.R. 73 (3/10/1978), a decision of the European Human Rights Commission.  There, the Commission was concerned with statements by the Federal Counsellor, Head of the Federal Department of Justice and Police, in a television interview.  In its opinion, the Commission said:

“… the Commission attaches particular importance to their wording.  In both the German and the French version of the interview Mr Furgler stated that the applicant is responsible for criminal acts.  But he added immediately that she will have to stand trial and in the French interview he even went on to say that he did not know what the judgment would be.”

23.In Krause, in para. 3 of the extract, the Commission is recorded to have expressed the following view:

“… Article 6 (2), therefore, may be violated by public officials if they declare that somebody is responsible for criminal acts without a court having found so.  This does not mean, of course, that the authorities may not inform the public about criminal investigations.  They do not violate Article 6 (2) if they state that a suspicion exists, that people have been arrested, that they have confessed etc.  What is excluded, however, is a formal declaration that somebody is guilty.” (Emphasis added)

24.It is of interest to note the headnote in Krause described this as new jurisprudence:

“Article 6, paragraph 2 of the Convention: The presumption of innocence is not limited to procedural guarantees; it requires that no representative of the State declares that a person is guilty of having committed an offence, before that guilt is established by a court (New jurisprudence).”

25.In Krause, the Commission concluded that in that particular case, the presumption of innocence had not been violated.

26.However, the presumption does not stop at statements.

27.In Minelli v Switzerland (App. No. 8660/79) (25/3/1983), the European Court of Human Rights was concerned with an order for costs made against Minelli by a Swiss court, following termination of a private prosecution for criminal defamation against Minelli on the ground that the statutory limitation period had expired.

28.Minelli was ordered to pay two-thirds of the costs of the investigation and trial and compensation in respect of the private prosecutors’ expenses.

29.After examining the evidence, the European Court of Human Rights concluded:

“	37.	In the Court’s judgment, the presumption of innocence will be violated if, without the accused’s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty.
	38.	… In this way the Chamber of the Assize Court showed that it was satisfied of the guilt of Mr. Minelli, an accused who, as the Government acknowledged, had not had the benefit of the guarantees *568 contained in paragraphs 1 and 3 of Article 6. Notwithstanding the absence of a formal finding and despite the use of certain cautious phraseology (‘in all probability’, ‘very probably’), the Chamber proceeded to make appraisals that were incompatible with respect for the presumption of innocence.”

30.Another decision to similar effect is Böhmer v Germany [2004] 38 EHRR 19, where the court said:

“

54.

The presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty.”

31.I also note the following observation on Article 14(2) of ICCPR, which can be found in Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 14 (1994):

“

7.

The Committee has noted a lack of information regarding article 14, paragraph 2 and, in some cases, has even observed that the presumption of innocence, which is fundamental to the protection of human rights, is expressed in very ambiguous terms or entails conditions which render it ineffective. By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial.”

32.I gather from these authorities that the presumption of innocence would be infringed if a statement or conduct of a relevant authority states or implies that the person, who has been charged with an offence, is guilty of the offence. What is a relevant authority for the purpose of Article 11(1) will require careful consideration.  The courts and the prosecuting authority would normally be included.  In this appeal, I assume that the Commissioner is a relevant authority.  I maintain an open mind whether the government, in every manifestation, is necessarily a relevant authority for the purpose of Article 11(1).  But it is not a point which has to be decided in this appeal.

33.Mr McCoy SC, who appears in the appeal, with Ms Ng, who appeared below as well, would go further, he submitted that the true effect of the presumption of innocence is as follows:

“After X has been charged with a criminal offence and before a verdict in that trial, any decision by the State organs in relation to X which adversely interferes with X and which could only be made because X is a person charged with a criminal offence, violates the substantive content of X’s right to the presumption of innocence, unless such decision is demonstrably necessary to achieve a legitimate societal objective that displaces X’s right.”

34.I wholeheartedly subscribe to the view that Article 11(1) must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory.  But the presumption of innocence is not a new concept.  It lies at the heart of the common law.  No doubt, the HKBORO gave it a higher normative value.  It is above all a procedural safeguard in criminal proceedings.  Its scope is more extensive, but one must not lose sight of the context in which the presumption of innocence arose.  I am of the opinion, the test formulated by the European Court of Human Rights and followed by Reyes J, has given adequate recognition to this important presumption.

35.Mr McCoy submitted that the presumption of innocence leaves no room for the possibility that the person is guilty, such that, no state organ may act or proceed on the basis that the person might be guilty.

36.I do not agree that the presumption of innocence can have such far-reaching effect.  I find no support for Mr McCoy’s submission in the authorities or principle.

37.We drew Mr McCoy’s attention to section 11 of the Employment Ordinance, Cap. 57, which provides, where relevant:

“	(1)	Notwithstanding any other provision of this Ordinance or of any other law, an employer may without notice or payment in lieu suspend from employment any employee for a period not exceeding 14 days-
		……
		(c)	pending the outcome of any criminal proceedings against the employee arising out of or connected with his employment:
			Provided that where such criminal proceedings are not concluded within the period of 14 days such suspension may be extended till the conclusion of the criminal proceedings.”

38.I asked Mr McCoy whether the government as employer might employ a person on contract with terms similar to section 11.  He submitted that that would breach Article 11 even though the person might be employed to perform everyday tasks, such as cleaning.  I do not agree.

39.Turning to the particular circumstances of the applicant, Mr McCoy submitted that the applicant was entitled to be paid notwithstanding the interdiction because he was the holder of an office.  Any interference with this right runs foul of the principle as stated by him and recorded in paragraph 33 above.

40.He submitted that there was no relationship of master and servant between the Commissioner and the applicant.  That is correct.  But I do not agree that there was no contract of employment between a policeman and the government.  That the underlying relationship between the government and a government servant is contractual lies at the heart of the decision of the Court of Final Appeal in Secretary of Justice v Lau Kwok-fai & Anor [2005] 8 HKCFAR 304 and was actually so decided in the Court of Appeal.

41.Mr McCoy submitted that unless there was a suspension of the office, the applicant should continue to be paid.  Here I am not concerned with whether it is reasonable to provide that in the case of suspension or interdiction, a policeman should not be paid in full, but whether that would infringe the presumption of innocence.

42.Mr McCoy submitted that because a policeman occupies an office, his pay could not be suspended.  In support, he relied on a decision of the Court of Appeal in Ontario, Mahood v Hamilton-Wentworth Regional Board of Police Commissioners ETAL [1976] 14 O.R. (2d) 708.

43.Mahood was a police constable appointed by the Defendant Board (“the board”).  On 20 September 1974, he was charged with several offences under the Code of Offences which was a schedule to Regulation 680 under the Police Act 1970 C.351.  He was suspended from duty on 20 September 1974, pursuant to section 26(1) of the Regulations but continued to be paid by the municipality.  He was found guilty on all charges on 30 January 1975, and required to resign within 7 days or be dismissed.  On 4 February 1975, he appealed to the Ontario Police Commission.  On 14 February 1975, he was notified by the board that he was suspended.

44.The Court of Appeal decided that as a matter of construction of regulation 26(1) read with regulation 26(3), suspension under regulation 26(1) would not carry suspension of pay.

45.The provisions read as follows:

“	26	(1)	Where a constable or other police officer is suspected of or is charged with a contravention of an Act of the Parliament of Canada or of the Legislative Assembly of the Province of Ontario, or is suspected of or charged with an offence against the code, the chief of police may suspend him from duty, but [*710] where the constable or other police officer is not charged within forty-eight hours after being suspended, he shall be returned to duty.
			….
		(3)	Where a constable or other police officer is convicted of an offence for which a term of imprisonment is imposed, he may, notwithstanding any appeal, be suspended without pay.”

46.However, the Court of Appeal also decided on an alternative basis that:

“A police officer, in contrast to an employee or a party to a contract, is the holder of a public officer and while a municipality is obliged to pay the officer’s salary, the relationship of master and servant does not exist between them: see Reference re Constitutional Questions Act, [1957] O.R. 28 at pp.29-30, 7 D.L.R. (2d) 222 at pp.223-4, 118 C.C.C. 35, sub nom.  Reference re Power of Municipal Council to dismiss Chief Constable etc. (C.A.).  In my opinion, it follows that a police officer is entitled to be paid his salary, not in exchange or in consideration for the duties performed, but rather as a result of holding the office.”

47.In Bennest v Burnaby School District No. 41 [1997] 30 BCLR (3d) 372, Tysoe J of the British Columbian Supreme Court, commented on Mahood and said:

“

24

It is my view that Mahood could have been decided on the basis of the maxim expressio unius est exclusio alterius.  The legislation in that case specified the circumstance where a police officer could be suspended without pay and the inference was that the Legislature intended a suspension in any circumstance to be with pay.  I have some difficulty with the concept that a person should be paid for holding an office when they are not performing any of the duties of the office and it is necessary to pay another person to perform those duties.”

48.In any event, Mahood is inconsistent with Hong Kong and English authorities.  See Lau Kwok-fai v Secretary for Justice [2004] 3 HKLRD 570 in the Court of Appeal, Lam Yuk-ming and Ors v AG [1980] HKLR 815, and Wallwork v Fielding [1922] 2 KB 66.

49.In Wallwork, the English Court of Appeal was concerned with a borough police constable.  The first point in that case was whether the power of suspension conferred upon the Watch Committee by section 191(4) of the Municipal Corporations Act 1882, had been repealed.  That section provided:

“By s. 191, sub-s. 4: ‘The Watch Committee, or any two justices having jurisdiction in the borough, may at any time suspend, and the Watch Committee may at any time dismiss, any borough constable whom they think negligent in the discharge of his duty, or otherwise unfit for the same.’”

50.It held that it had not.

51.When dealing with the second point that “granted the power to suspend, that does not import the power to withhold pay during the suspension”, Lord Sterndale M.R. said at page 71:

“… I should have thought that power to suspend the operation of a contract necessarily suspended its whole operation including not only the performance of duty but also the right to pay during the period of suspension.”

52.Lord Sterndale then referred to Flannagan v Shaw [1920] 3 KB 96 and Hanley v Pease & Partners [1915] 1 KB 698, and concluded:

“… All these learned judges treat it, it seems to me, as indisputable that if there is a power of suspension which is exercised, the whole contract is suspended, the obligations on both sides are suspended.  It seems to me that is the inevitable meaning of suspension, and if there be any power necessary, there was express statutory power here to suspend the man from duty and that involves the suspension of payment for the discharge of the duty.  The contract is suspended with regard to its performance by both sides, not only by one; therefore I think that point also fails.”

53.In the same case, Warrington LJ said at page 74:

“I think the second point also fails.  It is said that the power to suspend does not involve the power to abstain from payment of salary.  In my opinion that argument is unfounded for this reason.  The relations are those of employer and employed.  If the employed is suspended from his functions as an employed person, it seems to me the effect of that is to suspend the relation of employer and employed for the time being; to excuse the servant or the employed person from performing his part of the contract, and at the same time to relieve the employer from performing his part of the contract.  It would be a most extraordinary thing if suspension (assuming that there is power to effect suspension) were to be so one-sided that the servant were to be excused from performing his part of the contract while the employer was to remain liable to perform his.  It seems to me that suspension suspends for the time being the contractual relation between the parties on both sides; the suspension, therefore, by the Watch Committee does involve suspension of payment by them, as well as of the performance of the duty by the police constable.”

54.Scrutton LJ agreed.

55.Lam Yuk-ming, a decision of this court, arose out of the suspension of certain government dispensers under regulations 611 of Civil Service Regulations (“CSR 611”).  The case was essentially concerned with the relationship between the Hong Kong Letters Patent 1917-1977 (a constitutional document), Colonial Regulations (held to be subsidiary legislations) and CSR 611 (made by the governor for the conduct and control of the public service).  It is not necessary for me to consider that aspect of the case.

56.In Lam Yuk-ming, the court adopted the approach in Wallwork, and Roberts CJ giving the judgment of the court said at 823:

“Our conclusion is this.  That the crown, when conferring power on the governor by Article XVI to suspend, intended that the power should carry with it the right to suspend without pay.  So CSR 611 is a proper exercise of the power of suspension conferred on the governor by the Letters Patent …”

57.Earlier Roberts CJ said at 822:

“Leaving the law on one side for the moment, what is the sensible approach?  We think it is this.  It is not in dispute that Article XVI confers a right to suspend ‘upon sufficient cause’.  Such a suspension means that the public officer ceases to perform any of the functions of his office.  Assuming that his suspension has been for proper cause, why should he be paid, when he has done no work?”

58.Mr McCoy submitted that Lam Yuk-ming supports his submission that interdiction and suspension are different concepts and are mutually exclusive.  He pointed to the summary at page 826:

“	To summarise our conclusions on this question-
	(a)	C.S.R. 611 must not conflict with Col. Regs.
	(b)	Suspension and interdiction are not the same.
	(c)	Col. Reg. 60 deals with interdiction with pay in specified circumstances.
	(d)	C.S.R. 611 provides for suspension without pay in other circumstances.
	(e)	C.S.R. 611 does not conflict with Col. Regs.”

59.But, there the court was dealing with the argument that CSR 611 conflicted with Col. Reg. 60 and was invalid.

60.On the same page, page 826, the Chief Justice explained:

“

48.

C.S.R. 611 deals with the suspension of an officer who has refused to perform any part of his duties, in connection with a trade dispute. Such a situation does not fall within any of the circumstances which give rise to interdiction under Col. Reg. 60.”

61.Interdiction is not a term of art, depending on the context, there may be no material difference between interdiction and suspension.  Moreover, as Mr Rimksy Yuen SC, who appeared for the Commissioner, submitted, section 17(1)(a) provided in terms that the Commissioner “may interdict the police officer from the exercise of such powers and functions …”.  It is artificial to suggest that the office has not been suspended.

62.But there is a more fundamental answer to Mr McCoy’s submission.  Section 17 provides for interdiction and the withholding of pay.  Subject to Article 11(1), it is clear that section 17 has and must be given effect.

63.So we must return to the question whether the power to withhold pay infringes the presumption of innocence.

64.The power to interdict was not challenged as being contrary to Article 11.  The judge did not deal with this power in his judgment.

65.However, he had this to say about constraint (for example, refusal of bail) which may be imposed on a person charged with a serious offence.  In para. 28 of his judgment, he explained why such constraints would not infringe Article 11:

“

28.

Where a person is charged with a serious criminal offence, the law recognises that certain constraints may have to be imposed on the individual.  This is done for practical reason.  For example, an individual may be arrested and denied bail pending trial.  This is not done because the person is presumed guilty before trial.  It is done because the gravity of the alleged crime is such that a putative offender should be prevented from posing a potential risk to the well-being society or from fleeing the jurisdiction to avoid trial and frustrate justice.  The individual’s right to be presumed innocent pending trial is balanced by a utilitarian need to protect the public and ensure that justice takes its proper course.”

66.I believe the reference to utilitarian need to mean that the person was not denied bail as a punishment (thereby treating the person as guilty) or because he regarded as guilty.  Naturally bail should only be refused because the person charged might be guilty.  Indeed, he was charged because the prosecution believes him to be guilty.

67.In other words, the judge proceeded on the basis that only statement or conduct which states or implies that the person is guilty would infringe Article 11.  Statements or conduct which merely states or implies that the person may be guilty would not infringe Article 11.

68.It is clear from section 17(2)(a) that the power to withhold pay is narrow.  It is only permitted if section 17(1)(a) applies.  Section 17(1)(a) includes disciplinary proceedings.  I would leave that to one side.  We have not heard submissions on it.  Quite rightly so, because it is irrelevant to the appeal.  However, it is important to note that subject to Article 11(1), it is not said that section 17(2)(a) has no legal effect, at least for disciplinary proceedings which are not based on any criminal allegation.

69.The judge was of the view that:

“	… the measure of curtailing pay in advance of a finding of guilt is solely punitive in effect.”  para. 29

70.And in para. 33:

“	… Pay is only being held back in the first instance, just because an officer is assumed to be guilty before his trial.”

71.If that is the only basis upon which a suspension of pay could be explained, I agree that that must be contrary to the presumption of innocence.

72.But I do not regard that as the true basis for the suspension of pay.  I agree with the judge that the applicant was taken off active duty against his wishes.  But the interdiction was not arbitrary.  If section 17 had provided for total suspension of pay upon interdiction, I do not believe that would violate the presumption of innocence.  Wallwork was a case of total suspension of pay during the relevant period.  Both Wallwork and Lam Yuk-ming explained why suspension of pay when no work is done is not necessarily unreasonable.

73.Here, we are only concerned with suspension of up to a maximum of 50%.  Also, it is relevant to note that under the Ordinance, any payment made is not recoverable.

74.Mr McCoy submitted that if section 17 had provided that the officer should be paid in full during the interdiction but which he would be required to repay if he should be convicted of an offence which would have justified his summary dismissal at common law, that would also violate the presumption of innocence.  He submitted the presumption of innocence leaves no room for any action based on the possibility of guilt.  So any provision for repayment would also violate the presumption of innocence.  As I have said the authorities do not support Mr McCoy.

75.I go on to consider section 17 together with section 37.

76.It will be remembered that under section 17(3), if the criminal proceedings did not result “in a dismissal or other punishment … (the officer) shall be entitled to the full amount of pay …”.

77.Under section 17(4), if the criminal proceedings resulted in:

“	… punishment other than the dismissal of such officer, he may be paid such proportion of the pay withheld as a result of his interdiction as the Commissioner may direct.”

78.Section 37(4) has already been noted.  This provides that no pay or allowance shall be payable to any police officer following conviction except with the approval of the Commissioner.  Thus, following conviction, the Commissioner might still permit payments to be made, for example, pending appeal.

79.Under section 37(5), the officer “may be dismissed, compulsorily retired, reduced or reverted in rank or subjected to a lesser punishment-” following conviction.

80.Section 37(7) provides that:

“

(7)

Where a police officer is dismissed under subsection (5) any arrears of pay due to him may be forfeited by order of-”

depending on his rank, the Chief Executive or the Commissioner.  Thus, even in the case of a dismissal following conviction, forfeiture is not automatic.  In any event it is not conviction but dismissal which might result in the forfeiture of any pay withheld.

81.It has been noted that the officer is not required to repay in the event of conviction and dismissal.

82.In the case of an employment contract, not involving the government, section 9 of the Employment Ordinance preserves the common law power of summary dismissal.  Thus, for example, an employer who believes his domestic employee has stolen from him might summarily dismiss the domestic employee.  Of course, the dismissal could be contested, and if the employer turned out to be wrong, he would be liable to pay damages to the employee.  Depending on whether the theft was indeed established, the dismissal may or may not be justified.  But if justified, the domestic employee would not be entitled to be paid following the dismissal.  Nor, if instead of dismissal, the contract was suspended under section 11 of the Employment Ordinance.  I note that section 11(1)(c) is confined to “any criminal proceedings against the employee arising out of or connected with his employment”, however, section 17(2)(a) is not so restricted.  But I do not believe that makes any difference.  The position of a police officer is such that a high standard of probity is required.  Moreover, it is not any criminal charge which would lead to interdiction, nor any conviction which would lead to forfeiture of pay.

83.Is suspension of pay under section 17(2)(a) explicable only on the basis that the officer is presumed to be guilty?

84.The judge said in para. 27:

“	… Curtailing pay in advance of a finding of guilt seems to me equivalent to presuming Mr. Yeung to be guilty before trial.  That would be contrary to art.11.”

Because:

“

… if an interdicted officer is found innocent, he is entitled to be reimbursed all salary withheld.  This demonstrates that entitlement to the curtailed proportion of salary hinges on a finding of guilt or innocence.  Pay is only being held back in the first instance, just because an officer is assumed to be guilty before his trial.”  Para. 33.

85.I believe the judge was influenced by his view of the public sentiment behind the docking of pay.

86.In para. 34, the judge said:

“

34.

It is sometimes suggested in favour of the power to hold back pay that it is consistent with public sentiment.  The public (it is thought) would be horrified if a public servant, charged with a serious offence and suspended from office pending trial, continued to be paid his entire wages.”

87.He concluded in para. 36:

“

36.

To the contrary, the argument of public sentiment betrays underlying prejudice.  The public is deemed to be shocked by any failure to curtail salary, because the public assumes that the servant involved was rightly charged and suspended.  To justify an exercise of the power under s.17(2)(a) on a public reaction of the nature described, would indeed be treating a person as guilty before trial.”

88.I believe the public sentiment has been misunderstood.  The sentiment was not that the officers were assumed to be guilty.  Rather that officers who were eventually found guilty and dismissed, should not be paid in the meantime, without any liability to repay.  Criminal proceedings take time, sometimes, a very long time.  It is fair that officers should not suffer any financial hardship by section 17(2)(a).  In any event he would be paid at least 50% of his wages.  That may be because of the limitation placed on the officer during interdiction.  As the evidence shows, the critical consideration for the amount to be withheld is the financial need of the officer.  The public is entitled to object to automatic full payment.  As both English and Hong Kong authorities show, it is a reasonable sentiment that:

“	Assuming that his suspension has been for proper cause, why should he be paid, when he has done no work?”  per Roberts CJ, Lam Yuk-ming at 823.

89.Particularly, since he is not obliged to repay in any event.

90.A police officer is not treated less favourably than other working persons in Hong Kong.  Indeed, some might say he is treated more favourably.

91.The fact that by virtue of section 17(3) the officer would be paid his full salary if he is not dismissed or otherwise punished, says nothing about the reason for the initial docking of pay.  This is not unfavourable treatment compared to the provisions of the Employment Ordinance.  No doubt there is good reason for this treatment, but section 17(3) cannot be relied on to condemn the initial docking of pay.

92.I turn to consider the applicant’s other arguments.

Guidelines on withholding of pay (the guidelines)

93.The attack is that some of the factors stated in the guidelines are contrary to the presumption of innocence.  The guidelines were produced by the Commissioner and were published for the information of police officers.  The guidelines stated the factors which may be taken into consideration, which included the following:

“	(a)	the potential adverse reaction of the general public to the Police Force continuing to give officers full pay whilst interdicted;
	(b)	the risk to the public purse;
	(c)	basic living expenses, e.g. food, rent, electricity, etc.;
	(d)	financial commitments incurred before interdiction, e.g. mortgage, insurance;
	(e)	income tax;
	(f)	children support;
	(g)	alimony;
	(h)	children education;
	(i)	medical expenses;
	(j)	staff morale; and
	(k)	characteristics of the individuals, such as length of service, and disciplinary records etc.”

94.Factors (c) to (i) are accepted to be proper consideration.  They pertain to the consideration of possible financial hardship.

95.I would regard (a) and (b) as complementary.  As I have explained (a) and (b) are not based on any sentiment that the officer is guilty.  I have no doubt that the Commissioner must have regard to the public purse.  And that public sentiment required the Commissioner to consider that the police officer is not required to work, that even if the officer were found guilty of the most serious offence he would not be required to make any repayment, and that the police officer might be entitled to full reimbursement under section 17(3).  More importantly, under factors (c) and (i), the police officer would not suffer any financial hardship in the meantime.

96.(j) and (k) are probably matters which might persuade the Commissioner to “err” in favor of the police officer.  I would not go so far as to say (j) and (k) should not be considered.  They can properly be taken into account so that the Commissioner might act in a way which is more favorable to the officer than a strict consideration of his financial needs would require.  There is no evidence that (j) and (k) were meant to enable the Commissioner to withhold more pay than he otherwise would.  As the evidence has amply demonstrated the financial considerations are of overriding importance.

97.I agree with the judge the guidelines are not flawed as a policy document.  Para. 54.

98.Mr McCoy submitted if pay was docked in order to affect the officer’s ability to obtain legal representation, that would violate the presumption of innocence.  That may also affect other rights.  But that is not the case I have to deal with.

Discretion fettered

99.I see nothing in this point.  It was the Commissioner’s duty to apply section 17(2)(a).  He was entitled to have regard to the practice of the civil service.

100.I entirely agree with the judge that there is no evidence that the Commissioner was “pressured” into the new policy by the Director of Audit.

Discretion against relief

101.Mr Yuen submitted that having regard to the small sum involved, the judge should have refused relief.  That is a matter for the discretion of the judge.  I see no reason to interfere.

Conclusion

102.I would allow the appeal.

103.I would also make an order nisi that the respondent is to have the costs of this appeal and below, such costs to be taxed if not agreed.  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Hon Hartmann J:

104.I agree.

Hon Lam J:

105.I also agree.

Mr. Gerard McCoy, SC and Ms. Margaret Ng, instructed by Messrs Hastings & Co., assigned by Director of Legal Aid, for the Applicant.

Mr. Rimsky Yuen, SC and Mr. Nicholas Cooney, instructed by the Department of Justice, for the Respondent.