Leung Tat Sun v. The Chief Executive of the HKSAR and Another

HCAL 47/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 47 OF 2006

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BETWEEN

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Before: Hon Reyes J in Court

Date of Hearing: 12 March 2007

Date of Judgment: 12 March 2007

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J U D G M E N T

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I.  Introduction

1.Leung is a Senior Immigration Assistant (SIA) in the Immigration Service.

2.On 15 April 2005 he was convicted for behaving in a disorderly manner in a public place contrary to Public Order Ordinance (Cap.245) s.17B(2).  The magistrate found him guilty of having surreptitiously positioned a mobile phone underneath a woman’s skirt to take a video.

3.Leung pleaded not guilty. 

4.The offence took place at a hospital.  Leung said that he had been playing games on his mobile phone while waiting for his mother to be treated.  He claimed to have a seen a woman at the time with a beautiful mobile phone.  Being short-sighted, he said that he had to move close to the woman to see her phone’s brand name.  He denied that he took the offending video. 

5.Leung alleged that the video found on his phone must have been the result of malfunction.  He suggested that his phone was out of order, such that unnoticed it could automatically switch to film-recording mode from time to time.  He further suggested that the video might have been downloaded by a friend to whom he claimed to have lent the phone.

6.Leung’s act had been noticed and reported by an assistant at the hospital.  She reported the matter to her superior who called the police.

7.The magistrate disbelieved Leung.  Initially, Leung was fined $1,000 for his offence.  Upon review on 11 July 2005, the magistrate increased the fine to $3,000. 

8.Leung’s appeal against conviction was dismissed by Pang J on 12 July 2005.  On appeal, Leung submitted (among other grounds) that the magistrate had failed adequately to consider whether his conduct was likely to cause a breach of the peace.

9.Following Leung’s conviction, the Immigration Service considered whether to discipline Leung. 

10.By letter dated 11 January 2006, the Director of Immigration informed Leung of his decision to punish Leung by compulsory retirement pursuant to Public Service (Administration) Order s.11 (PS(A)O).  In coming to his decision, the Director was exercising authority delegated to him by the Chief Executive.

11.Leung now seeks judicial review of the Director’s decision.  Leung complains that the decision is irrational and the punishment disproportionate. 

II.  Discussion

A.  Whether decision irrational

12.The factors which the Director took into account in coming to his decision are set out in an Annex A prepared by the Immigration Department for the Director’s consideration.

13.Annex A reads (in part) as follows:

“1.     In considering the punishment on Mr. LEUNG Tat-sun (LEUNG), the Department has taken into account the following factors:

(a)     Gravity and Circumstances of the Offence

The nature of LEUNG’s criminal offence of ‘disorderly conduct’ in  capturing images underneath a female’s skirt is scandalous and seriously grave.  His act could cause a breach of the peace and is totally unacceptable to members of the public.  The Court commented that it was a sickening immoral act.  Upon a review of the sentence of his offence, the Court had raised the fine from $1,000 to $3,000.

Although the victim was not aware of LEUNG’s act at the material time, she stated definitely that she was terrified when it came to her notice. His act may cause much distress and unfathomable harm to the victim.  The response of the Health Services Assistant to his misdeed in reporting immediately the incident to her supervisor, and the supervisor’s response by calling the Police at once, have reflected that the offensiveness of his wrongful act had disturbed their peace of mind and is totally unacceptable by members of the public.

LEUNG’s offence has tarnished the image of the Department and his conduct has definitely brought the public service into disrepute as his case had been widely reported by the press.  His act has impaired the image of the Department as a disciplined force of which a high standard of probity and conduct is expected from the general pubic.

The Magistrate considered that LEUNG’s explanation for having approached the victim closely with a view to checking the model number of her mobile phone was totally incredible.  The Magistrate also did not believe his explanation of having lent his mobile phone to a friend ... and considered it as ‘fanciful possibility’.  His credibility and integrity are gravely in doubt.  His dishonesty and untrustworthiness render him unsuitable to discharge the law enforcement duties as a public officer.

LEUNG pleaded not guilty to the offence and his total denial of the act as well as his making up fabricated statements and misleading explanation in the Court reflected that he was actually not remorseful for his act.  Judging from his attitude towards his convicted offence, in that he subsequently lodged an appeal against the conviction, he was unremorseful throughout the whole process of the criminal proceedings.  We have no confidence at all that he will not commit similar act in future and hence cannot entrust him to continue his duties.  The great majority of an SIA’s duties are front-line operations in the various immigration control points performing passenger clearance work.  This nature of work affords him numerous chances of contacts with female clients of the Department in his daily discharge of duties.  We will be taking a very high degree of risk in retaining him in the service as should there be any similar disorderly conduct related to members of the public, say, female passengers pending or under examination, the consequences affecting the public service would be extremely harmful.  It is therefore totally undesirable to retain him in the service to execute his power for the sake of public interest.

Being a member of the Immigration Service, he is entrusted to enforce law and order and is expected to display a high standard of probity and conduct.  His criminal offence, which is totally unacceptable to members of the public, and his attitude towards his offence during the criminal proceedings have reflected adversely his integrity and honesty.  Grave doubts are cast on his suitability to discharge his public duties as a disciplined service member.  Although the offence is not duty related and no abuse of his official position is involved, we have lost confidence in his remaining as a law enforcement officer in the Immigration Service.”

14.Mr. James Collins (appearing for Leung) submits that no reasonable Director, properly advised, could have arrived at the decision here.

15.Mr. Collins argues that, from the Annex A passage quoted, the possibility of re-offending must have received significant weight in the Director’s assessment of the gravity of Leung’s offence. 

16.But (Mr. Collins says) there was no evidence before the Director of any propensity on Leung’s part to offend again.

17.Thus, the Annex A passage quoted (Mr. Collins submits) betrays “a deep-seated prejudice”.  As Mr. Collins puts it, the passage assumes that Leung “suffers from sort of ‘kink’ which makes him a permanent danger to women”.  However, in the absence of objective evidence (such as psychological reports), Mr. Collins says that any conclusion of a propensity to offend again must be unwarranted and irrational.

18.I am not persuaded by Mr. Collins’ submission.

19.As Mr. Rimsky Yuen SC (appearing for the Director) notes, the quoted passage from Annex A suggests that the Director took into account 4 key factors in coming to his decision.  Those factors were:

(1)     Leung’s conduct had tarnished the image of the Immigration Department;

(2)     Leung’s denial of guilt cast serious doubt on his integrity, rendering him unsuitable to continue in duty as a law enforcement officer who is expected to display a high standard of probity in dealings with the public;

(3)     there was a possibility of repetition, especially since Leung’s work involved frequent contact with female clients of the Department; and,

(4)     the Department had lost confidence in Leung.

20.Although the possibility of repetition was a factor which the Director took into account, I am unable to deduce (as Mr. Collins invites me to do) that it was the most significant factor in the Director’s decision.

21.In any case, even if the possibility of repetition played some significant part in his deliberations, I think that the Director could reasonably come to his decision on the material before him.

22.Annex A stresses a lack of remorse for his offence on Leung’s part.  That lack of remorse (according to Annex A) is evidenced by Leung having told untruths when giving evidence before the magistrate and by Leung not accepting on appeal that his conduct would have caused a breach of the public peace. 

23.Given such evidence of Leung’s lack of regret for what he had done, the Director would understandably lack confidence that Leung would refrain from similar acts in the future, especially in the course of carrying out his public duties.

24.I cannot therefore fault such thinking by the Director.  Contrary to Mr. Collins’ suggestion, I do not think that the Director in so thinking engaged in amateur or speculative psychology.  In light of the lack of remorse evidenced by Leung’s conduct, I think that the Director was entitled to conclude that a possibility of re-offending in the future could not be ruled out.

25.In the circumstances, I do not believe that the Director’s decision was Wednesbury unreasonable.

B.  Whether punishment disproportionate

26.The Director punished Leung having considered what had been done in 3 precedent cases.

27.The punishments meted out in those cases consisted of a reprimand and caution of removal from service in one, compulsory retirement in another, and dismissal in the third.   In the case where compulsory retirement was imposed, an SIA had similarly attempted to take photographs under a girl’s skirt with a digital camera.

28.Mr. Collins submits that the punishment of compulsory retirement here is far too severe.  In particular, Mr. Collins stresses Mr. Leung’s prior unblemished record, especially as a civil servant. 

29.Mr. Collins (echoing his argument on irrationality) says that the Director has taken “an isolated deviation from socially acceptable behaviour” and “so magnified ... its perceived implications as to transform an otherwise benign ‘Dr. Jekyll’ into a potentially monstrous ‘Mr. Hyde’ ”.  The Director (Mr. Collins says) wrongly punished Leung too severely on an unsubstantiated assumption that Leung might re-offend.

30.For reasons similar to those discussed in relation to irrationality, I am not persuaded by Mr. Collins.

31.Given in particular the 3 case precedents identified by the Director and given that I have not found his decision to be irrational, I am unable to say that the punishment here is disproportionate.

32.In my view, the Director was entitled, despite Leung’s previous good record, to conclude from all the circumstances that a sentence of compulsory retirement was warranted.

III.  conclusion

33.The grounds of review having failed, Leung’s application is dismissed.  I shall now hear the parties on costs and consequential orders.

Mr. James Collins and Mr. Matthew Tse, instructed by Messrs Henry Wan & Yeung, for the Applicant

Mr. Rimsky Yuen, SC and Mr. Victor Dawes, instructed by Department of Justice, for the Respondents