Wong Chi Hung v. Commissioner of Police

HCAL 27/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 27 OF 2006

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BETWEEN

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Before : Hon Lam J in Court

Date of Hearing : 12 February 2008

Date of Judgment : 18 February 2008

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J U D G M E N T

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1.The Applicant was a senior police constable. He joined the Force in 1979. Over the years he had been awarded with quite a number of commendations, including a Queen’s Commendation for Brave Conduct in 1990 for his bravery in an attempt to apprehend armed robbers in 1988.

2.It is not necessary to go into details of his personnel records. It suffices to note that his career was not without blemish.

3.On 6 July 2004, he was convicted of making persistent telephone calls and making offensive (obscene) telephone calls after trial at the Eastern Magistracy. He was fined $500 for each charge.

4.On 22 November 2005, the Commissioner of Police awarded him a compulsory retirement with deferred benefits pursuant to Section 37(5) of the Police Force Ordinance.

5.The Applicant now seeks to challenge that decision by way of judicial review. The grounds of challenge can be summarized as follows,

(a)	The sentence is so totally out of proportion with the wrong that it is Wednesbury unreasonable;
(b)	The decision maker wrongly took into account of the comments in the report of the Formation Commander and the Staffing Note of the Discipline Division;
(c)	The Commissioner wrongly delegated the power to make the decision to an Assistant Commissioner;
(d)	The decision maker failed to give adequate reasons for the decision.

The role of the court in judicial review regarding disciplinary decisions of the Commissioner 

6.At the outset, it has to be stressed that unlike the cases for some other professionals, the law does not provide for any appeal to the court regarding disciplinary decisions of the Commissioner. Though the court retains a supervisory role over such decisions by way of judicial review, the scope for intervention is limited. The mere fact that the court considers a sentence severe is not a ground for intervention.  

7.Thus, Bokhary JA (as he then was) said in Au Yeung Kwok Hing v Attorney General CACV 205 of 1994, 7 Feb 1995, in a similar context,

“	…the courts are not exercising appellate jurisdiction. They are exercising jurisdiction by way of judicial review. All of the being so, the courts will only intervene if the punishment is severe beyond any rational relationship to the seriousness of the offence and the situation of the offender.”

8.In the same case, Nazareth VP said,

“

It is to the Commissioner and his officers that the determination and punishment of disciplinary charges have been entrusted by the legislation, and not the courts. And in discharging that function, the former are entitled, and must be presumed to have been expected, if not required, to bring to bear their knowledge and experience of the requirements and operations of the Police Force; and likewise to assess awards in the light shed by the nature and circumstances of the misconduct upon the desirability and appropriateness of the offending officer remaining in the Force.”

9.That dicta highlighted a very important purpose of disciplinary proceedings against police officers, viz. the consideration by the Commissioner whether a police officer is suitable to remain in the Force. This is essential for the maintenance of the integrity and efficiency and public confidence in the Police Force. Thus, the Chief Justice said in Fu Kin Chi v Secretary for Justice (1997-98) 1 HKCFAR 85 at p.100,

“	The Police Force has the statutory duty of maintaining law and order. Its integrity and efficiency and public confidence in its integrity and efficiency are of fundamental importance if it is to be discharge its duty effectively.
	Its integrity and efficiency can only be maintained if the force can ensure that its members are subjected to disciplinary authority. This could only be done effectively if the force has the fullest powers to investigate cases of possible offences against discipline and, where justified after investigation, to take disciplinary proceedings.”

10.And I would respectfully add that to achieve such objective, the Commissioner must have the fullest authority to remove an unsuitable member from the Police Force. Even though in some cases it might appear to be harsh on the individual concerned, the court should not interfere unless there are good reasons to do so.

11.In other words, in the exercise of his disciplinary power, the Commissioner must always bear the public interest in maintaining the integrity of the Police Force in mind. And the court must also consider any challenge by way of judicial review with this perspective in sight.

12.Hence, a disciplinary decision of the Commissioner should not be considered only as a punishment for a wrong committed, it should also be regarded as a management decision by the Commissioner in maintaining the integrity of the Police Force as a whole.  As Bokhary JA said in Au Yeung Kwok Hing, supra.

“	How this appeal might be determined if one were to proceed on the basis of sympathy for the appellant is irrelevant. Sympathy is not the test. Responsibility for discipline in the police rests with the Commissioner of Police. His duty is to the public. And so is the duty of the courts.”

Reasons for the decision

13.I now turn to the specific challenges raised by the Applicant. I shall first deal with the adequacy of reasons and the taking into account of the Staffing Note and the report of the Formation Commander. The two can conveniently be considered together.

14.Apart from the representations by the Applicant, the decision maker also had a report of the Formation Commander and a Staffing Note from the Discipline Division before him. These documents were also supplied to the Applicant for his response before the decision was made.

15.In the Formation Commander’s report, apart from setting out the service profile of the Applicant and his conduct and performance over the years, the report also contained the following assessment,

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Police profession requires the highest standards of personal conduct and integrity at all times. [The Applicant’s] overall conduct leaves lingering doubts in the minds of the District Management as to his sense of judgment and integrity. His convictions demonstrated his total disregard of Force values. The District Commander has lost confidence in [the Applicant’s] integrity to serve as a police officer. It is recommended that [the Applicant] be given an award of ‘Compulsory Retirement with Deferred Benefits’.”

16.In the Staffing Note, one of the concluding paragraphs said,

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The offences committed by the officer were of a serious nature, which included making obscene and offensive phone calls persistently. Though the offences were not the heinous crimes, his breach of the offences was a challenge to flout the law. He fell short of the good standard in his conduct as a professional police officer. It is considered that his misconduct has tarnished the positive image of the Force and cast grave doubts on his integrity to continue discharging his constabulary duties.”

17.Mr Lau, counsel for the Applicant, submitted that the decision maker acted wrongly in taking these into account. Counsel said the offences for which the Applicant was convicted do not involve any dishonesty nor any violence. The offences were unrelated to the execution of police duties and they were committed in 4 days and they emanated from a domestic dispute. Counsel urged that there was no basis for characterizing the offences as serious nor for doubting the integrity of the Applicant in the discharge of his police duties. Counsel also said the Applicant’s conviction should not tarnish the image of the Force. In a nutshell, counsel contended that these conclusions were Wednesbury unreasonable.

18.I am unable to accept these submissions. Whilst one can readily see from a criminality point of view that the offences were summary in nature, it does not follow from a police disciplinary point of view that they are not serious. As Cheung J observed in Chu Ping Tak v Commissioner of Police [2002] 3 HKC 663 at para.30,

“	Besides efficiency, the public is entitled to expect police officers to possess the right qualities in terms of judgment, common sense, intelligence, self discipline, self restraint, sense of responsibility, sense of reasonableness and proportion …”

19.In my view, the integrity of a police officer must depend on his ability to exercise self discipline and self restraint. Moreover, as pointed out in the report and the note, respect for the law and Force value is also important. The commission of the offences in question reflected badly on the Applicant’s ability in these regards. This is particularly so when the Applicant’s record included a written warning for a substantiated complaint of assault in the execution of his duties.

20.Further, it is plain that the Formation Commander and the Discipline Division took the overall conduct and performance of the Applicant into account instead of just relying on the commission of these offences as the ground for coming to their respective conclusions.

21.Whether I would reach the same conclusions if I have the same information and knowledge as the Formation Commander and the Discipline Division is beside the point. In a judicial review, the court does not usurp the role of the primary decision maker. Suffice to say I do not regard their conclusions to be irrational. The decision maker rightly took those into account. Even though he did not spell out explicitly the reasons for his decision, one can readily infer that he was adopting the recommendations of the Formation Commander and the Discipline Division together with their conclusions.

22.Mr Lau complaint that the reasons set out in those documents did not show that the decision maker had considered other less heavy sentencing options. I do not agree that this is a valid ground for attack in the present case. First, it is quite obvious from those reasons adopted by the decision maker that he did not regard it suitable to retain the Applicant in the Force. Having reached that conclusion, the award meted out to the Applicant was in fact one which is most favourable to him as opposed to dismissal or compulsory retirement without benefit or with reduced benefit. This is the crucial distinction between the present case and Ng Wai Sang v Secretary for Justice [1998] 3 HKC 501. Second, the law does not require the decision maker to spell out why he rejects the other options in all cases, see Ng Sai Hing v Commissioner of Police HCAL 15 of 2006, 26 January 2007. Much depends on the facts of the case.

23.One must not forget that the duty to give reasons is a manifestation of fairness and as Lord Mustill pointed out in R v Secretary of State for the Home Department ex p Doody [1994] AC 531 at p.560, what fairness demands is dependent upon the context. In the present context, I do not see any unfairness towards the Applicant in terms of the adequacy of reasons given.

Proportionality

24.Given that this is a judicial review instead of an appeal, it is not enough that the court were of the view that the award was harsh or disproportionate. To justify intervention by the court, the award has to be so out of range that one can only describe it as perverse (in addition to the authorities discussed, see also Chu Ping Tak, supra. at Para.50).

25.I also echo Chu J’s observations in Lau Kwok Fai Bernard v Commissioner of Police HCAL 95 of 2003, 39 December 2004, at para.90,

“

… the court in judicial review proceedings only has a supervisory role and judicial review proceedings must not be used as a roundabout way to appeal against disciplinary award. The harshness or severity of an award is not a ground for judicial review. To the extent that the applicant draws assistance from other disciplinary cases involving police officers … they do not afford the applicant with a valid ground for judicial review in that disparity in treatment per se is not irrational nor unfair.”

See also paragraphs 34 to 36 of that judgment on the misuse of other cases as comparables and the reference to Pang Chak Yum v Secretary for the Civil Service HCMP 1349 of 1995.

26.Thus, I do not derive much assistance from the table complied by Mr Lau setting out the sentences imposed in other cases. In my view, it is wrong in principle to embark on a comparison exercise when there is no indication as to how representative the comparables are out of all the disciplinary cases considered by the Commissioner. Also I do not have the full facts of the comparables. In any event, given that disparity in treatment is not per se a ground for judicial review, the exercise is a futile one.

27.The basic issue is whether the sentence is perverse. In substance, Mr Lau made the same points on this ground as in his challenge to the rationality of the conclusions of the Formation Commander and the Staffing Note. As I said above, I do not regard their conclusions to be irrational. Once the Applicant failed in upsetting the conclusion that the Applicant should not be allowed to remain in the Force, it is impossible to attack the sentence as irrational since the award was the most favourable one that can be imposed in the circumstances. Any lighter sentence would keep the Applicant in the Force which in the decision maker’s assessment is inconsistent with public interest in maintaining the high standard of the Force.

28.I do not regard the award as perverse and the challenge based on disproportionality fails.

Legality of the delegation

29.Section 37(5)(b) empowers the Commissioner to consider the appropriate disciplinary sentence for a police constable who has been convicted of a criminal offence.

30.Section 7(2) of the Police Force Ordinance facilitates delegation by the Commissioner in the exercise of his powers. It reads,

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Save where contrary intention appears from the context of any enactment … the Commissioner may authorize any police officer not below the rank of a station sergeant … to exercise or discharge any of the powers or duties which the Commissioner by any enactment is entitled to exercise or required to discharge.”

31.Mr Lau submitted that the context of Section 37(5) shows a contrary intention to the general authority to delegate. Hence, the exercise of that power in the present case by an Assistant Commissioner is unlawful.

32.There is no express prohibition against delegation in Section 37(5). In fact, regarding the exercise of the power of the Chief Executive under Section 37(5)(a), it is delegated to the Secretary for the Civil Service, see Lau Kwok Fai Bernard v Commissioner of Police, supra. 

33.I do not discern anything implicit from Section 37(5) to suggest that the general authority to delegate is excluded.

34.Mr Lau argued as follows,

(a)	Section 7(2) permits delegation to a station sergeant;
(b)	Section 37(5)(b) encompasses disciplinary award against an inspector who has not been confirmed in his appointment;
(c)	It is absurd to have a station sergeant to consider a disciplinary award against an inspector;
(d)	Therefore, Section 7(2) does not apply to Section 37(5)(b).

35.I have no problem with propositions (a) to (c). However I do not think (d) follows logically from (a) to (c). In my judgment, what one can properly conclude from (a) to (c) is only that it would not be appropriate for the Commissioner to delegate his power under Section 37(5)(b) in dealing with an unconfirmed inspector to a station sergeant. I do not think it follows from those propositions that the Commissioner cannot properly delegate the power to an officer holding a rank above that of an inspector. Still less can one derive from these propositions the conclusion that the Commissioner should not have any authority to delegate.

36.The case of Barnard v National Dock Labour Board [1953] 2 QB 18 cited by Mr Lau is of no assistance since we have an express provision in Section 7(2) to authorize the delegation.

37.I therefore reject Mr Lau’s submissions on this point.

Result

38.For these reasons, the application for judicial review is dismissed. I also make a costs order nisi that the Applicant shall pay the costs of the Respondent, such costs to be taxed if not agreed.

Mr Roy Lau, instructed by Messrs Peter W K Lo & Co., for the Applicant

Miss Joyce Poon, Senior Government Counsel of  Department of Justice, for the Respondent