Lai Sam Hing Sam v. Commissioner of Police

HCAL 56/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 56 OF 2008

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BETWEEN

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Before:  Hon Saunders J in Court

Date of Hearing:  5 January 2009

Date of Judgment:  20 January 2009

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J U D G M E N T

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1.In this application for judicial review, the Applicant, a Police Constable, challenges two disciplinary decisions made in relation to him. 

2.The first is a decision of the Force Discipline Officer (FDO), made on 16 May 2007, and contained in an internal police memorandum dated 29 May 2007, imposing upon the Applicant an additional punishment of compulsory retirement with deferred benefits consequent upon the conviction of the Applicant of an offence of making a statement, false in a material particular, contrary to Reg 3(2)(j) Police (Discipline) Regulations, Sub Leg, Cap 232A, (P(D)R).

3.The second is a decision of the Commissioner of Police made on 11 July 2007, contained in an internal police memorandum dated 16 July 2007, ordering that the award of the punishment imposed on 16 May 2007, should stand.

The time issue:

4.The application for judicial review was not made until 24 May 2008.  By O 53 r 4 RHC, an application for leave must be made promptly, and in any event within three months from the date when the grounds for the application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be made.  Mr Mak for the Commissioner took the time point.

5.The application ought to have been brought, at least, by mid-October 2007.  The Applicant explained that after being ordered compulsory retirement in July 2007, he was very upset and did not know what to do.  He said that after receiving advice from friends in late 2007, he made an application for legal aid on 23 January 2008.  It took the Legal Aid Department until 30 April 2008, to grant the Applicant legal aid, and the application was promptly filed thereafter, on 28 May 2008.

6.In my view, the reality of the situation is that the delay on the part of the Applicant was three months from time when the application ought to have been brought, until he applied for legal aid.  He cannot be criticised for the unfortunate four month delay on the part of the Legal Aid Department to process his application.  Mr Mak did not suggest that there is any prejudice on the part of the Commissioner.  I can well understand that a man would be very upset at being dismissed from the force and may take some time to come to terms with his position.

7.In the absence of any argument as to prejudice, and having regard to the explanation for the delay, I am satisfied that the proceedings should be allowed to continue, albeit that they were commenced late.

Background:

8.On 8 March 2004, the Applicant was convicted of 11 disciplinary charges relating to 11 occasions on which he had travelled to Macau in a private capacity without first submitting a written notification on each occasion to his Formation Commander in contravention of Headquarters Order 105/2000 Part One.  The penalty awarded by the Adjudicating Officer was a “Caution” on the first of the 11 charges, and “Reprimand” on each of the remaining 10 charges.  The penalty was confirmed by a Senior Police Officer.

9.On 17 April 2004, the FDO confirmed the awards, and gave an additional award of a “Warning for Dismissal (General)”, valid for two years, with effect from 13 May 2004.  This Warning was not due to expire until 14 May 2006.

10.The requirement of a police officer to notify his Formation Commander of his intention to make a private visit to Macau was suspended with effect from 1 April 2006.

11.In December 2005, the Applicant faced two new disciplinary charges.  The first was that since January 2005, he had failed to be prudent in his financial affairs by amassing unmanageable outstanding debts of about HK$340,159, causing him serious pecuniary embarrassment stemming from financial imprudence which had impaired his operational efficiency.  The second was that on 10 June 2005, he made a false statement in the course of his duty, namely that he did not have any loans other than the two loans mentioned in a statement made on that day.

12.The Applicant pleaded not guilty to both charges.  It appears that the hearing of two charges against the Applicant did not take place until 29 December 2006.  It was not until 23 March 2007, that the Adjudicating Officer delivered his decision.

13.The Applicant was acquitted of the first charge.  In relation to the second charge the Applicant, having first asserted to two loans and subsequently admitted five other loans, was correctly found guilty.  The Adjudicating Officer awarded a penalty of a “Severe Reprimand” in relation to the charge upon which the Applicant had been found guilty.

14.In accordance with the normal procedure, the decision of the Adjudicating Officer went to a Senior Police Officer who confirmed the guilty finding and, after considering the factors taken into account by the Adjudicating Officer in awarding the penalty, found that the level of award was appropriate.  He accordingly confirmed the Severe Reprimand.

15.On 2 May 2007, the FDO, having considered all the circumstances, expressed the view that, as the second charge had been committed when the Applicant was still subject to a disciplinary punishment of “Warning for Dispersal (General)”, he was minded to increase the award of “Severe Reprimand” to “Severe Reprimand” with an additional punishment of “Compulsory Retirement with Deferred Benefits”.  The Applicant was invited to make submissions to the FDO on this proposal, which he did.

16.On 16 May 2007, the FDO, after considering the submissions made by the Applicant, decided to increase the punishment as he had previously indicated.

17.In his submissions the Applicant had set out his family circumstances and made the following statement:

“I must tell you that I incurred the loan not for gambling or for overspending in extravagant things.  The money was needed for the burial of my close relative and also for my brother’s livelihood at the time when he was out of his job.  I have cleared my debts already.” (sic)

There was no evidence which in any way challenged this assertion.

18.The FDO, in rejecting the Applicant’s submissions, and not only confirming, but increasing the punishment had this to say:

“3.     The issues raised by the defaulter in his representations have previously been considered.  The defaulter lied to direct question put to him by his senior officer during the disciplinary review with a view to conceal from Force Management the seriousness of his indebtedness.

4.      While I have much sympathy for the family and the mother of the defaulter, the interests of the Force and the public must also be considered.  Integrity is the first and most basic quality required of a police officer.  In this instant case, the defaulter’s misconduct is a blatant disregard of good conduct and discipline.  Of particular serious nature is the fact that when Charge (B) was committed, the defaulter was still under a ‘Warning for Dismissal (General)’.  He has not learned from his mistake and abused the leniency given by the Force.  The standard of discipline of the Force must be maintained and I have totally lost confidence in the defaulter to continue to discharge his constabulary duties.  A terminatory award is necessary but in consideration of the defaulter’s length of service, he should be allowed to retain his pension benefits.  In arriving at this decision, I have excluded evidence in relation to Charge (A), which are irrelevant.” (sic)

19.On 11 July 2007, the Commissioner of Police ordered that the decision of the FDO should stand.  The Applicant was ordered to be compulsorily retired from the Police Force with effect from the 17 July 2007, with deferred benefits.

20.The Applicant now challenges the decisions of the FDO, made on 16 May 2007, increasing the award, and the Commission of Police, made on 11 July 2007, that the decision of the FDO should stand.

The grounds:

21.The application was based principally upon the ground that the decisions made were irrational, in that when the decisions were made, the decision-makers had failed to take into account the fact that the notification requirement for travel to Macau by police officers had been suspended since 1 April 2006, and that consequently the offences for which the Applicant was under a general warning for dismissal, no longer constituted offences against police discipline.

Discussion:

22.There are two kinds of warnings for dismissal which may be given consequent upon a disciplinary offence by a police officer.  They are “Specific” or “General”.  A specific warning might only be activated upon the repetition of the same offence.  A general warning may be activated upon the commission of any disciplinary offence.

23.The circumstances in which a warning may be activated were considered in Tong Ping Chuen v AG (unreported, 7 March 1990, CACV 6/1990).  There the court said:

“The officer charged with making the decision (whether to activate the award) will be bound to take all relevant matters into account, and the circumstances which gave rise to the earlier Warning will remain at large for his consideration.  We take the Warning to be no more than a marker to draw those circumstances to his attention.”

24.The circumstances which gave rise to the earlier warning were the Applicant’s failure to notify his Formation Commander of his intention to make a private visit to Macau.  The lack of seriousness of that offence is reflected in the fact that, by the time the FDO came to consider the Applicant’s position, such a failure no longer constituted an offence.

25.It is plain from the reasons given by the FDO that he has not considered the circumstances giving rise to the earlier warning.  That is made clear by the affirmation of the FDO in which he makes the following assertion:

“An officer under a Warning for Dismissal (General) who was convicted of any disciplinary offence committed during the validity period, will normally be dismissed.”

And:

“It should be irrelevant that the notification requirement has subsequently been suspended.  Notwithstanding the Warning was still in force, the Applicant had chosen to lie to a police sergeant interviewing him.”

26.These two statements demonstrate a failure on the part of the FDO to properly understand the circumstances in which a warning should be activated. 

27.In the first place he has proceeded upon an assumption that where there is a warning there will normally be dismissal.  That is not so, as may be seen from the decision in Tong Ping Chuen.  The warning is no more than a marker requiring the decision maker in subsequent disciplinary proceedings to have regard to the circumstances of the previous offence.  To proceed upon the basis that the existence of warning will normally result in dismissal is wrong in law.  The decision maker must consider the circumstances of the previous offence in relation to any subsequent offence.  He must keep his mind open as to whether or not, in the light of the circumstances of the new offence, and the circumstances of the preceding offence, dismissal is warranted.

28.By proceeding upon the assumption that dismissal will normally follow where there is a warning, the FDO has not kept his mind appropriately open.

29.Second, the fact that the notification requirement has subsequently been suspended is not irrelevant.  It is part of the circumstances of the previous offence.  It must be a relevant factor because the fact of suspension of the requirement puts the seriousness of the earlier offence into a proper context.

30.The requirement was plainly one directed at the problem of police officers incurring excessive debts from gambling in Macau.  The evidence from the Respondent establishes that that problem has greatly reduced.  Further, there is no suggestion that the Applicant’s debts were incurred for that reason.  To suggest that the fact that the notification requirement has been suspended is irrelevant, is to disregard the circumstances of the earlier warning.  The FDO was wrong in law in considering the fact of suspension of the notification requirement to be irrelevant.

31.On those grounds alone I am satisfied that the application for judicial review should succeed.  But in the course of argument a second ground became apparent.

32.The evidence establishes that upon re-interview, after having first admitted to only two loans, the Applicant subsequently admitted five further loans.  His explanation for not earlier disclosing those loans was that those loans had been borrowed, apparently not for his own purposes, but for his brother who, at the relevant time was out of work.  The Applicant explained that the brother, being out of work and unable to borrow, sought the assistance of the Applicant to borrow money, on the basis that he, the brother, would be responsible for the repayment of those loans.  In simple terms, he viewed the loans as his brother’s loans not his own.  These circumstances were before the FDO by way of a memorandum dated 11 July 2007, made by a police officer designated DCP MAN.  The acronym has not been explained to me.

33.The fact that the loans were made in the Applicant’s name is sufficient to justify the finding of guilty on the charge of making a false statement.  It is correct that as the loans were in the name he was liable for their repayment and was exposed to a finding that he had unmanageable outstanding debts.  Equally, it was a false statement to assert that he had only two loans.

34.But the circumstances in which the loans were incurred carry strong mitigating weight and greatly lessen the seriousness of what is otherwise plainly a serious offence.  That is particularly so when, at the time the FDO considered the matter and increased the penalty, all of the loans had been repaid.  There is nothing in the decision of the FDO to indicate that he has given any consideration whatsoever to these additional facts.

35.The failure of the FDO to consider these additional facts is a further basis which justifies the application for judicial review succeeding.

Orders:

36.There will accordingly be an order of certiorari to bring up and quash the decision of the FDO made on 16 May 2007, giving the Applicant an award by increasing from “severe reprimand” to “severe reprimand and an additional punishment of compulsory retirement with deferred benefits”.  There will be an order of certiorari to bring up and quash the decision of the Commissioner of Police made on 11 July 2007, that the award of “severe reprimand” and an additional award of “compulsory retirement with deferred benefits” are to stand.

37.The decisions having been quashed, it will now be for the FDO to reconsider the decision and to weigh into the balance, first the circumstances of the warning and the fact that the offence for which it was given no longer constitutes an offence, and second the fact that although the additional loans were incurred by the Applicant and his statement was false, some responsibility for the repayment of the loans lay with the Applicant’s brother, and the fact that the loans had been repaid. 

38.A proper consideration of the appropriate penalty, bringing these additional factors into account, would seem to me to indicate that the penalty initially imposed by the Adjudicating Officer could well be found to be appropriate.

Costs:

39.The Applicant, having succeeded on the application is entitled to an order nisi for his costs which are to be taxed on a party and party basis, and in accordance with Legal Aid Regulations.

Mr Kwok Sui Hay, instructed by Messrs Joseph C T Lee & Co, for the Applicant

Mr Andrew Mak, instructed by the Department of Justice, for the Respondent