Wong Kei Kwong v. Principal Assistant Secretary for The Civil Service and Another

CACV 72/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 72 OF 2008

(ON APPEAL FROM HCAL NO. 49 OF 2007)

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Before: Hon Rogers VP, Le Pichon JA and Sakhrani J in Court

Date of Hearing: 9 January 2009

Date of Handing Down Judgment: 4 February 2009

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J U D G M E N T

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Hon Rogers VP:

1.This was an appeal from a judgment of Saunders J whereby he dismissed an application for judicial review.   The application for judicial review sought a declaration that section 15 of the Public Service (Administration) Order (“the Order”) was inconsistent with Article 39 of the Basic Law and Article 11 of the Hong Kong Bill of Rights.  Orders of Certiorari and Prohibition were also sought.  The former was to bring up and quash the decision of the Principal Assistant Secretary for the Civil Service that there should be a disciplinary inquiry under section 10 of the Order.  The order of prohibition was to restrain the holding of the Committee of Inquiry.

2.At the conclusion of the hearing of this appeal, judgment was reserved which we now give.

The events leading up to the application

3.The applicant was a Senior Engineer in the Highways Department   In November 2005 he was charged with two charges of conspiracy to defraud contrary to common law and three charges of acting as an agent using a document with intent to deceive his principal, contrary to sections 9(3) and 12(1) of the Prevention of Bribery Ordinance Cap. 201.  For present purposes reference may be made to the third charge.  The first 2 charges are not relevant for these purposes; the remaining 2 charges are similar to the third but relate to different periods.  The third charge was as follows:

“3rd Charge

Statement of Offence

Agent using a document with intent to deceive his principal, contrary to sections 9(3) and 12(1) of the Prevention of Bribery Ordinance, Cap 201.

Particulars of Offence

WONG Kei-kwong, being an agent of the Hong Kong Government (“HKG”) namely an Engineer of the Highways Department on about the 5^th day of June 1991, in Hong Kong, with intent to deceive his principal, used a document, namely an Application for Private Tenancy Allowance in relation to the leased accommodation at Block 5, 4/F, Unit A, Peridot Court, 17½ Miles, Castle Peak Road, Tuen Mun, (“the leased property”) in respect of which the HKG was interested and which contained a statement which was false or erroneous or defective in a material particular, namely that the said WONG Kei-kwong was eligible to claim and receive private tenancy allowance in respect of the leased property under the provisions of the Civil Service Regulations, and which to his knowledge was intended to mislead the HKG.”

4.Section 9(3) of the Prevention of Bribery Ordinance reads:

“(3)  Any agent who, with intent to deceive his principal, uses any receipt, account or other document-

(a)   in respect of which the principal is interested; and

(b)   which contains any statement which is false or erroneous or defective in any material particular; and

(c)   which to his knowledge is intended to mislead the principal,

shall be guilty of an offence.”

5.At the trial, in November 2005, the District Court judge held that the interview evidence of the applicant was inadmissible.  Since no further evidence was offered, the applicant was acquitted of all charges.

6.On 23 June 2006, the Director of Highways informed Mr Wong that it was alleged that he had misconducted himself in relation to the receipt of a private tenancy allowance.  He was offered the opportunity, which he accepted, to explain why there should not be an inquiry under the Order, and the Public Service (Disciplinary) Regulations.  The charge which was brought against the applicant was:

“You, Mr WONG Lei-wong, misconducted yourself while you were employed as an Engineer/Senior Engineer in the highways Department in that you had improperly received the private tenancy allowance between 1 August 1991 and 15 October 1995 in respect of the property at Unit A, 4/F Block 5, Peridot Court, 17½ Miles, Castle Peak Road, Tuen Mun, in which you have a financial interest, in breach of CSR 852(5).”

7.CSR 852(5) relates to claims for private tenancy allowances or accommodation allowances.  It reads:

“(5)  (a) an officer shall not claim private tenancy allowance or accommodation allowance in respect of:

(i) accommodation owned by the officer himself and/or any relative of the officer; or

(ii)    accommodation in which the officer himself and/or any relative of the officer have/has a financial interest;”

8.Initially, on the application for judicial review, a number of different issues were raised.  The most important, however, was the question as to whether the disciplinary proceedings were barred by reason of section 15 of the Order.  Section 15 provides:

“An officer acquitted of a criminal charge shall not be punished in respect of any charges upon which he has been acquitted, but he may nevertheless be punished on any other charges arising out of his conduct in the matter which do not raise substantially the same issues as those on which he has been acquitted and the appropriate proceedings may be taken for the purpose.”

9.It was the first respondent’s position that the issues raised in the criminal proceedings were not the same issues as arose in the disciplinary proceedings.  The major point taken was that the criminal proceedings involved issues as to the applicant’s knowledge at the time of submitting the application for an allowance and whether he intended to mislead the Government by use of the application form.  It was said on behalf of the first respondent that no element of dishonesty in respect of the submission of the application form need be considered under CSR 852.  The judge acceded to that argument.  In paragraphs 32-33 he said:

“32.  The most significant element of the criminal charge faced by Mr Wong was that he must have used the documents with an intention to deceive.  Were that element not proved the prosecution would inevitably fail.  But the disciplinary charge faced by Mr Wong contains no such element.  It is sufficient that he must be proved to have received the private tenancy allowance “improperly”.  That he may have received it improperly does not require proof that he received it dishonestly.  It will be sufficient to establish that he received it “improperly”, irrespective of any intention Mr Wong had, if it is established that he received it in circumstances where he ought not to have received the PTA.  It is plainly improper to receive something that you ought not to receive, but it may not be dishonest.

33.   Further, each of the criminal charges faced by Mr Wong required proof beyond reasonable doubt that Mr Wong had used “a document” to achieve receipt of the PTA with the appropriate intent.  The disciplinary charge faced by Mr Wong does not require any proof at all that he had used the document to achieve the receipt of the PTA.  The evidence may well establish that a document was used to achieve the receipt of the PTA, but the disciplinary charge does not require proof that it was Mr Wong who used the document to achieve the payment.”

This appeal

10.Although in its initial form the notice of appeal simply raised the point as to whether section 15 of the Order would be a bar to the disciplinary proceedings on the basis that the disciplinary charge faced by the applicant raised substantially the same issues as those faced by him in criminal proceedings, the amended notice of appeal appears to be rather more complicated and it seeks to raise questions as to whether the principles of double jeopardy or autrefois acquit applied.

11.It has to be noted that section 15 does not refer to either double jeopardy or autrefois acquit.  It simply requires the determination of whether the disciplinary charges raise substantially the same issues as the criminal charge of which he has been acquitted.  Furthermore, the section is predicated on the fact that the same conduct that led to the criminal charges on which the officer was acquitted may give rise to disciplinary charges.  What must be considered are the issues that arise.

12.I am confirmed in my view that what must be considered are the issues which arise in the two sets of proceedings by the fact that that is how the predecessor to section 15 had been interpreted.  Our attention was drawn to the fact that section 15 is in identical terms to the previous Colonial Regulation 62.  That Regulation was considered in the case of Wong Chun Sing and Ng Fook Yiu CACV 9 of 1984, 13 March 1984.  In that case Fuad JA gave the main judgment and although he said that Colonial Regulation 62 was “clearly designed to prevent double jeopardy”, he went on to say in paragraph 26:

“26.  However, I do accept that Colonial Regulation 62 is not to be given a narrow, grudging application so as to deprive it of its full significance. I remind myself that that Regulation first prohibits the institution of disciplinary proceedings in respect of a charge upon which a police officer has earlier been acquitted.  It goes on to say that an officer may be proceeded against on any other charge arising out of his conduct in the matter which does not raise substantially the same issues as those on which he has been acquitted.  Thus, the Regulation does not say that an officer may not be the subject of disciplinary proceedings in respect of an offence of which, or the facts led at a previous trial, he could have been convicted.  And, it must be noted, the Regulation is concerned with issues and not facts.”

13.It was on that basis that in that case the court held that although the facts giving rise to the criminal charge might be the same as the facts in relation to the disciplinary charge, the issues involved may different.  Fuad VP went on to say:

“In the criminal proceedings, as we have seen, the Applicants were charged with conspiracy to obstruct the course of justice in that they and others should act contrary to their public duty as Customs Officers.  As the judgment of the Court of Appeal delivered by Roberts, C.J. makes clear the issue there was whether they had or had not conspired.  In the proposed inquiry the issue will be whether or not each has individually solicited and accepted bribes.  In my judgment the nature of the evidence, that is to say the facts sought to be proved, is not conclusive.  The facts relied upon by the Crown in the criminal trial may be the same, or substantially the same as those that will be sought to be established at the inquiry, but this situation is not, in my view, embraced by the words employed in the Regulation.”

14.Leonard VP agreed with Fuad JA and so did Hunter JA who said:

“29.  I also agree. I think that under Regulation 62, one has to ask oneself first what were the issues raised at the criminal trial.  The answer to that, in my judgment is to be found at page 10 of the judgment of the Chief Justice, at page 70 of the record where he analyzes and sets out the various ingredients of the charge of conspiracy which the accused then faced.  One only has to read those ingredients to see that they do not include a charge of bribery which is the subject matter of the disciplinary charge.”

15.As already noted, it was the contention on the part of the first respondent, as well as being the basis of paragraph 32 of the judgment in the court below, that the issues in the two sets of proceedings differed by reason of the fact that one of the issues in the criminal charges was whether there was an intention to deceive by submission of the application form and that was absent in respect of the disciplinary charge.  In my view, although the logical consequence of proof of the facts in the disciplinary charge would be that there was almost certainly an intention to deceive, the issues in the 2 proceedings are different.

16.It is true that CSR 852(5) is not concerned with receipt of money but is concerned with claiming monies.  Under CSR 852(5) an officer must not claim a private tenancy allowance or accommodation allowance in respect of which the officer himself or any relative has a financial interest.  In this case it is said that the officer had a financial interest in the relevant property for which the allowance was claimed.  The disciplinary charge relates to the applicant having “improperly received the private tenancy allowance” the closing words of the charge are that he did it “in breach of CSR 852(5)”.

17.It is alleged that what was done was in breach of that Regulation, hence what is alleged is that the officer claimed the private tenancy allowance when he himself had a financial interest in the accommodation.  Whilst I see that it is implicit in the disciplinary charge that the receipt of the money was consequent upon a claim for an allowance which the officer must have known he had no right to make, the officer’s honesty in filing the particular form which constituted the claim for the allowance is not strictly in issue.  It is true it is a very narrow distinction, but strictly speaking the disciplinary charge could be proved without establishing an “intent to mislead the HKG”.  It suffices to establish receipt of an allowance consequent upon submission of an application form, the payment of an allowance and that the officer had an interest in the property.

18.For completeness I would say that given the terms of CSR 852(5) I would not agree with the judge’s conclusion that the disciplinary charge does not require proof that the applicant used a document.  The reference in the final words of the disciplinary charge is to CSR 852(5).  The CSR commences “An officer shall not claim…”.

19.In the circumstances I would dismiss this appeal with an order nisi of costs in favour of the first respondent.

Hon Le Pichon JA:

20.I agree.

Hon Sakhrani J:

21.I also agree.

Mr Chan Chi Hung SC, Mr Ken Ng & Mr Matthew T.S. Tse, instructed by Messrs Au Yeung Cheng Ho & Tin, for the Applicant/Appellant

Mr Andrew Mak, instructed by Department of Justice, for the 1^st Respondent/Respondent