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

FAMV No. 26 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 26 OF 2009 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 72 OF 2008)

----------------------

----------------------

Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and  Mr Justice Ribeiro PJ

Date of Hearing:  8 September 2009

Date of Determination:    8 September 2009

----------------------------------

D E T E R M I N A T I O N

---------------------------------

Mr Justice Ribeiro PJ:

1.In November 2005, the applicant, a Senior Engineer in the Highways Department, was acquitted of charges of conspiracy to defraud and of using a document with intent to deceive his principal, contrary to section 9(3) and 12(1) of the Prevention of Bribery Ordinance[1] (“PBO”).  We are only concerned with the PBO charges.

2.Those charges related to his application for a Private Tenancy Allowance regarding a property in which he allegedly had a financial interest.  The particulars were that he had acted with intent to deceive his principal in that he had used a document (the application form) containing a false or erroneous statement as to his eligibility to apply “which to his knowledge was intended to mislead” the government. 

3.In June 2006, a disciplinary charge was brought against him under the Public Service (Disciplinary) Regulations alleging that he had misconducted himself in that he had “improperly” received the allowance between August 1991 and October 1995 in breach of CSR 852(5) of the Civil Service Regulations.  CSR 852(5) makes it a disciplinary offence for an officer to claim an allowance if he or she has a financial interest in the property.  A breach may be established without alleging or proving any intent to deceive and where, for instance, the officer makes the claim recklessly or negligently. 

4.The applicant brought judicial review proceedings challenging the disciplinary inquiry on various grounds.  The present application is concerned only with his complaint that the disciplinary charge impermissibly exposes him to double jeopardy.

5.Section 15 of the Public Service (Administration) Order (“section 15”) makes express provision for the bringing of disciplinary charges after an officer is acquitted of related criminal charges.  It provides that such an officer “shall not be punished in respect of any charges upon which he has been acquitted” but that he may “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”. 

6.The courts below[2] held that section 15 does not bar the disciplinary proceedings since they involve issues which are not substantially the same as those raised in the criminal charges on which he had been acquitted.  The criminal charges crucially required proof of an intention to deceive the government whereas the disciplinary charge does not, requiring him merely to be shown to have “improperly” received the allowance “in breach of CSR 852(5)”.  We agree with that conclusion. 

7.Mr Chan Chi Hung SC invites us to give leave to appeal with a view to advancing the argument that section 15 should be read to bar disciplinary charges which rest on the same facts as the criminal charge, even though an important different issue may have been raised by the criminal charge.  We do not see any arguable basis for any such construction of section 15.  This application must accordingly be dismissed with costs.

Mr Chan Chi Hung SC, Mr Ken Ng and Mr Matthew Tse (instructed by Messrs Au-Yeung, Cheng, Ho & Tin) for the applicant

Mr Andrew YS Mak (instructed by the Department of Justice) and Mr Newton Chan, SGC (of that Department) for the respondent

[1]  Cap 201.

[2]  Saunders J, HCAL 49/2007 (15 February 2008); Rogers VP, Le Pichon JA and Sakhrani J [2009] 2 HKLRD 476.