Chow Kwok Leong v. Secretary for The Civil Service and Another

HCAL 103/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO. 103 OF 2010

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BETWEEN

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Before: Hon Chung J in Court

Date of Hearing: 15 June 2011

Date of Handing Down Judgment: 14 July 2011

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J U D G M E N T

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Introduction

1.This is an application for judicial review of the decisions made:-

(a)   on 15 July 2010 by the Secretary for the Civil Service (“the Secy for CS”) (acting for the Chief Executive (“CE”)) ordering the applicant, a senior police inspector (“SIP”), to be compulsorily retired with deferred benefits;

(b)   on 9 April 2009 by the Commissioner of Police (“CP”) recommending the above course of action to the Secy for CS.

2.Leave to apply was granted on 31 January 2011 relating to the following grounds of the Amended Form 86:-

(1)   the punishment imposed is excessive and out of proportion to the gravity of the disciplinary offence (para. 17 thereof);

(2)   the disciplinary offence is not of a type which should affect the applicant’s suitability to discharge his police duties.  Less severe punishment has been imposed in earlier disciplinary cases (para. 22 thereof);

(3)   the decision not to hold an oral hearing was arbitrary and not founded on valid grounds.  Given the severe punishment imposed against the applicant, an oral hearing should have been afforded to him.  Such a hearing would have enabled the applicant to (i) understand the weight of the evidence for and against him, and (ii) engage legal representation thereat (para. 25 to 36 thereof);

(4)   the decision-makers erred in taking into consideration the applicant’s rank as a senior police inspector when deciding the punishment to be imposed against him (para. 51 to 56 thereof).

Background

3.As stated above, the applicant was an SIP before his compulsory retirement on 16 July 2010.  He joined the police force in December 1994.

4.In September 2001, he was convicted of driving under the influence of alcohol (“drink driving”) for which he was fined and disqualified from driving for a period.  This also resulted in a disciplinary punishment of “severe reprimand” being imposed against him.

5.In June 2008, he was convicted of his own plea of drink driving again in April 2008 (“the June 2008 conviction”).  No casualty was involved in the incident although his vehicle and the pavement railings have been damaged.  The criminal court imposed a fine and disqualified him from driving for a period.

6.The June 2008 conviction was the basis for the disciplinary punishment referred to in para. 1 above.

7.Because the disciplinary process leading to the punishment is also under challenge in this application, a summary of the process is needed to facilitate comprehension:-

(a)   in July 2008, CP issued a memo to the applicant informing him CE would be invited to impose punishment on him for the June 2008 conviction.  The memo also asked the applicant to make representations to CP before doing so;

(b)   in July 2008, the applicant submitted his representations to CP;

(c)   having considered both the said representations and the recommendations of the applicant’s Formation Commander, the Discipline Division opined that a punishment of “compulsory retirement with deferred benefits” should be recommended;

(d)   a staffing note was prepared in November 2008 and sent to the applicant for his representations before seeking the views of the Deputy Commissioner of Police (Management);

(e)   the applicant submitted his representations in December 2008.  Further, he submitted 161 mitigation letters from his friends and colleagues who had worked with him;

(f)   in April 2009, having considered the above CP recommended to CE the imposition of “compulsory retirement with deferred benefits”;

(g)   the applicant was informed of CP’s recommendation and invited to make representations;

(h)   the applicant submitted his representations in April 2009 and attached to it his December 2008 representations and an “Events of biases or prejudices against SIP CHOW Kwok-leong”;

(i)   in May 2010, the Civil Service Bureau (“CSB”) conveyed its view about the applicant’s April 2009 representations and solicited his further representations;

(j)   in June 2010, the applicant submitted his further representations;

(k)   having considered the applicant’s April 2009 representations and June 2010 further representations, Secy for CS directed in July 2010 the applicant be punished by “compulsory retirement with deferred benefits” effective from 16 July 2010.

Is the Punishment Excessive/Out of Proportion ?

8.A police officer who is convicted of a criminal offence faces the prospect of disciplinary punishment under s. 37(5)(a), Police Force Ordinance (Cap. 232).  That provision reads:-

“A police officer in respect of whom a court has found in criminal proceedings that a charge against him in respect of a criminal offence has been proved …, may be dismissed without retirement benefits, compulsorily retired with full retirement benefits or reduced retirement benefits or without retirement benefits, reduced or reverted in rank or subjected to a lesser punishment … ”.

9.CP’s above recommendation against the applicant was based principally on the following grounds:-

(1)   as a supervisory level law enforcement officer, the applicant should be well aware of the serious consequences of drink driving.  The recurrence of the same offence despite the earlier conviction and disciplinary punishment (in 2001) showed he had not taken the lesson seriously and reflected poorly on his judgment, responsibility and professionalism as a police officer;

(2)   although no dishonesty was involved, drink driving was a serious offence and transgressed the values of the police force;

(3)   the applicant’s service record and the support of his friends and colleagues were insufficient to absolve him of the above;

(4)   the applicant’s guilty plea, representations, service and disciplinary records were taken into account.

10.CSB’s above view took into account the following:-

(a)   para. 9(2) above;

(b)   even though the June 2008 conviction took place more than 5 years after the 2001 conviction (and despite s. 39A(3), Road Traffic Ordinance (Cap. 374)), in exercising the power conferred by s. 37(5)(a), Cap. 232, CE was entitled to take into account both convictions;

(c)   police officers found by the criminal courts to be first-time drink driving offenders in the past have faced disciplinary punishment ranging from reprimand or severe reprimand to removal from service. There was also a junior police officer who was given a “caution” for his first conviction and “severe reprimand” for his second conviction;

(d)   because the applicant was a repeated offender, CSB disagreed the proposed punishment was undoubtedly severe and manifestly excessive;

(e)   the factors taken into account by CP and CE in exercise of their discretion to impose punishment against the applicant included the background, nature and severity of the offence, his guilty plea, his general performance and conduct, his length of service and his representations.

11.It is trite law a disciplinary tribunal’s power to impose disciplinary punishment is discretionary in nature.  The courts will not lightly interfere with that discretion unless it has been exercised unlawfully and/or unreasonably.  See, for example, Wong Chi Hung v. Commissioner of Police HCAL 27/2006 (18 February 2008); Lau Kwok Fai Bernard v. Commissioner of Police and Another CACV 93/2005 (31 October 2006).

12.In the context of this application, there is insufficient evidence to establish a valid ground for the court’s intervention.

The Applicant’s Suitability to Discharge Police Duties

13.This ground is essentially a repetition of the ground set out under the previous heading.

14.For reasons similar to those set out thereunder, I do not find this ground to be substantiated.

Oral Hearing

15.The applicant argues that there has been procedural irregularity in that the disciplinary authorities have not afforded him an oral hearing.  It must be noted:-

(1)   the applicant has not sought such a hearing;

(2)   CSB has, of its own volition, raised the matter but decided that there was no need for such a hearing in the context of the applicant’s case.

16.The applicant’s above argument rests mainly on the following grounds:-

(a)   procedural fairness requirements must commensurate with the gravity of the outcome of the proceeding;

(b)   Art. 10 and 11, Hong Kong Bill of Rights Ordinance (Cap. 383) confer a right to oral hearing.

17.The respondents are prepared to proceed on the assumption Art. 10 is engaged.  The relevant part of that article reads:-

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. … ”.

18.The respondents submit that whether there has been procedural fairness despite the lack of an oral hearing is to be decided by examining the “scheme” as a whole.  The word “scheme” refers to both the disciplinary authorities (CP and Secy for CS) and the availability of the remedy of judicial review.

19.Further, the respondents contend that in deciding the matter, the following are important considerations:-

(1)   whether the person affected has asked for an oral hearing: Lloyd v. McMahon [1987] AC 625; Tong Yu Lam v. The Long-Term Prison Sentences Review Board [2009] 4 HKC 133;

(2)   whether there are factual disputes: Chow Shun Yung v. Wei Pih Stella (2003) 6 HKCFAR 299;

(3)   whether the written representations are detailed/extensive: Lloyd v. McMahon, above.

20.Here, as stated above, the applicant has not asked for an oral hearing; in addition, there was no (or at least no substantial) factual dispute and the applicant’s representations were detailed and extensive.  There is no proper basis for alleging, even at the stage of this application, that the applicant failed to understand the case against him, or that material omission(s) has/have been found in his written submissions.

21.Art. 11(2) provides:-

“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality-

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(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

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(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, ... ”.

22.Whether the disciplinary proceedings against the applicant are criminal in nature is in dispute.  The applicant contends they were (and so Art. 11 is engaged) while the respondents contend otherwise.

23.The respondents’ said contention finds support from the following:-

(a)   s. 37(5)(a), Cap. 232 aims at regulating and protecting the integrity of the police force; it has no application to the general public;

(b)   it merely provides for disciplinary powers (among other things) to dismiss, to compulsorily retire, to reduce ranking, and does not confer powers to imprison.

Considering the Applicant’s Ranking

24.The respondents argue that there is nothing wrong with considering the applicant’s ranking when imposing punishment: the higher an officer’s ranking, the greater his responsibilities.  As a result, both the public and the police force can expect a higher level of personal discipline and self-control from the applicant than a junior police officer.

Conclusion

25.In short, I agree with the matters put forth by the respondents (summarized above) and disagree with those put forth by the applicant.

26.Accordingly, this application is dismissed.

Costs Order

27.The parties agree that costs should follow the event.  There will accordingly be a costs order that the costs of this application be paid by the applicant to the respondents to be taxed if not agreed.

Ms Annie Lai, instructed by Messrs Jal. N Karbhari & Co., for the Applicant

Mr Abraham Chan, instructed by Department of Justice, for the Respondents