Kong Kwok Keung v. Commissioner of Police

HCAL 128/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTION AND ADMINISTRATIVE LAW LIST

NO. 128 OF 2012

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J U D G M E N T

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1.The Applicant is applying for leave for judicial review against:

(1)  The decision of the Adjudicating Officer dated 24 October   2011 convicting the Applicant of serious pecuniary   embarrassment stemming from his financial imprudence   which has impaired his operational efficiency in contravention of Police General Order (“PGO”) 6-01(8);

(2)  The decision of the Senior Police Officer dated 7 November   2011 confirming the finding of guilt and making the award of    reduction in rank to police constable;

(3)  The decision of the Force Disciplinary Officer dated 17 February 2012 confirming the finding of guilt and the award of reduction in rank to police constable and making a warning for dismissal (general) valid for 3 years;

(4)  The decision by the Commissioner of Police dated 12 July 2012 ratifying the finding of guilt, award of reduction in rank and warning for dismissal.

Introduction

2.The Applicant joined the Police Force as a police constable in 1993.

3.In 2007, his wife petitioned for divorce (FCMC 9555/2007), claiming half entitlement to the matrimonial assets of about $1.6 million.  The Applicant averred that he gambled away the family savings in Macau.  Notwithstanding that, the Family Court ordered him to pay a lump sum of $775,000 to his ex-wife in December 2008.

4.In 2007, the Applicant sought help from the Police Welfare Officer about the divorce, without reporting the matter to his commander or requesting the PWO to do so for him.

5.In September 2009, the Applicant was promoted to Sergeant while his divorce was not formally made known to the Force, and was posted to the Airport Security Unit (“ASU”).

6.On 22 March 2010, the Applicant was adjudged bankrupt by reason of failure to make the lump sum payment to his ex-wife.  On 15 April 2010, the Applicant was classified as an officer with unmanageable debts (“OUD”), and was restricted from drawing firearms and removed from front line duties at the airport.

7.PGO 6-01(8) (1999 version) provides that:

“A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment stemming from financial imprudence which leads to the impairment of an officer’s operational efficiency will result in discipline action.”

8.The Applicant was charged, inter alia, with contravention of PGO 6-01(8) (Charge (A)):

“(The Applicant), you are charged that from 12 December 2008 onwards, in Hong Kong, you did fail to be prudent in your financial affairs by amassing unmanageable debts of $775,000, which serious pecuniary embarrassment stemming from your financial imprudence has impaired your operational efficiency, contrary to PGO 6-01(8).”

9.During the disciplinary enquiry into his bankruptcy,  the Applicant admitted gambling away the family savings in Macau.

10.It is common ground that the Applicant always had good performance reports, before or after being placed on restricted duties.

Adjudicating Officer’s decision

11.The Applicant was found guilty of Charge (A) by the Adjudicating Officer in the judgment dated 24 October 2011 (“AO”): 

“10. ... there were two essential elements for the Prosecution to prove:

i. that from 2008-12-12 onwards to present, Defaulter was imprudent in his financial affairs by amassing an unmanageable debt of HK$775,000; and

ii.  that the serious pecuniary embarrassment resulted from  the debt has impaired Defaulter’s operational efficiency.”

…

33.  The Prosecution was required to prove Defaulter was imprudent in his financial affairs resulting in amassing the debt. In this connection, the Prosecution relied on the judgment of the divorce and ancillary relief proceedings to prove this element. Defaulter conceded that their family asset totalled at $1.65 millions-HK on 2007-07-22 and that his ex-wife was entitled to half of the sum. Defaulter knew his ex-wife had filed a divorce and ancillary relief proceedings sometime in Sep 2007. Defaulter could not control his emotion after realizing the divorce proceedings and gambled away all the savings.  This should include the sum to which his ex-wife was entitled.  Defaulter also made similar confession in his interview with PW1 (SSGT WL YU) that he knew his marriage could not be salvaged and went to Macau to gamble in the hope for security for his ex-wife and his children but eventually lost all the money.

34.  Defence may want to argue that Defaulter should not be responsible for the debt of $775,000-HK as ordered by the court on 2008-12-12 as he only gambled away the money in his possession. However, it must be pointed out that when Defaulter went to gamble in Macau, he should be aware that his ex-wife had already filed a claim of her entitlement of the family asset. In other words, half of the amount of the asset would not belong to Defaulter, if the court ruled in favour of his ex-wife. He should have known or considered half of the money did not    belong to him and yet he gambled it away.

35.  Moreover, the unmanageable debt of Defaulter should not be due to unforeseen and compassionate circumstances as Defaulter had knowledge that half of the family savings should belong to his ex-wife who had already initiated the proceedings for a claim of her share. There was also no ground for compassion for losing such a large amount of money in gambling. Defaulter was obviously imprudent in handling his financial affairs, resulting in his subsequent financial problem.

36.  There was no information on when and how Defaulter gambled in Macau as Defaulter did not disclose such details in this case. Defaulter merely said that he went on the gambling spree after having realized the divorce proceedings initiated by his ex-wife. This should be sometime after Sep 2007. Defaulter was already imprudent in dealing in his financial affairs with his gambling away of all the family savings at such time. With the court order issued to Defaulter on 2008-12-12 and onwards, Defaulter’s financial imprudence was formalized.  His financial imprudence should not stop even if he had ceased gambling as the impact of imprudence had continued to affect Defaulter so that he was subsequently adjudged bankrupt.

37.  Defence submitted that financial situation of Defaulter was healthy as he did not have other debts with the exception of the $775,000-HK after he was adjudged bankrupt. Defaulter was also able to pay the monthly maintenance payment to his ex-wife with no arrears up to April of 2010, as indicated in the Official receiver’s memo to the force [AE 3].  His financial situation should therefore not be unmanageable.  However, the bankruptcy order alone was already irrefutable evidence on Defaulter’s debt being unmanageable, else he could have settled the payment later.  This was also a serious pecuniary embarrassment to Defaulter.

38.  POLR in her final submission quoted the judgment in paragraph 84 in the case of ‘Leung Fuk Wah v Commissioner of Police’ (CACV 2744/2001) to submit that serious pecuniary embarrassment was proved by the police officer having unmanageable debts. Imprudence was proved by the circumstances in which these debts occurred.  She also quoted the case of ‘Lee Kwok Wing Jackson v Secretary for Justice’ (HACL 142/2002), paragraphs 17-18 on the use of the objective test in considering imprudence.  These are reasonable comments which were applicable in Defaulter’s case.

39.  Defaulter’s unmanageable debt was resulted from the loss in gambling of all the family savings by Defaulter, which was evidence of the officer’s imprudence in handling his financial affairs.  The gambling in Macau was also a reprehensive cause in incurring the debt.  Defaulter eventually could not settle the debt, resulting in the bankruptcy order being issued to him.  His unmanageable debt was already evidence of his serious pecuniary embarrassment.

41.  The Prosecution has therefore adequately proved Defaulter’s serious pecuniary embarrassment by amassing the unmanageable debt, as resulted from his imprudence in his financial affairs, after the decree absolute order was issued, which was sometime since 2088-12-12 onwards and until present, being the first element in Charge (A).”

42.  In proving the second element of Charge (A), it is necessary for the Prosecution to prove Defaulter’s serious pecuniary embarrassment had impaired his operational efficiency. PGO 6-01(8) did not specify the definition of operational efficiency. However, it is obvious that this provision should not only be limited to the general efficiency or the actual performance of the officer concerned, but should also include the ‘efficiency’ of the officer judged from the management point of view.

43.   According to the ‘Force Administrative Instructions on the Management of OUD’ [Annex C], OUDs may be in a position where they may be compromised. Accordingly, they should be subject to close supervision. If an OUD is deployed in a sensitive post, the Formation Commander should examine whether the officer is still suitable to remain in the post.  In considering to placing an OUD on restricted duties where there are doubts as to his integrity, mental ability or there are other relevant concerns, should go through, and record, a thought process for making any such a decision. In reaching such a decision the supervisory officer should consider and record matters such as [Annex D]:

·   possible stress on the officer due to his debts;

·   any behavior or remarks indicating the officer is under stress;

·   any concerns about suicidal behavior;

·   concerns about the officer’s integrity and honesty i.e. has  made false statements about, or failed to disclose, his debts  during interviews;

·   concerns about the possibility of danger to himself, his colleagues or to the public at large if the officer is permitted access to firearms;

·   concerns about allowing the officer to handle money or valuables;

·   possibility of having to handle “public money” under CSR 458.

48.  In proving the second element of Charge (A), i.e. serious pecuniary embarrassment resulted from Defaulter’s imprudence in financial affairs has impaired Defaulter’s operational efficiency, the Prosecution called PW3, ex-DDC APTDIST, to testify the reason of his prohibiting Defaulter from drawing firearm for duty and placing Defaulter on restricted duty, i.e. UB APTDIST, after his bankruptcy status was revealed.

49.  PW3 testified that he had considered a number of issues in making the decision.  He had recorded down his thinking process in his report [PE 6] outlined as follows:-

(a)  The possible stress on him due to the bankruptcy order   now placed on him;

(b)  The District is a ‘sensitive’ positive post under Managed   Posting Arrangement (MPA). On a daily basis   passengers’ property including valuables are handled by   officer in the District; and there is a possibility of the officer handling ‘public money’;

(c)  There are concerns over his emotional instability arising  from these proceedings and his family problems; and

(d)  His integrity is in doubt due to his failure to inform his   Formation Commander of the two legal proceedings against him.

50.   PW3 (SSP D Ziemann) elaborated his thinking process in the hearing.  In reaching the decision, he had considered the possible stress on Defaulter as the result of his financial problem becoming known. He had concern how the officer would respond to the stress and emotional stability arising from the proceedings of the bankruptcy and divorce. PW3 has also considered the possibility Defaulter had to handle passenger property and valuables in his daily duty in ASU. PW3 had doubt of his integrity and honesty after he had failed to notify the Formation Commander on the two proceedings. Defaulter had to carry firearm and interaction with the public in ASU.  Police officers might suddenly have emotional breakdown and for the safety of the officer, his team members and members of the public, he decided to put him in a less stressful post where he did not have to respond to incident where instant decisions are necessary.

51.   PW3 therefore prohibited Defaulter from drawing firearm and placed on UB duty in the Control Room of Airport District. It was clear that PW3 did not routinely, or just as a ‘matter of course’, put the officer on the restricted duty solely after his bankruptcy status was known to the management.  Furthermore, his worry of the integrity and honesty of the officer was evidenced by his reprehensible gambling in Macau and failure to report the two proceedings to his Formation Commander.

52.   Defaulter could not continue to perform his original duties in ASU because of his financial problem and was put on restricted duties by the management. His operational efficiency had already been impaired as the result. The Prosecution had adequately proved the second element in Charge (A), as well as the charge as a whole.

53.   DLR had in the hearing made considerable effort to present the consistent exemplary work performance of Defaulter between 2005 and up to Jun 2011 even after Defaulter was transferred to UB duty in the Airport with the view to proving Defaulter’s operational efficiency had not been impaired. DLR highlighted that Defaulter’s outstanding work performance was least affected even after he had been involved in the divorce and bankruptcy proceedings since 2007. PW2, the immediate commander of Defaulter in ASU APTDIST between Oct 2009 to Apr 2010, also confirmed Defaulter’s outstanding performance in the period.  PW2 commented that Defaulter even performed better than other experienced SGTs in the unit. DLR had tried to prove the operational efficiency of Defaulter was at no time impaired.  However, as mentioned in the foregoing paragraphs, the ‘operational efficiency’ in this subject PGO order should not only be limited to his actual work performance but should include “efficiency” judged from the management point of view, particularly the officer’s suitability for posting. There was no dispute that the actual performance of Defaulter had all along been consistently well report.  However, with the considerations and concerns raised by PW3 based on the particular issues and available evidence, Defaulter could not continue his original duty. His ‘Operational Efficiency’ was obviously impaired. And the situation remained unchanged until present when Defaulter was still being placed on the restricted duty and prohibited from drawing firearm.”

12.The finding of guilt was confirmed by the superior officers successively up to the Commissioner as stated above.

13.The Applicant was also found guilty of the failure to report a legal action (namely the bankruptcy petition) (Charge (C)).

Applicant’s grounds

14.Three grounds for judicial review could be gathered from the Form 86 :

(1)   The Adjudicating Officer adopted an incorrect approach   in stating two rather than three elements must be proved   for  Charge (A);

(2)  The adjudicating Officer erred in relying on Tu Kin Yip v SJ (HCAL 147/2001) in that “operational efficiency” under PGO 6-01(8) was not limited to the Applicant’s actual work performance but also included efficiency as “judged from the management point of view”, namely the Applicant’s suitability for posting;

(3)  The finding that the operational efficiency of the Applicant was impaired was irrational given that there was no evidence to prove the operational efficiency of the applicant had been adversely by his bankruptcy.

Discussion

15.PGO 6-01(8) (1999 version) superseded the 1993 version, and the 1993 version reads:

“A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment from whatever cause is regarded as a circumstance which impairs the efficiency of an officer.” (emphasis added)

16.In Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653, Cheung held that under PGO 6-01(8) (1993 version), once serious pecuniary embarrassment is proved, it is not necessary to adduce further evidence on the impairment of efficiency (pp 670-1 para 84).

17.In Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237, the Court of Final Appeal held (at p 290 para 150) that under PGO 6-01(8) (1999 version) there are three elements (as opposed to two elements in the 1993 version):

(1)  the officer must be guilty of conduct amounting to financial imprudence;

(2)  such conduct must result in serious pecuniary embarrassment;

(3)  the said serious pecuniary embarrassment must lead to  impairment of that officer’s operational efficiency.

18.The 1999 version requires proof of impairment of the officer’s efficiency as a separate element of the offence, flowing from his serious pecuniary embarrassment (Lam Siu Po p 294 para 166).  The three elements are causally linked and occur in a sequence: financial imprudence causing serious pecuniary embarrassment causing the impairment of operational efficiency. Thus, the serious pecuniary embarrassment “stems from” financial imprudence and in turn “leads to” the impairment of operational efficiency (Lam Siu Po p 291 para 153).

19.Although the Adjudicating Officer stated “two elements” were required to be proved, his formulation included all three elements of PGO 6-01(8) (1999 version) as elucidated in Lam Siu Po, grouping the second and third elements together.  He expressly stated that there was no intention to follow Leung Fuk Wah where serious pecuniary embarrassment alone was regarded as a circumstance which impairs efficiency, but it was only intended to refer the definition of “efficiency” as judged from the management point of view in Tu Kin Yip (AO para 47). 

20.The Adjudicating Officer’s judgment dealt with the three elements separately: (1) gambling away the family savings at the time of divorce suit where half entitlement was claimed by the wife was financial imprudence (AO paras 33-40); (2) inability to pay the judgment debt of $775,000 and bankruptcy as proof of unmanageable debts resulting in serious pecuniary embarrassment (AO paras 37-41); and (3) the Applicant could not continue to perform his original duties in the ASU because of his financial problem and was put on restricted duties by the management and his operational efficiency had been impaired as a result (AO paras 42-55). 

21.Hence, I do not find that the Adjudicating Officer has erred in his approach in assuming impairment of operational efficiency by reason of serious pecuniary embarrassment as inLeung Fuk Wah.

22.Mr Mr Kwok, for the Applicant, is not seeking to challenge the findings on the first two elements of the offence (namely financial imprudence and consequential serious pecuniary embarrassment).  His challenge of impairment of operational efficiency is many fold:

(1)   consideration of operational efficiency from the management point of view has not been endorsed by Lam Siu Po;

(2)   in any case, the point of view of the management was not supported by objective evidence;

(3)   there was break in casual link between the second and third element of the offence; and

(4)   the management point of view was irrational given the consistently good report of the Applicant.

23.The meaning of “operational efficiency” is not defined under PGO 6-10(8).  The Adjudicating Officer referred to Tu Kin Yip(AO para 47) where Chung J had considered the meaning of “efficiency” in PGO 6-10(8) (1993 versions) and held (at para 27) that:

“... when PGO 6-01(8) refers to ‘the efficiency of an officer’, that phrase is intended to include ‘efficiency’ judged from the management point of view, particularly the officer’s suitability for posting, and should not be limited to his actual work performance. A major reason for introducing PGO 6-01(8) is the need to ensure the highest personal standard of police officers in view of the risk of compromising their work. This is recognized by the Court of Appeal in Leung Fuk Wah Oil: para 80-81 of the judgment. To restrict ‘efficiency’ to mere consideration of work performance and ignore matters like the honesty and integrity of an officer would take away much (if not all) of the purpose for which PGO 6-01(8) was introduced.”

24.“Efficiency” in PGO 6-10(8) (1993 version) was replaced by “operational efficiency” in PGO 6-10(8) (1999 version).  In 盧漢新訴香港警務處處長  (Lo Hon Sun v Commissioner of Police of Hong Kong) HCAL 13/2004, Chung J further held that the replacement of “efficiency” by “operational efficiency” was intended to specify more clearly whether the relevant police officer’s efficiency was impaired should be assessed from the basis of the overall operation of the Police Force. ^[1]

25.In 香港警務處處長對黎應安（Commissioner of Police of Hong Kong v Lai Ying On）CACV 226/2005, the applicant argued that his performance report had not been affected by his indebtedness.  Yeung JA (as he then was) held that:

“26. The appellant is a police officer but he was indebted seriously to the tune of $700,000, and was made bankruptcy because the inability to repay. Whatever the cause of the indebtedness, it indicated the appellant was imprudent in his finance and was under serious pecuniary embarrassment. The appellant cannot argue that although he had financial problem he can still effectively discharge his duties and not in contravention of PGO 6-01(8). The Commissioner’s posting of an officer indebted to a huge amount must be restricted, and this can be viewed as impairment of the officer’s operational efficiency.” [2]

26.In 林志偉訴香港警務處處長（Lam Chi Wai v Commissioner of Police of Hong Kong）HCAL 56/2004, Chu J (as she then was) agreed with the judgment of Chung J in Lo Hon Sun that in consideration of the entirely of PGO 6-01(8), whether the operational efficiency of an officer should be viewed from the management view of the police force as a whole. [3]

27.In Chan Wai Keung v Commissioner of Police HCAL 196/2002, A Cheung J (as the CJHC then was) held that:

“24. Secondly, counsel argues that there was simply no or insufficient evidence to prove that the applicant’s operational efficiency had been impaired by his pecuniary embarrassment.

…

27.   Mr Pun eventually accepts that to a significant extent, his submission really turns on whether the instructions prohibiting the applicant from drawing firearms and the decision to switch him to indoor duties could be justified from a management point of view. This is a matter for the disciplinary tribunal, but not for the Court sitting in its supervisory jurisdiction.”

28.Mr Kwok submitted that in Lam Siu Po, the Court of Final Appeal did not endorse the holding by the Court of Appeal in 陳庚秋及香港警務處處長（Chan Keng Chau v Commissioner of Police of Hong Kong）HCAL 2824/2004 that it was an inevitable conclusion that serious pecuniary embarrassment would impair the efficiency of a police officer. 

29.In Chan Keng Chau, Yeung JA (as he then was) observed that a police officer who was bankruptcy or had serious pecuniary embarrassment would face many restrictions in his work.  In order to prevent police officers who had serious pecuniary embarrassment from the temptation of bribery or abstraction of mind or lack of concentration at work, the Commissioner could make special arrangement in their posting, e.g. to avoid the handling of properties or carrying of arms.  His Lordship then held (at para 35) that:

“It was reasonable for the Commissioner to adopt the above mentioned measures. Hence, it is also inevitable that serious pecuniary embarrassment would lead to impairment of operational efficiency of a police officer.” ^[4]

30.Ribeiro PJ held in Lam Siu Po (at pp 125-6) that:

“161. The Court of Appeal in Chan Keng-chau did not rule on whether evidence of an impairment of operational efficiency was necessary or whether impairment would be presumed simply from the fact of serious pecuniary embarrassment. Instead, the Court declared itself satisfied that the Commissioner had in fact presented sufficient evidence of such impairment, pointing to various items of evidence adduced.

162. I am therefore not persuaded that these two authorities provide any basis for the Court of Appeal’s “inevitability” conclusion.”

31.The Applicant did not challenge the decision to place him on restricted duties at the disciplinary proceedings.

32.However, Mr Kwok submitted that the Administrative Instructions on the Management of Police (Indebtedness) on placement of an officer classified as OUD on restricted duties were couched in loose language of “possibility”, “concerns” or “doubts” as to his integrity or mental ability, etc, and went beyond the interpretation of PGO 6-01(8).  While it was legitimate to place the Applicant on restricted duties asa preventivemeasure, it would not entail the inevitable conclusion of impairment of operational efficiency which carried the possible consequences of reduction in rank or dismissal. 

33.Mr Kwok submitted that impairment of operational efficiency can only be looked at from the management point of view provided that: (1) the facts replied on in placing the Applicant on restricted duties must arise from the serious pecuniary embarrassment; and (2) the finding of facts must be supported by objective evidence.

34.Mr Kwok referred to the four considerations by SSP Ziemann in placing the Applicant on restricted duties: (a) possible stress due to the bankruptcy order; (b) ASU posting was sensitive positive by reason of the possibility of handling “public money” (passengers property and valuables); (c) concerns over his emotional stability arising from the proceedings and family problems; (d) doubt in his integrity due to failure to report the matrimonial and bankruptcy proceedings(AO para 49).

35.Mr Kwok submitted that only (a) stress over the bankruptcy stemmed from the serious pecuniary embarrassment, but there was no evidential basis for the stress but mere possibility; and (b), (c) and (d) did not stem from the serious pecuniary embarrassment.

36.Mr Kwok laid emphasis on the sequential approachas set out in Lam Siu Po: impairment of operational efficiency must be caused by serious pecuniary embarrassment, and it would be double counting and to go back to the first element of financial imprudence in the consideration of operational efficiency.

37.Mr Kwok submitted that even if the Adjudicating Officer were entitled to look at operational efficiency from the management point of view, suitability of posting was not the only consideration and it should be balanced against other factors including the Applicant’s exemplary report of actual work performance.  The finding that the operational efficiency of the Applicant was impaired was irrational.

38.Mr Chang, for the proposed Respondent, submitted that in judicial review, the Court would review the decision making process, but not the evidence unless it was grossly unreasonable. 

39.Mr Chang submitted there are authorities since Tu Kin Yip on the consideration of impairment of operational efficiency from the management point of view including the suitability of positing and the position was not changed by Lam Siu Po. 

40.Mr Chang submitted that neither SSP Ziemann considered the placement on restricted duties as a matter of course, nor the Adjudicating Officer considered serious pecuniary embarrassment will lead inevitably conclusion of impairment of operational efficiency. The placement on restricted duties was also based on the consideration of the Applicant’s integrity.  The duties at ASU included the combat of terrorists.  If the Applicant could not be trusted to carry guns, he would be reduced to administrative duties.  The Adjudicating Officer did not lose sight of the Applicant’s well-reported work performance, but held that his work performance alone was not determinative of whether his operational efficiency had been impaired from a management point of view, particularly his suitability for posting (AO para 53).  The contention that there was no evidence that the Applicant’s operational efficiency was impaired could simply not be sustained.

41.Mr Chang submitted that one should not be over legalistic in looking at the three elements in Lam Siu Po, and one should not overlook the underlying problem was the Applicant’s indebtedness.

42.With respect, I agree with Chung J in Tu Kin Yip that a major reason for introducing PGO 6-01(8) is the need to ensure the highest personal standard of police officers in view of the risk of compromising their work, and impairment of operational efficiency can be looked at from a management point of view including the officer’s suitability for posting.  Hence, I agree with Mr Chang.

43.Integrity and honesty are foremost qualities in police officers entrusted with extensive law enforcement power, and legitimately expected to be so by the public.  Apart from the four considerations mentioned above, the Adjudicating Officer referred to SSP Ziemann’s worry about the integrity and honesty of the Applicant as evidenced by his reprehensible gambling in Macau (AO para 51). 

44.The Applicant has admitted gambling.  The excessive extent of the debt, the circumstances of how it was incurred, and the family obligations of the Applicant at the time all militated against his integrity.  They are all relevant in the context of whether serious pecuniary embarrassment has caused impairment of operational efficiency. It would perhaps be a wholly different matter if the serious pecuniary embarrassment was actuated by a less blameworthy cause.

45.Given the due consideration of integrity in the context of this case, the other concerns which are logical conclusions of common sense become auxiliary.  In any case, they would not deflect from the concern for integrity.  That the Applicant was only convicted of not reporting the bankruptcy but only the divorce case was neither here nor there.

46.The Adjudicating officer has balanced the Applicant’s serious pecuniary embarrassment and his exemplary performance report. Consideration of the weight of the evidence is within the province of the disciplinary tribunal and there is no occasion for the Court exercising the supervisory jurisdiction to intervene in this case.

Conclusion 

47.In the event, I do not see the Applicant do have a reasonably arguable case with realistic prospects of success, and leave is refused.

48.Lastly, I thank Mr Kwok and Mr Chang for their helpful submissions.

Mr Kwok Sui Hay, instructed by Messrs Lee, Mok & Wong, for the Applicant

Mr Jonathan Chang, instructed by the Department of Justice, for the Proposed Respondent

Please refer to CACV40/2013 for the relevant appeal(s) to the Court of Appeal.