Read the full judgment text of CACV 000018/1998 on BabelCite. This Court of Appeal judgment was delivered on 29 July 1998 before Nazareth, V.-P., Mortimer, V.-P., and Rogers, J.A..
Administrative law – judicial review – police discipline – duty to give reasons – scope of disciplinary punishment. Police (Discipline) Regulations, Cap 232, Regulations 13(f), 13(g), 14, 14(4), 14(6)(a) and 15 – Police General Orders 6-01, paragraph (8) – Hong Kong Bill of Rights, Article 11(1) – R v Civil Service Appeal Board ex p Cunningham [1992] ICR 816 – Ng Kam-chuen v Commissioner of Police 1997 No. 241, unreported. Police Constable NG Wai-sang was charged with failure to be prudent in his financial affairs contrary to Police General Orders 6-01, paragraph (8), having incurred unsecured debts of HK$540,757 from 13 credit card companies and banks arising from an extravagant lifestyle and supporting his estranged wife's spending, with no gambling or illegal activity. He pleaded guilty, voluntarily reported his indebtedness and filed for bankruptcy, and had 15 years of service with a good record and 20 compliments. Chief Superintendent McCabe originally imposed dismissal suspended for 12 months, but the Force Discipline Officer increased the punishment to outright dismissal under Regulation 14, and the Assistant Commissioner dismissed the applicant's Regulation 15 appeal on 16 December 1996, upholding dismissal. The applicant applied for judicial review, which Yam J refused, and appealed to the Court of Appeal. The additional ground of appeal alleging that Police General Order 6-01 paragraph (8) was irrational and created an irrebuttable presumption in breach of Article 11(1) of the Hong Kong Bill of Rights was held not arguable on the facts because the applicant had pleaded guilty not only to serious pecuniary embarrassment but also to resulting impairment of efficiency. Whether the Assistant Commissioner's reasons were sufficient to demonstrate a fair decision – held, no: fairness required the tribunal to consider, and indicate that it had considered, a sentence removing the applicant from the Force but preserving his pension rights, such as compulsory retirement under Regulation 13(g) or order to resign under Regulation 13(f), particularly given the applicant's 17 years of good and efficient service and the fact that dismissal carried the additional draconian consequence of forfeiting all pension rights earned during his service. The reasons given, both by the Force Discipline Officer and the Assistant Commissioner, did not indicate that any lesser punishment involving removal from the Force without loss of pension had been considered. Appeal allowed, certiorari granted to quash the Assistant Commissioner's decision of 16 December 1996, and the matter remitted for reconsideration. Order nisi for costs to the applicant both in the Court of Appeal and below.
Legal issues: Whether the reasons given by the Assistant Commissioner on appeal were sufficient to demonstrate that the dismissal decision was reached fairly
Outcome: Appeal allowed; certiorari granted to quash the Assistant Commissioner's decision of 16 December 1996; the matter to be reconsidered and decided again
Cited by 1 case