Ng Wai Sang v. Secretary for Justice

CACV000018/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 18
(Civil)

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Coram: Nazareth, V.-P., Mortimer, V.-P., and Rogers, J.A. in Court

Dates of Hearing: 25 March 1998, 29 and 30 April 1998

Date of handing down Judgment: 29 July 1998

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J U D G M E N T

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Mortimer, V.-P. :

1. This is an appeal against Yam J's refusal to judicially review a decision of the Assistant Commissioner of Police dated 16 December 1996 whereby the applicant was dismissed from the Police Force on 14 December 1996.

2. The Assistant Commissioner's order was the final determination in proceedings brought against the applicant on 28 August 1996 when he pleaded guilty to the following disciplinary charge:

"Police Constable 23187, NG Wai-sang, of the Royal Hong Kong Police Force, you are charged that on 2nd June 1996, in Hong Kong, you did fail to be prudent in your financial affairs, namely that you incurred outstanding debts in the sum of HK$540,757 which resulted in serious pecuniary embarrassment impairing your efficiency as a police officer contrary to Police General Orders 6-01, paragraph (8)."

The applicant was represented by a senior inspector and he pleaded guilty on the basis of brief facts put before the Appropriate Tribunal, Superintendent Chow Keng-kan. The superintendent considered a written statement in mitigation and made his award the following day. He conveniently summarises the facts and the background as follows:

"PC 23187 is 33 years of age and married in 1993. He has no child at present. He has 15 years of service and has been posted to SW since June 1991. I have examined his record of service and find that he has a good service record and has been rated 'very good' for duty performance since 1987. He has been reported to be an efficient, trustworthy and professional officer. He has not passed the PC to Sgt Examination and has received 20 compliments. He has a clear record for disciplinary offence and this to his first conviction for contravention of Police Orders.

I have also considered carefully the facts of the case submitted. The Defaulter voluntarily reported his indebtedness to the Staff Relation Officer, SW that he had accrued an unmanageable debt exceeding half a million dollars and has filed a bankruptcy with the High Court. He was ordered to present himself to the Official Receiver and required to pay $8,000HK monthly as from 30-7-96. The reasons for his indebtedness were taking his girlfriend to expensive night spots and adopting an extravagant lifestyle. The Defaulter was married in 1993 and spent another $200,000HK and had visited Macau seven times for sight-seeing during the ten month period between July 1995 and March 1996. He has owed a total of $540,757HK on 13-6-96 to 17 credit card companies and banks/financial institutions.

In his written mitigation Statement, the Defaulter admitted his first debts were incurred through medical treatment for his late father and the debts were compounded by supporting his estranged wife's expensive spending. He obtained the debts from legitimate sources and he did not (get) involved in any illegal activity or gambling.

In deciding on my award, I bear in mind the principle laid down in the Force Discipline Manual that punishment awarded must normally tend to be corrective rather than punitive.

In considering the whole circumstances of this case as presented to me, I find there is no excuse for the Defaulter to have been so heavily indebted to a sum of over half a million dollars HK and he did fail to be prudent in his financial affairs. I have also considered his clear disciplinary record, good record of service, his plea of guilty and seemed to be remorseful, his voluntariness to report his debts, his present repaying capability and also more importantly , there is no evidence to show that he has been involved in any illegal or gambling activities. Despite of all these, however I have reminded myself of the need to adopt a serious approach to breach of discipline such as this as well as the Force's concern on indebtedness. I feel that it is beyond my power under the Schedule of Powers of Punishment in the Police (Discipline) Regulations to award the punishment. I therefore reserve the award and submit this case to a senior officer for the award of punishment. The Defaulter and his defence were so informed."

3. Consequently, the case came before Chief Superintendent McCabe under Regulation 14 of the Police (Discipline) Regulations, Cap 232 on 10 September 1996. The applicant was represented by the same Senior Inspector. The Chief Superintendent ordered the applicant's dismissal from the Force to be suspended for 12 months. His reasons were:

"In making an award in this case I have taken into consideration the following points:

this is a serious offence which renders an officer incapable of any employment within the Force which requires trust and reliability;

it is a prevalent offence which causes considerable concern to the Force and the public as a whole; and

the offence has been brought about by reason of the Defaulter's insouciance as to the accumulation of debts and the deliberate manipulation of his creditors' accounts to maintain an extravagant lifestyle.

I have also taken into consideration:

the Defaulter's guilty plea and obvious remorse;

the Defaulter's plea in mitigation and the facts that he volunteered the information as to his indebtedness, and has accepted the trauma and embarrassment of bankruptcy in order to repay his debts in the sum of HK $8,000 per month;

that the loans and advances obtained were from legitimate sources of finance;

that there is no evidence before the tribunal that the indebtedness was the result of the Defaulter personally engaging in gambling; and

the Defaulter has a clear disciplinary record and a good record of service.

I take a very serious view of the offence, the dangers of which are well known to all Police officers."

Under Regulation 14(4) of the Regulations the result of the proceedings was forwarded to the Force Discipline Officer. Exercising his powers, he confirmed the finding of guilt but considered that the punishment ought to be increased from dismissal suspended for 12 months to dismissal. Having given the applicant the opportunity of showing cause under Regulation 14(6)(a) he dismissed the applicant on 23 October 1996. He gave the following reasons:

"Having considered the representations at (12) which has no merits together with all relevant factors such as those at M.8 and the serious circumstances of this case, I consider appropriate to vary the award 'to dismissal'."

4. The applicant exercised his right of appeal to the Commissioner under Regulation 15 but on 16 December 1996 Assistant Commissioner Tsang Yam-pui dismissed the appeal and upheld the sentence for the following reasons:

"I have considered the appeal very carefully. PC 23187 reported his indebtedness situation at a time when his debts were mounting to such an extent that he had no other alternative but to seek help. To declare bankrupt was almost his only option and to do so would in any event disclose his predicament to his employer, i.e. the Force. I therefore do not view his volunteering to report his financial position with much favour.

2. This officer's lifestyle is such that I cannot attach any hope for a drastic reform, which he will need in order to sustain his repayments to his creditors over a long period of time. Consideration to retain him in the Force must also taken into account his unsuitability to perform any duty of trust. I have therefore concluded that he will be a liability to the Force and that he should be dismissed.

3. The appeal is dismissed and the award of Dismissal is upheld Please inform the officer accordingly."

Additional ground of appeal

5. On 25 March 1998 we gave leave to the applicant to argue a further ground of appeal to the effect that Police General Order 6.01 paragraph 8 was a disciplinary offence unknown to the law. The offence provides:

"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."

The point which Mr Paul Harris, who appears for the applicant, wished to pursue was that the automatic assumption inherent in the Regulation that any officer suffering from serious pecuniary embarrassment was by that reason impaired in his efficiency was irrational and an irrebuttable presumption in breach of Article 11(1) of the Hong Kong Bill of Rights. We were persuaded that this point could be arguable following the reasoning of this Court in Ng Kam-chuen v Commissioner of Police 1997 No. 241, unreported, giving leave to apply for judicial review of a decision under the same Regulation.

6. However, it quickly became clear when we heard submissions on the point that it was not arguable in this case. As can be seen from the way in which the disciplinary charge is framed, the applicant pleaded guilty not only to serious pecuniary embarrassment but also to resulting impairment of his efficiency as a police officer. In argument Mr Harris sought to resile from the consequences of this plea of guilty but this was only permissible, insofar as it was relevant at all, to demonstrate the extent of the impairment.

The reasons given for dismissal

7. The extent of this impairment was relevant to the main thrust of the appeal which was that the reasons given by the Assistant Commissioner on 16 December 1996 are insufficient and demonstrate that the decision to dismiss was not taken fairly because no other award was considered.

8. Mr Harris made submissions on the necessity for the Assistant Commissioner to give reasons for his decision citing R v Civil Service Appeal Board ex p Cunningham [1992] ICR 816. He also adopted as part of his argument passages from de Smith, Woolf and Jowell Judicial Review of Administrative Action 5th Edn. dealing with the same point. But, the various disciplinary tribunals clearly considered that fairness required the giving of reasons in an important decision such as this. I agree. In these circumstances the reasons given fall to be considered on this appeal.

9. The basic approach is that domestic tribunals regulating police discipline are left free to make their own decisions. The court's only concern is whether the reasons given demonstrate that the decision was reached fairly. It is no part of the court's task to examine any reasons given with undue rigour. All that is necessary is that the reasons, however briefly expressed, should demonstrate that the principal issues have been considered and indicate why the decision was reached. In disciplinary proceedings where a sentence is imposed upon a defaulter all that is usually necessary is for the tribunal to indicate why the defaulter's main contentions are accepted or rejected and why it is necessary to impose one particular sentence rather than another - unless one sentence is the only reasonable option.

The issue before the Assistant Commissioner

10. The issue before the Assistant Commissioner concerned sentence. Chief Superintendent McCabe considered dismissal suspended for 12 months to be adequate. He gave relatively full reasons. The Force Discipline Officer disagreed and imposed dismissal without suspension. He gave brief reasons which I do not find it necessary to consider further because the Assistant Commissioner did not adopt them as his own.

11. Dismissal removes the applicant from the Police Force but also has the additional draconian effect of depriving him of all his pension rights earned during his service. Dismissal suspended for 12 months as originally imposed has the effect of allowing a defaulter 12 months probation which, if he completes satisfactorily, allows him to continue in service. It is easy to see (although not a matter for this Court) that such a sentence may not have been realistic here having regard to the extent of the applicant's indebtedness but these were not the only options. If for reasons of personal deficiency rather than crime or dishonesty, it is necessary to remove a person from the Police Force, this can be done without the additional punishment of loss of pension rights. See for example Regulation 13(f) an order to resign forthwith without salary in lieu of notice; and (g) compulsory retirement with pension, gratuity or other allowances, without such benefits or with reduced benefits.

Conclusion

12. Although the focus of the applicant's appeal to the Assistant Commissioner and the testimonials which accompanied it was to avoid his removal from the Force, they raise two important issues:

(1) That his financial problems were not related to gambling; and

(2) During his service since February 1981, he had a good service record, had received many commendations, and was supported by testimonials to this effect.

The Assistant Commissioner's reasons clearly and fairly reject the option of any sentence involving the applicant's continued service. But, neither he nor the Force Discipline Officer considered any punishment which involved his removal from the Force but without loss of pension. In my view, fairness required that such an award should at least have been considered. It was one of the issues for consideration by the Assistant Commissioner on the appeal before him. The reasons, both of the Discipline Officer and the Assistant Commissioner, do not indicate that such a lesser sentence was ever considered. Procedural fairness requires in this case that such a sentence should have been considered.

13. It is important to state that this Court does not involve itself in the decision itself. Whether or not there are good reasons for rejecting some lesser punishment is not its concern. Our only concern is whether the decision-making process was fair. I am satisfied that it was not fair for the reasons I have endeavoured to state.

Order

14. In these circumstances I would allow the appeal, allow certiorari to issue to call up the decision of the Assistant Commissioner of 16 December 1996 and quash it. The consequence will be that the decision must be reconsidered and taken again.

15. I would also make an order nisi that the applicant should have his costs both here and below.

Rogers, J.A.:

I agree.

Nazareth, V.-P.:

16. I also agree.

17. There is no difficulty in recognising the rationality of the decision to remove the applicant from the Force. But that step by way of increasing the punishment, brought the whole issue of punishment to the fore. More than that, the particular circumstances, i.e. the applicant's good and efficient service over 17 years, and the unusually severe effect that removal from the Force of itself would have upon the applicant, cry out for consideration of the award of compulsory retirement. Such an award, unlike dismissal would not necessarily deprive the applicant of his pension, while yet enabling the whole or part of his pension to be withheld if that were considered and thought appropriate. A fortiori in those circumstances fairness required the Commissioner to consider that option. It is not possible in the circumstances here to infer that the Commissioner must have considered it. It follows then that the appeal must be allowed.

18. The appeal is accordingly allowed with the orders proposed by Mortimer V-P.

Representation:

Mr Paul Harris (M/s W.K. To & Co) for Appellant

Mr Robert Whitehead (Secretary for Justice) for Respondent