NG PING FU v. COMMISSIONER OF POLICE

HCAL 27/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 27 OF 2009

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REASONS  FOR  JUDGMENT

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1.  The Applicant is applying for judicial review to quash the decisions of:

(1)     The Tribunal for Police defaulter proceedings in convicting him of 3 counts of Making a statement false in a material particular contrary to s. 3(2)(j) of the Police (Disciplinary) Regulations (Cap. 232A) (“P(D)R”) on 14 March 2008;

(2)     the Senior Police Officer (“SPO”) in confirming the 3 convictions on 20 March 2008;

(3)     the Force Disciplinary Officer (“FDO”) in confirming the convictions and issuing the Warning for Dismissal (Specific) valid for 1 year on 10 April 2008;

(4)     the Commissioner of Police in refusing the appeal against the Warning for Dismissal (Specific) on 18 July 2008;

(5)     the Deputy Commissioner of Police in refusing the appeal against the 3 convictions on 31 December 2008.

2.  At the hearing, I granted the application for judicial review and quashed the 5 decisions, and now give my reasons.

Background

3.  The Applicant is a Police Sergeant.  On 8 September 2003, he was arrested by the ICAC for receiving bribes from Wong Lai-moon, then manager of the Golden Lake Seaford Restaurant (“Golden Lake”) at Quarry Bay and sharing it with ex-Police Sergeant Chan Hon-ming (“ex-Sgt Chan”).  It was alleged that he requested PC Mok Yiu-wai (“PC Mok”) to collect the money from him once in 2002.  No charge was pressed due to insufficient evidence.

4.  On 13 December 2006, the Applicant made a statement in a Police internal investigation.  He admitted good acquaintance and frequent contacts with ex-Sgt Chan and PC Mok, but had only been to Golden Lake for meals with his family, and was never there with his friends or colleagues, and had never seen ex-Sgt Chan or PC Mok there.

5.  After the interview, the Applicant complained to his commander Senior Inspector Chan Hung-him that the interviewer did not permit him to answer “I could not remember”.  As advised by SI Chan, the Applicant make a record of his complaint in his notebook.

6.  Thereafter, Police defaulter proceedings were initiated against the Applicant.

7.  Under the P(D)R, the first instance decision shall be made by the Tribunal consisting of an Adjudicating Officer (“AO”), to be reviewed by the SPO and then FDO.  An appeal then lies to the Commissioner (delegated to a Deputy Commissioner for officers at the rank of Sergeant).  At the material time, legal representation was not allowed in Police disciplinary proceedings, but the defaulter was allowed to be represented by an Inspector.

8.  The false statements alleged in the 3 charges were:

(1)     He had only been to Golden Lake for meals with his family members and not with friends or colleagues;

(2)     He had never seen ex-Sgt Chan at Golden Lake;

(3)     He had never seen PC Mok at Golden Lake.

9.  On 17 September 2007, the Applicant pleaded not guilty to the 3 charges.  He was represented by SI Chan.

10.  At the hearing, Wong Lai-moon testified that he saw the Applicant and ex-Sgt Chan and PC Mok at Golden Lake Quarry Bay once in 2002 or 2003.  PC Mok testified that he went to Golden Lake Quarry Bay with the Applicant and his family 2 to 3 times, and ex-Sgt Chan was also present there on 1 of the occasions.

11.  The Applicant’s defence was faulty memory due to lapse of time and the effects of hypnotics prescribed for insomnia and depression.  He said when he was interviewed, he could only recall Golden Lake at Ngau Tau Kok near his home where he went with his family, and it was only when he was charged that he recalled there were 5 Golden Lake restaurants.

12.  The Applicant produced a medical chit from his family doctor Dr KC Ting dated 7 September 2007 to the effect that the Applicant had mood disorder since 1996 and had been on drug ever since and might have loss of memory.  He mood had been stable but was still on dug including hypnotic.

13.  During the adjournment on 10 August 2007, the charges were amended to particularize Golden Lake as the one situated in Quarry Bay.

14.  At the resumed hearing on 10 March 2008, the Applicant pleaded guilty to the amended charges.  He admitted the Brief Facts which included the evidence against him summarized above.

15.  In mitigation, the Applicant again submitted that the mistakes were the result of faulty memory and the effect of hypnotics prescribed for insomnia and depression.

16.  The Applicant produced another medical chit from Dr Ting dated 13 March 2008.  Dr Ting stated that the Applicant suffered from depression and anxiety due to stress from work for the past few years but was well controlled by medication.  He also pleaded in mitigation for the Applicant as a friend of 20 years standing.

17.  The AO found the Applicant guilty of the 3 charges on his own plea.  He found the Applicant was remorseful to the mistakes committed.  The Tribunal awarded a reprimand for charge.

18.  The SPO reviewed the Brief facts, and found they supported the charges.  He confirmed the convictions.  Taking into account the plea and clear record, the reprimands were also confirmed.

19.  The convictions and sentence were further reviewed by the FDO.  In the file note submitted to the FDO (by an officer other than the AO and SPO), it recited the Applicant’s mitigation that he committed the offences out of poor memory as affected by medication for sleeping problem since 1996.  However, the note stated that such mitigation was unconvincing and were deliberate lies which reflected badly on the Applicant’s judgment and professional conduct and out his integrity and honesty into serious doubts.  It was suggested that an award reprimand for each of the 3 charges was “barely acceptable”, and given the severity of the transgression, the FDO was recommended to issue a Warning for Dismissal (Specific) valid for one year.

20.  A Warning for Dismissal (Specific) means that the Applicant was liable to be dismissed if he were found guilty of the same specific charge of Making a statement false in a material particular.

21.  The FDO’s decision stated that taking into account the plea and mitigation, the punishment was lenient.  The Warning was also issued.  He did not deal with the point on medication and faulty memory. 

22.  The Applicant appealed to the Commissioner against the Warning for Dismissal.  However, the Commissioner found that the appeal would not be entertained as the Warning was not a statutory punishment under P(D)R.

23.  The Applicant appealed to the Deputy Commissioner (vice) against the convictions and reprimands.  The Deputy Commissioner found that the Applicant had raised the defence of faulty memory and influence of medication, then he pleaded guilty and admitted the Brief facts and he made the same mitigation as the defence.  It was the Applicant’s decision whether to plead guilty, and he did not raise the unfitness of mental state before the Tribunal.  Hence, the Tribunal was not at fault in accepting the guilty plea.  The appeal was dismissed.

Grounds of review

24.  Mr Poon, for the Applicant, submitted that:

(1)     The Tribunal erred in law in accepting the Applicant’s guilty pleas which were equivocal as to the mental element and in convicting him of the 3 charges;

(2)     The Tribunal was Wednesbury unreasonable in finding the statements were false in material particulars;

(3)     The Tribunal was procedurally unfair as at the time of the hearing, the Applicant was not allowed legal representation under ss. 9(11) and (12) of P(D)R.

25.  Mr Poon adopted the following points raised by the Court:

(1)     The mitigation was rejected by the FDO as deliberate lies without the opportunity for the Applicant to deal with them in procedure akin to a Newton inquiry in criminal sentencing;

(2)     There was no reason as to why memory loss of past events (save apparently there is no continuing memory loss at the time of hearing) was considered unconvincing and rejected by the FDO;

(3)     It is inappropriate for the Court to make decision on matters of facts and evidence without hearing the Application especially where no reason for rejection of evidence was given below.

Ground of the Respondent

26.  Mr Kwok, for the Respondent, indicated that opposition to the application for judicial review was no longer maintained on the grounds raised by the Court, and would consent to quashing of the 5 decisions upon no order as to costs. 

27.  Mr Poon did not make any submission on costs.

Discussion

28.  By reason for the respondent’s stance, the application for review was granted and the 5 decisions quashed.

Costs

29.  I made no order as to costs on the proceedings.

30.  I thank counsel for their helpful submissions.