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HCAL000315A/2000
HCAL 315/2000
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 315 OF 2000
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CHAN TAK KEUNG |
Applicant |
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COMMISSIONER OF POLICE |
Respondent |
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Coram: Hon Chung J in Court
Dates of Hearing: 4 and 5 June 2002
Date of Handing Down Judgment: 13 July 2002
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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 seeking in essence to quash the respondent's decisions dated 21 October 1999 and 26 March 2001 not to promote the applicant. The applicant also seeks to challenge the respondent's decisions (or indications) on the said occasions to bar the applicant from any further promotion.
Background Facts
2. The background facts are largely undisputed and can be summarised as follows. The applicant is a serving police sergeant who joined the Hong Kong Police in 1983 and was promoted to the present rank in 1992.
3. In 1997, the applicant was nominated, under a scheme known as the "Potential Officer Scheme", for consideration for appointment to the Inspectorate. In May 1998, the Final Selection Board recommended that he be appointed as an inspector of police. In September 1998, he was also recommended for promotion to the rank of station sergeant.
4. Following these recommendations, integrity checks were carried out. The respondent found that the applicant's brother was a long-term drug addict and had a long criminal history. They also found that 2 of the relatives of the applicant's wife had criminal records. His wife's sister has been convicted of assault and a drug offence. The criminal record of his wife's brother included a conviction for manslaughter, for which he was sentenced to years of imprisonment.
The Respondent's Decisions
5. The respondent's 2 decisions respectively dated 21 October 1999 and 26 March 2001 are set out in more detail below.
(1) The 21 October 1999 Decision
6. The respondent's decision of 21 October 1999 can be found in his letter to the applicant. It reads:-
"You were recommended by the 1998 Potential Officer Force Selection Board to [the respondent] for consideration for promotion.
I regret to inform you that, although you received a recommendation from the Board, [the respondent], having considered all factors relevant to the promoted post has decided not to endorse your promotion.
I am also to inform you that [the respondent's] decision applies to any future application for promotion to the Inspectorate or to Station Sergeant".
7. The reasons for the decision were not set out in the letter itself. They can, however, be found in the internal minute of the Deputy Commissioner of Police dated 3 August 1999 which reads:-
"I have read all the papers in this file and concur with the assessment that it is unsafe to support [the applicant's] promotion to the Inspectorate. His own background (ICAC and CAPO enquiries), his close family ties to criminal elements and the possible inaction on his part in declaring his rogue relatives all point to doubts on his integrity. ... " (emphasis supplied) .
8. The reference to the applicant's "own background (ICAC and CAPO enquiries)" was related to the following incidents.
9. In chronological sequence, the CAPO enquires should be mentioned first. The applicant was attached to one of the Mongkok Special Duties Squads. In May 1994, CAPO received a complaint from a male who was believed to be a staff of a vice establishment. He claimed he was physically assaulted by the applicant and his team members. The complainant declined to provide details of his complaint and CAPO classified as "Not Pursuable". However, when the complainant was interviewed by the police again in February 1996, he wished to re-activate his previous complaint. During the resultant CAPO investigation, the complainant alleged that the applicant threatened him not to lodge any complaint.
10. When the applicant was interviewed in January 1996 in relation to a disciplinary enquiry, he admitted in essence that there was physical violence between the complainant and the police officers (including him) inside the vice establishment. However, the applicant said that it was caused by the complainant obstructing the licence check of the police and the police officers only tried to subdue him. The applicant explained that the complainant was not charged with obstructing police officers in due execution of duty (nor was the matter reported earlier) because he considered it a minor incident and the police succeeded in carrying out the licence check.
11. The ICAC enquiries were related to an investigation into the acceptance of bribes by police officers of the Mongkok Special Duties Squads. As a result of the investigation, an inspector supervising those squads was charged with and convicted for corruption offence. The applicant was serving with one of the squads at the relevant time. He was implicated in the investigation but was not charged because there was insufficient evidence against him.
12. When the applicant was interviewed in January 1996, he disclosed that the inspector (who was convicted for corruption) approached him and asked him to leave the inspector's friends alone. These people were believed to be vice establishment operators. The inspector then indicated that in return, he would cause the complainant (referred to above) to withdraw his complaint against the applicant for assault. The applicant said he ignored the inspector's request. This incident was, however, never disclosed by the applicant (to the authorities or his own supervising officer) before he was interviewed in January 1996.
13. The reference to the applicant's "possible inaction ... in declaring his rogue relatives" was concerned with this. When the applicant was interviewed in June 1999 for an integrity check, he claimed the following was what he knew about his wife's brother (who has been convicted of manslaughter and served a term of imprisonment):-
"[My brother-in-law] ... was born in Hong Kong. He is working in a painting company in Sham Shui Po as a transportation worker. He is unmarried, residing in So Uk Estate with his mother. I know that he has been working as a transportation worker for years. However, we seldom meet ... ".
The applicant was interviewed again in June 1999 for the same stated purpose. He said this about his brother-in-law:-
"The first time I saw him was about one year ago. Before that, I had not seen him at all, nor had I heard anything about him. Before that, I even did not know that my wife had a younger brother. It was not until about one year ago when I saw [my brother-in-law] at my wife's home (So Uk Estate) that my wife told me that she had a younger brother who had been working in Taiwan before and had just returned to Hong Kong ... ".
It was also recorded in the June 1999 statement that the applicant dialled his wife's mobile phone in front of the interviewer. He claimed to the interviewer that it was then his wife told him the brother-in-law committed robbery and manslaughter and had been imprisoned for several years and had just been released the year before.
(2) The 26 March 2001 Decision
14. This decision was set out in the respondent's letter as follows:-
"I refer to your letter dated 15 March 2001 ...
[The respondent's] decision in respect of the promotion of [the applicant] as stated in his letter dated 21 October 1999 ... still stands".
This letter was asked for by the applicant because the respondent's post was filled by a new Commissioner of Police after the date of the first decision.
Are the Decisions Amenable to Judicial Review?
15. Before dealing with the grounds put forth by the applicant in support of this application, a preliminary point raised by the respondent should be discussed. The respondent argues that the two decisions the subject-matter of this application do not fall within the public law domain. This is because they were decisions related to or arising out of the contractual relationship between the applicant and respondent. The dispute between them was one arising out of the applicant's employment. Accordingly, it is a private law matter.
16. The applicant replies that, the position of a police officer in Hong Kong is no different from that of a police constable in most of the Commonwealth countries. He submits that in both cases a police officer or constable is the holder of a public office and there is no employment relationship between a police officer or constable and government.
17. The above dispute has also been raised by counsel in Fung Yiu Bun v. Commissioner of Police, HCAL No. 2350 of 2001 (the relevant passages of which will be set out below). In short, I concluded in that application a police officer in Hong Kong is a civil servant and there is an employment contract between him and Government.
18. The passages in the Fung Yiu Bun case relevant to this point are:-
"10. The applicant argues that police officers in Hong Kong, like police officers in England and some parts of the Commonwealth, are not employees. The respondent contends that they are. By reason of the parties' acceptance of the test propounded in the East Berkshire Health Authority case for determining whether a dismissal decision is judicially reviewable, this dispute is strictly irrelevant. I shall deal with it for completeness nevertheless.
11. The history relating to the establishment of police forces in England has been outlined in Wade & Forsyth: Administrative Law 8th Ed., pp. 149-51:-
"The outstanding fact about the British police is that they are not under the direct control of the central government: they are organised in local forces maintained by local police authorities. The central government has effective regulatory power, reinforced by financial control, which ensures that, for example, the pay, dress, allowances, and other conditions of service in the police force are uniform throughout the country. The central government also has power to set national objectives for all forces. But it has no power to give orders directly to local forces, and local chief constables have a high degree of independence from any kind of political control. This is an important facet of the constitution, and a prime safeguard against the evils of the police state.
The reason for this independence is that the modern police system ... was devised in the golden age of political liberty in the nineteenth century. In London the Metropolitan Police were established in 1829 ... The next step was to establish borough police forces ...
In due course the numerous small borough forces were merged with the county forces ...
Chief constables and assistant chief constables are appointed by the police authority, subject to the Home Secretary's approval. Lower ranks are appointed by the chief constable ... . "
It was recognised in England that:-
"In their ordinary daily acts and decisions the police are independent of the local police authorities as they are of the central government. ... The truth is that a police officer holds a public position, that of peace officer, in which he owes obedience to no executive power outside the police force. The chain of command therefore terminates at the chief constable, who is in effect an independent authority, and must act free from all political influence, whether national or local ..." (Wade & Forsyth, pp. 153-54).
12. The respondent submits that the above is irrelevant to the Hong Kong situation, especially that since October 1997. Among the matters relied upon by the respondent in this connection is Article 100 of the Basic Law which reads:-
"Public servants serving in all Hong Kong government departments, including the police department, before the establishment of the Hong Kong Special Administrative Region, may all remain in employment and retain their seniority with pay, allowances, benefits and conditions of service no less favourable than before" (emphasis supplied).
Hence, (the respondent argues) Article 100 indicates that police officers in Hong Kong are government employees.
13. The applicant makes 2 points in answer:-
(1) loose language has been used in Article 100 in relation to the words "remain in employment";
(2) the phrase "public servants serving in ... the police department ... " refers to civilian employees of the police department.
Point (2) is a hopeless argument and the applicant does not further pursue it.
14. It is possible that a piece of statute may contain provisions which misunderstand the true legal position or use loose language. In relation to point (1) above, however, the following matters show that, at least in relation to Article 100, there was no misapprehension of the law on the part of the draftsman of the Basic Law, or that loose language has been used:-
(a) in Kimmy Suen King-on v. A-G [1987] HKLR 331, 333 the Court of Appeal, when considering the vicarious liability of government for the wrongful act of a police officer, said:-
"When considering the actions of a member of the [then] Royal Hong Kong Police Force references to that which I might term 'police cases' in other jurisdictions may well be of little use. The method by which they are given authority differs considerably. In Hong Kong such a person is a Crown servant and his authority derives from the Crown. Section 4(3) of the Crown Proceedings Ordinance (Cap. 300) makes clear the liability of the Crown in respect of tortious acts committed by its servant" (emphasis supplied) (per Silke, JA);
(b) in the letter of appointment, it was expressly stated inter alia that the applicant's appointment (presumably similar to, if not the same as, the appointment of other probationary inspectors) was subject to:-
"'Memorandum on Conditions of Service for Local Police Inspector and Constable on Probation' ... [and] Regulations of the Government of Hong Kong Special Administrative Region and departmental instructions ... " ;
(c) the exercise of the powers and duties of the respondent is subject to the orders and control of the Chief Executive: s. 4, Cap. 232;
(d) police officers are paid out of the general revenue of government: s. 12, Cap. 232.
The respondent also relies on Articles 15 and 48(5) of the Basic Law which in effect provide that he is nominated by the Chief Executive and appointed by the Central People's Government. Article 48(5) of the Basic Law also provides that the respondent is regarded as one of the principal officials of the Hong Kong Special Administrative Region. I regard these Articles to be of minimal significance in this application because Chief Constables in England are appointed by the local police authorities but this does not by itself constitute any employment relationship.
15. In relation to point (b) above, the "Memorandum on Conditions of Service for Local Police Inspector and Constable on Probation" provides at clause 1.1 that:-
"The officer is subject to any Executive Orders issued by the Chief Executive for the administration of the public service and to any regulations and directions made under these Orders; and also subject to Government Regulations and Circulars, ... " (emphasis supplied).
Similar wordings can be found in clause 13.1 (relating to the discipline of an officer). Further, clause 3.3 provides:-
"The Government encourages its staff to accept payment of their salaries directly to their bank ... " (emphasis supplied).
Clause 3.5 provides:-
"The Government may deduct from an officer's salary any amount that it may have overpaid the officer ... ".
Clause 4 provides:-
"A term of his employment is that an officer will only be eligible for fringe benefits, including those benefits ... laid down in the Civil Service Regulations ... ".
Clause 12.4 stipulates:-
"The Secretary for the Civil Service may forfeit all earned leave of an officer if he is of the opinion that this officer, resigns in order to avoid disciplinary proceedings"(emphasis supplied).
References to the Secretary for Civil Service can also be found in clauses 13.16 and 13.17. Clause 15.3 provides:-
"An officer whose service is terminated by the Government for reasons other than misconduct may be granted all his earned vacation leave ... " (emphasis supplied).
Finally, clause 17 provides:-
"Notwithstanding anything contained in this Memorandum or in the covering letter of offer of appointment, the Government reserves the right to alter any of the officer's terms of appointment ... " (emphasis supplied).
All the above terms indicate that the Hong Kong government is the applicant's employer.
16. By reason of the above matters, and assuming the terms of appointment of other police officers also refer to those documents set out in point (b) above, I find that police officers in Hong Kong are employees of the Hong Kong government.
Is a Police Officer in Hong Kong a Holder of Public Office?
17. In his written skeleton submissions, the respondent takes the view that a police officer in Hong Kong is a government employee and not the holder of a public office. The respondent indicated in the course of the hearing that if a police officer is a government employee, it is immaterial for the purpose of this application whether he is also the holder of a public office. The applicant, on the other hand, contends that it is important to consider this point.
18. I agree with the respondent's stance at the hearing. Once the test propounded in East Berkshire Heath Authority is accepted (or found) to be the correct test, whether a public servant is, in the words of Sir John Donaldson MR, "in a 'higher rank' or an 'officer'" is unimportant.
19. For this reason, the applicant's arguments about the need for police officers to take the prescribed oath or declaration of office before entering on the duties of their offices (s. 26, Cap. 232) and the form of the oath (Schedule to Cap. 232) need not be further considered."
19. Although the applicant in the Fung Yiu Bun case was different from the applicant herein, counsel for both applicants was the same. The applicant herein advances further arguments not raised earlier in the Fung Yiu Bun case. First, counsel argues that the appointment or promotion of police officers by the respondent involves the performance of a statutory function or power by the respondent: s. 14, Police Force Ordinance, Cap. 232. This indicates that the relationship between the parties herein is not contractual in nature.
20. As stated above, I have found that an employment relationship exists between a police officer and the Government in Hong Kong. There is no valid basis for differentiating the position of the respective applicants in the earlier application and the application herein regarding this point.
21. If a contractual relationship exists between the parties (an employment contract in the context of this application), I do not see how the exercise of a statutory power, or the performance of a function which is statutory in nature (or has a statutory origin), can somehow change the nature of that relationship. The statutory power or function may need to be examined separately to see if there is any valid ground for judicial review arising from the manner of exercise of that power or performance of that function. But this is an entirely different matter and should have no relevance to the nature of the parties' relationship.
22. Secondly, the applicant says a police officer's special power of arrest (which he argues is wider than the power of arrest under s. 50, Cap. 232) shows that the officer is the holder of a public office. It may well be that a police officer is the holder of a public office for that purpose. But, again, I fail to see how that can affect the nature of the relationship between the applicant and the respondent.
23. I therefore maintain my earlier conclusion that a police officer in Hong Kong is a civil servant employed by Government.
S. 14, Police Force Ordinance (Cap. 232)
24. It is undisputed that the respondent's power to appoint police inspectors, or to promote police inspectors, stems from s. 14, Cap. 232. S. 14(1), Cap. 232 stipulates:-
"An inspector may be appointed and promoted by the [respondent]".
Similarly, s. 14(3), Cap. 232 provides that:-
"A non-commissioned officer or constable may be appointed, advanced in salary or promoted by the [respondent]".
25. Once it is recognised that the respondent's power (or function) to appoint or promote police officers (whether under s. 14(1) or 14(3)) is statutory in nature (or origin), whether a police officer in Hong Kong is an employee or the holder of a public office is a red herring. This is because, as was observed in R v. East Berkshire Health Authority, ex p Walsh [1985] 1 QB 153, 164, in order to found liability in public law:-
"... there [has to be] a special statutory provision bearing directly on the right of a public authority to dismiss the plaintiff. In Vine's case the employment was under the statutory dock labour scheme and the issue concerned the statutory power to dismiss given by that scheme. In Ridge v Baldwin the power of dismissal was conferred by statute (s 191(4) of the Municipal Corporations Act 1882). In Malloch's case again it was statutory (s 3 of the Public Schools (Scotland) Teachers Act 1882). As Lord Wilberforce said, it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract the remedies of administrative law. Employment by a public authority does not per se inject any element of public law. Nor does the fact that the employee is in a 'higher grade' or is an 'officer'. This only makes it more likely that there will be special statutory restrictions on dismissal or other underpinning of his employment (see per Lord Reid in Malloch's case). It will be this underpinning and not the seniority which injects the element of public law ... " (emphasis supplied).
Hence, if the above observation reflects the state of the law (which I find that it does), whether a decision is subject to judicial review turns on the "special statutory restrictions" or "other underpinning" of the statutory provision(s) based on which the decision was made.
26. The applicant relies on Ridge v. Baldwin [1964] AC 40, 66. This authority will be dealt with under the sub-heading "(1) Were the Decisions Unreasonable, Irrational or Oppressive?".
27. Thus, even if the applicant is the holder of a public office (and not a civil servant), but the statutory power or function has been exercised or performed correctly and the necessary procedure (if any) has been followed, no relief will be available in a judicial review application. On the other hand, even if the applicant is merely a civil servant, but the statutory power or function has not been exercised or performed properly or the necessary procedure has not been followed, judicial review is normally available. As was observed in East Berkshire Health Authority:-
" ... it is the existence of these statutory provisions which injects the element of public law ... ".
28. Whether an administrative decision falls within the public law domain depends on the nature of the decision; in other words, whether the decision-maker was performing a "public duty" or exercising a "public function". There must be a "public element" in the decision: R v. Derbyshire County Council, ex p Noble [1990] ICR 808, 822-823.
29. What then is the "public element" said to be involved in the respondent's decisions? Other than that the respondent was exercising his "power", or performing his "function" under s. 14, Cap. 232, I do not see any "public element". The applicant has not been able to point to any. I agree with the respondent's argument that the decisions under challenge in this application relate exclusively to whether a police officer should be appointed (or promoted) to a higher rank. The respondent was exercising a power or function like any ordinary employer in the private sector.
30. In R v. Secretary of State for the Home Department, ex p Moore, CO/1691/92, 15 June 1993, a prison officer asked for judicial review of the Secretary's decision not to accept the Civil Service Appeal Board's recommendation that the officer be reinstated. The Divisional Court held that the Secretary's decision was one of private law and hence not amenable to judicial review. The gist of the dispute can be seen in the following passages of the judgment:-
"On the appellant's behalf Mr Berkin argues that, in effect, the Secretary of State acted in an appellate capacity as part of the statutory scheme to which I have alluded. He referred, as I have already indicated, to the eight stages of the procedure through which [the appellant] had gone. On behalf of his client he says that all the matters taken together indicate that this is a matter within the regime of the public law. That is a question which is fundamental to the case ...
On the other hand it is argued primarily ... that the Applicant's complaint relates in reality simply to a personal claim against his employer. Just as in private law matters an employer can dismiss somebody, that cannot be held to be a matter of public law, even though it may be a matter of public interest ...
The matter has been discussed in many authorities, but it does seem to me , at all events, that the first and sensible starting point ... is to look at the principles laid down by Woolf LJ in the case of McClaren v Home Office [1990] ICR 824, [1990] IRLR 338. That of course was a Court of Appeal decision and at page 836B Woolf LJ said this:
'In relation to his personal claims against an employer, an employee of a public body is normally in exactly the same situation as other employees ..... Not only would it not be necessary for him to seek relief by way of judicial review, it will normally be inappropriate for him to do so .... '
That, as I have indicated, is the heart of the argument for the Secretary of State. ... There are exceptions, of course, to that basic principle. I will read again an extract from Woolf LJ's judgment. The exceptions prevail:
'.... where there exists some disciplinary or other body established under the prerogative or by statute to which the employer or the employee is entitled or required to refer disputes affecting their relationship. The procedure of judicial review can then be appropriate because it has always been part of the role of the court in public law proceedings to supervise inferior tribunals, and the court in reviewing disciplinary proceedings is performing a similar role [the rest of the extract is left out]'
... It must however be stressed that in the instant case it is not the decision of the Civil Service Appeal Board which is impugned. It is the decision of the Senior Official following the decision of that Board. ...
... Another exception cited by Woolf LJ is the example:
'..... where an employee of the Crown or other public body is adversely affected by a decision of general application by an employer ..... '
That of course is not this position. This applicant's position is personal and confined to the facts of the case involving [the applicant]. No matters involving prison officers generally arose as a result of the decision made by [the Secretary of State]. Furthermore Woolf LJ indicated that no judicial review in respect of disciplinary procedures of 'a purely domestic nature' would be susceptible to review" (pp. 4-5, transcript of judgment).
If the word "dismiss" in the above passages is replaced by the word "appoint" or "promote", those passages can equally apply to the facts in this application. The respondent's 2 decisions were purely about not appointing or promoting the applicant to the rank of inspector.
31. By reason of the above matters, I find that no "public element" was involved in the respondent's decisions under challenge herein. This application should be refused on this ground alone.
32. In his reply, counsel for the applicant referred to the following cases:-
(a) Frank William Lewins v. Australian National University, No. ACT G17 of 1995;
(b) Crumblin v. Kerr (1988) 79 ALR 74;
(c) Rajkumar v. Lalla & Others [2001] UKPC 53.
Counsel said that these cases were instances where administrative decisions relating to appointment/promotion were judicially reviewed.
33. There is no need to set out the cases in detail suffice it to say they dealt with entirely different facts, statutes and/or code. The Lewins case was concerned with the construction of the Administrative Decisions (Judicial Review) Act 1977 in Australia. The Crumblin case was about the Fire Brigade (Administration) Ordinance 1974 (ACT) and its related Regulations. The Rajkumar case dealt with an administrative decision involving an extensive and detailed code relating to promotion/appointment. None of these cases can advance the applicant's case herein.
Grounds of Application
34. The grounds put forth in support of this application are:-
(a) the respondent's decisions were unreasonable, irrational and oppressive;
(b) the respondent wrongfully fettered his own discretion in barring the applicant from further promotion;
(c) there was procedural unfairness in the manner in which the said decisions were made.
(1) Were the Decisions Unreasonable, Irrational or Oppressive?
35. The first complaint of the applicant under this heading is that the respondent failed to give any adequate or intelligible reasons for his decisions. The respondent submits that there is no general rule of common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even in respect of decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons: R v. Medical Council of Hong Kong, ex p Li Sum-wo [1994] 4 HKPLR 548, 556-8 citing in support Public Service Board of New South Wales v. Osmond (1985) 159 CLR 656, 662-4.
36. I do not think that the applicant's first complaint needs to be dealt with on such broad basis. It can be rejected on the narrower basis set out in R v. Civil Service Appeal Board, ex p Cunningham [1992] ICR 816, 824:-
"... The principles of public law will require that those affected by decisions are given the reasons for those decisions in some cases, but not in others. A classic example of the latter category is a decision not to appoint or not to promote an employee or office holder or to fail an examinee. But, once the public law court has concluded that there is an arguable case that decision is unlawful, the position is transformed. The applicant may still not be entitled to reasons, but the court is" (emphasis supplied).
37. Counsel for the applicant relies on Ridge v. Baldwin [1964] AC 40, 66 where the House of Lords said:-
"So I come to the third class, which includes the present case. There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation".
The short answer to this observation is this application is not about dismissal but decisions not to appoint or promote the applicant.
38. The applicant then complains that the respondent erred in placing weight, or placing excessive weight, on the criminal records of his relatives. The relevant internal minutes of the respondent said this:-
"... I agree that [the applicant] has been quite honest in disclosing his relationship with his younger brother who has a long criminal history and there is no evidence to show that he has been put under undue pressure. As regards his relationship with his in-laws, I share the views that [the applicant] has not given full disclosure ...
... Although there is no concrete evidence to prove that [the applicant] has maintained a close relationship with his brother-in-law, there are [sic] circumstantial evidence to show that he is not telling the whole truth in this respect. Based on this, I tend to agree that the possibility of undue influence on [the applicant], if appointed to Inspector, can be a possibility" (minute dated 16 June 1999) (emphasis supplied);
"... [The applicant] was interviewed by me again on 23.6.1999. When I intended to establish the relationship between him and his brother-in-law, he claimed that in fact the first time he knew his brother-in-law was in 1998 and he had met him about 10 times in total since then. Her [sic] wife told him that her brother used to work in Taiwan but he returned to HK for good last year because the business there was not good. When we further questioned him about the nature of work of his brother-in-law, he then gave a phone call to his wife ...
After the second interview, I still opine that the account given by [the applicant] is doubtful and unconvincing ...
From the two interviews, I believe [the applicant] has been trying very hard to maintain an image that his relationship with his brother-in-law is rather remote and he knows nothing about his past ...
In view of above, I regrettably hold that it is unsafe to offer a recommendation concerning [the applicant's] promotion to Probationary Inspector ... his brother-in-law ... may have undue influence and pressure on [the applicant] if he gets promoted. Besides, his questionable account on this also throws doubts upon his honesty and integrity" (minute dated 28 June 1999) (emphasis supplied);
"Having considered the two statements given by [the applicant], I am not convinced that he is telling the truth about his relationship with his in-laws. [An explanation was then given as to why the applicant's account was incredible] There exist discrepancies in his two statements ...
To deny the promotion of [the applicant] wholly based on the dubious background of his blood brother and in-laws appears, on the face of it, to be unfair on him. However, he did not seem to be forthcoming about what he knows of his in-laws during the vetting enquiry. His response to their criminal background was not positive. Judging from the inconsistencies in his two statements, coupled with his behaviour in the ICAC case, I am of the opinion that [the applicant's] integrity is in doubt and the risk of compromising himself does exist. As such, I do not recommend that [the applicant's] appointment to the inspectorate should continue to be supported ... " (minute dated 9 July 1999) (emphasis supplied).
39. It is immediately apparent from the above that the applicant's second complaint is factually incorrect. The respondent never considered the criminal background of his relatives to be decisive. Rather, the respondent's focus has always been on the applicant's integrity and risk of compromising himself in his work. The respondent obviously has doubts about these by reason of the matters set out in the above minutes. In view of the materials disclosed in his integrity check, I do not consider the respondent's decision to be unreasonable in the Wednesbury sense: Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223.
40. The applicant complains that the respondent's decisions were "oppressive" because in effect he is barred from further opportunities of promotion.
41. In relation to this complaint, the need for police officers to possess a high degree of honesty and integrity must be borne in mind. This is because, in the course of their duties:-
(1) they have access to intelligence and/or other sensitive information;
(2) they are often exposed to high and/or regular risks of temptation to compromise their position.
The observations of the Court of Final Appeal regarding the need for integrity on the part of professionals apply with even greater vigour in the case of police officers:-
"... qualification and competence are not the only qualities in a professional person that matter to the public. Integrity too is vitally important. And this means integrity both in general and in regard to professional matters in particular. If maintaining integrity within a profession involves the exclusion of certain persons who are otherwise qualified and competent to practice, then that is a price that has sometimes to be paid ... ": Medical Council of Hong Kong v. Chow Siu Shek [2000] 3 HKCFAR 144, 155C-D.
42. With the importance of the need for integrity in mind, I do not find the respondent's decisions (or indications) that the applicant should be considered for future promotion to be "oppressive".
(2) Did the Respondent Fetter His Discretion?
43. The statement in the respondent's two decisions to the effect that the decisions not to promote the applicant applies to future applications for promotion may well be an indication rather than a decision as such: see David Chow Siu Shek v. The Medical Council of Hong Kong, HCAL No. 337 of 2001, para. 44-46. But assuming for present purposes that it amounted to a decision, I agree with the respondent's argument that there has not been any fettering of his discretion.
44. The respondent has concluded that the applicant is unfit to be promoted by reason of doubts on the applicant's integrity. This is a decision specific to the applicant and was based on factual circumstances specific to his case. This cannot properly be called a fettering of discretion in the public law sense.
(3) Was there Procedural Unfairness?
45. There are two limbs of complaint under this heading:-
(a) the respondent took into account unsubstantiated allegations relating to the applicant's involvement with the inspector who was convicted of corruption;
(b) the applicant was not afforded an opportunity to be heard and/or to make representations regarding those allegations.
46. As can be seen from the internal minutes set out above, the first limb of complaint is factually unsupported. Further, the matters giving rise to the respondent's doubts on the applicant's integrity came from answers given by the applicant himself in the course of his own interviews.
47. As regards the second limb (set out above), the power or function which the respondent was performing or exercising was one of appointment or promotion to a higher rank in the police force. I do not find that a candidate being considered for appointment or promotion enjoys any right to be heard, whether at common law, or as a matter of construction of s. 14, Cap. 232.
48. In this connection, I agree with the respondent when he relies on the decision in Khan v. Attorney General [1977-1979] HKC 63. The plaintiff therein was a corporal in the police force. He was promoted to the rank of inspector for a trial period of 3 years. He was not confirmed to the rank of an inspector and was ordered by the deputy commissioner to revert to his substantive rank of corporal. In doing so, the deputy commissioner exercised his power under s. 25(1) of the then Police Force Ordinance. The Attorney General accepted that the plaintiff was not given an opportunity to be heard but contended that he was not entitled to that. The Court of Appeal held (at pp. 66E-67B and 67B-69F) that the principle of natural justice did not apply to the above decision, having regard to:-
(a) as a matter of construction, Part II of the Ordinance (of which s. 25 formed part) was to be contrasted with Part III, which provided a disciplinary scheme and contemplated that the tribunal hearing an allegation should act in a judicial manner. There was no such requirement for dealing with discharge or reversion to the former rank under Part II;
(b) a decision of reversion to the former rank was not by way of punishment, but merely by way of terminating the appointment of an inspector on trial or probation. It was the termination of a "privilege" to which the plaintiff could claim no right.
If anything, the expectation of a corporal who was on trial must be much greater than that of the applicant herein, who was merely recommended for consideration for promotion. If such a corporal did not enjoy a right to be heard in the matter, a fortiori the same applies to the applicant.
Conclusion
49. By reason of the above matters, this application is refused.
Costs
50. There is no apparent reason to depart from the usual rule that costs should follow the event. Pursuant to RHC Ord 42 r 5B(6), costs of this application (including any reserved costs) are to be paid by the applicant to the respondent to be taxed if not agreed. The applicant's own costs are to be taxed in accordance with the Legal Aid Regulations.
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(Andrew Chung) |
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Judge of the Court of First Instance |
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High Court |
Representation:
Mr Paul Harris, instructed by Messrs Eli K K Tsui & Co., assigned by DLA, for the Applicant
Mr John Bleach, SC leading Mr Anderson Chow, instructed by Department of Justice, for the Respondent
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