LEE KIN WAH v. THE COMMISSIONER OF POLICE

M.P. No. 1030 of 1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

__________

_______________

J U D G M E N T

_______________

1. This is an application for judicial review, leave to apply out of time having been given by Keith J. on the 26th of June 1995.

2. The Applicant was a police constable who in Police Discipline Proceedings was found guilty on the 8th of September 1994 of contravening Police Orders by gambling whilst on duty in a police station. On the 20th September 1994 an award of "Dismissal" was made against him by a Chief Superintendent and that award was confirmed by the Force Discipline Officer on the 20th October 1994. An appeal to the Commissioner was dismissed subsequently. There is no application to review the finding of guilt.

3. In applying for judicial review of the decision to dismiss him, the Applicant alleges that that decision was "Wednesbury unreasonable". Mr. Lee, who appears for the Applicant has relied partly in support of that ground upon two allegedly erroneous findings of fact. The first was that the tribunal wholly erred in concluding that the Applicant was involved in gambling in a one hour card game involving $170,000. That argument in my view is hopeless. There was overwhelming evidence before the Disciplinary Tribunal, both from the voluntary statements of the Applicant and from the evidence of another police officer, upon which the tribunal was entitled to find that the Applicant in police barracks in the Airport Police Station was gambling at cards with six other officers. Some of them were gambling on credit. Within the space of one hour the Applicant lost $4,000 cash. The biggest winner was PC58 who won between $170,000-180,000 in cash and credit.

4. PC51051 gave uncontested evidence at the Disciplinary Hearing that at the end of the gambling session he himself owed PC58 $60,000 even after he had paid him $1,000 cash.

5. Clearly, there was ample justification for taking the view that the Applicant was involved in the gambling session at which substantial sums of money were staked even if he himself only lost $4,000.

6. Mr. Lee fairly said that his point was really more a matter of perception than of pure fact.

7. The second finding alleged to be erroneous is that the Applicant was on duty at the time of the offence. The period of one hour during which the gambling took place was the Applicant's tea break, which was taken during his "C" shift duty which shift began at 2300 hours on 13th October 1994.

8. Mr. Lee submitted that if the Applicant was having a tea break he was not on duty at least in the sense of being in the execution of his duty. That fact, according to him, reduced rather than aggravated the gravity of the offence.

9. Clearly, however, if a police officer is permitted to go for refreshment during his duty shift he is regarded by the Commissioner as being on duty.

10. The main argument put forward to support the contention that the decision to dismiss was Wednesbury unreasonable is that the punishment was disproportionate to the offence, having regard to the Applicant's length of service and his clear disciplinary record.

11. It is important to bear in mind that this is not an appeal against the award. As the Court of Appeal said in Meng Ching Hai v. Attorney General [1991] HKLR 535 at p. 548

"... judicial review is concerned with reviewing the decision-making process and not the merits of the decision in question as if it were an appeal from that decision ..."

12. The Court of Appeal made it clear in that case at p. 543F, adopting the view of Lord Donaldson M.R., in The Queen v. the Secretary of State for the Home Department, ex parte Brind [1990] 1 All ER 469 that the principle of proportionality is inherent in the principle of reasonableness.

13. In an affidavit filed on the 12th September 1995 on behalf of the Commissioner, the Chief Inspector, Discipline in the Personnel Management Branch of the Royal Hong Kong Police Force says this :

"When considering the findings and award made in relation to the applicant, the following factors were taken into account:-

"(a) Gambling amongst police officers inside a police station, especially during the duty period, was a serious breach of discipline.

(b) Large amounts of bets were involved.

(c) The Applicant has declined to submit any statement in mitigation during the disciplinary proceedings. His conduct during the proceedings did not indicate any remorse.

(d) The Applicant's overall service record."

14. As to (a), the Force Discipline Officer was entitled to take that view which was evidently shared by the Commissioner who dismissed the appeal.

15. As to (b) there was ample evidence to justify it.

16. As to (c) the Applicant defended himself vigorously before the tribunal and made certain allegations against a senior officer. Mr. Lee during his submissions to this Court appeared to be suggesting, albeit not directly, that the fact that the Applicant had defended himself and the manner of his defence was taken in aggravation of his offence. There is no ground, however, for supposing that such was the case. It is clear that the Force Disciplinary Officer was looking for mitigation in the form of remorse and found none. The passages I have quoted merely indicate that in the circumstances it could not be said that any remorse, which would have been a factor in mitigation, had been demonstrated by the Applicant.

17. As to (d) it shows that the Applicant's service and the absence of previous disciplinary offences was taken into account.

18. Mr. Lee has spoken of the undoubted hardship which the Applicant will suffer as a result of the dismissal. It is inconceivable that any of the senior police officers concerned with this case could have failed to appreciate the severity of the penalty imposed.

19. I cannot find that there has been any failure to take relevant matters into account. Nor can I find that any matter was wrongly taken into account. The only question therefore, is whether in the circumstances the punishment was so harsh that the decision to impose it was Wednesbury unreasonable.

20. Sympathy does not come into the question. In Au Yeung Kwok Hing v. AG (CA No. 205 of 1994, unreported). Bokhary J. said:

"How this appeal might be determined if one were to proceed on the basis of sympathy for the appellant is irrelevant. Sympathy is not the test. Responsibility for discipline in the police rests with the Commissioner of Police. His duty is to the public. And so is the duty of the courts.

A disciplinary offence has been committed. The person responsible for discipline has imposed punishment. He has done so within the range of his sentencing options. And he has not made any procedural error. Still the courts are asked to intervene to reduce the punishment. But the courts are not exercising appellate jurisdiction. They are exercising jurisdiction by way of judicial review. All of that being so, the courts will only intervene if the punishment is severe beyond any rational relationship to the seriousness of the offence and the situation of the offender."

21. In the same case, Nazareth VP said this:

"It is helpful to have regard to some of the considerations which have led to the well-established nature of the court's limited supervisory jurisdiction in judicial review. It is to the Commissioner and his officers that the determination and punishment of disciplinary charges have been entrusted by the legislation, and not the courts. And in discharging that function, the former are entitled, and must be presumed to have been expected, if not required, to bring to bear their knowledge and experience of the requirements and operations of the Police Force; and likewise to assess awards in the light shed by the nature and circumstances of the misconduct upon the desirability and appropriateness of the offending officer remaining in the Force."

22. I respectfully adopt the remarks made in that case as being relevant to the present case.

23. Finally, though Mr. Lee has not proceeded with a point at one time raised concerning disparity of sentence, I would mention that of the 7 gambling officers, 6 have been dismissed and one has been made subject to an order of dismissal suspended for one year. That last one admitted his offence, cooperated with the authorities, showed remorse and gave evidence against the Applicant. It is hardly surprising in view of that mitigation that he was treated with a greater degree of mercy than was the Applicant and it appears to me that there is no question of disparity in this case.

24. I find myself unable to say that the punishment was severe beyond any rational relationship to the seriousness of the offence and the situation of the offender.

25. I find that there has been a failure on the part of the Applicant to show that there is any aspect of the decision making process which can be said to be Wednesbury unreasonable. Accordingly, the application for judicial review is dismissed.

26. The Respondent's costs of the application are to be taxed if not agreed and paid by the Applicant.