LAW KIN WAH v. COMMISSIONER OF POLICE

HCAL99/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 99 OF 2004

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J U D G M E N T

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1. This is an application for leave to apply for judicial review of the decisions of :

(1)   the Appropriate Tribunal (“AT”);

(2)   the Force Discipline Officer (“FDO”); and

(3)   the Deputy Commissioner of Police (Management) (“DCP Man”).

The aforesaid decisions were all made in the context of disciplinary proceedings under the Police (Discipline) Regulations (the “P(D)R”), Cap.232A, Laws of Hong Kong.

THE DISCIPLINARY PROCEEDINGS

2. The applicant was a serving police sergeant when he petitioned for bankruptcy.  A disciplinary inquiry was conducted into circumstances leading to his petition.  As a result of that inquiry, he was charged with two disciplinary charges under the P(D)R.

The AT decision

3. The applicant pleaded guilty to the charges but the AT considered the admitted evidence insufficient to support the charges.  Thus, the AT entered “not guilty” pleas for both charges for the applicant. 

4. After trial, the applicant was found guilty as charged.  The applicant was awarded with “severe reprimand” and, “compulsory retirement with deferred benefits” for Charge A; and “reprimand” for Charge B by the SPO.  

The FDO’s decision

5. The guilty findings and the awards of punishment were subsequently confirmed by the FDO.

The DCP MAN’s decision

6. The applicant appealed to the DCP Man by written petition.  Chief Inspector Discipline 2, Mr Lee Chi Wai caused a minute (“M.6”) to be written to the DCP Man accompanying the applicant’s written petition for the DCP Man’s determination of the appeal.  The DCP Man dismissed the appeal and confirmed the guilty findings and the awards of punishment.

THE APPLICATION FOR JUDICIAL REVIEW

7. The applicant advanced his application on the following four grounds, namely :

(1)	Whether the decision of the AT to find the applicant guilty of both disciplinary charges is unreasonably/irrationally made because the AT found the applicant guilty of both charges whilst previously finding that the evidence did not support the charges;
(2)	whether the decision of the FDO to confirm the awards of punishment for both charges is illegal and therefore void because the FDO failed to take into account the applicant’s mitigation;
(3)	whether the decision of the DCP Man to dismiss the applicant’s appeal against the award of “compulsory retirement with deferred benefits” is vitiated by procedural unfairness because of a failure to disclose timeously a document (M.6) designed to influence the DCP Man’s decision in order for the applicant to make a meaningful representation; and
(4)	whether the decision of the DCP Man to dismiss the applicant’s appeal against the award of “compulsory retirement with deferred benefits” is vitiated by an error of law because that decision was based on an error of fact.

8. The applicant is currently 39 years of age and is married with a 8-year-old daughter born with asthma.  He joined the Police Force in 1984 as a police constable and was promoted to a police sergeant in 1998. 

9. Between 1998 and 2001, the applicant obtained a number of loans from various financial institutions and credit card companies.  By 2 January 2002, when the applicant petitioned for his own bankruptcy, his debts amounted to about $700,000 due to some 19 creditors.  (This is the subject matter of Charge A.)  

10. Earlier on15 June 2001, the applicant gave a statement to a senior officer investigating his financial affairs and had failed to disclose his true financial situation relating to his indebtedness.  (This is the subject matter of Charge B.)

Ground 1 : The decision of the AT was unreasonable and irrational

11. The main submission of the applicant is that the AT should not find the applicant guilty of the two charges when previously it had expressed that the agreed facts would not be sufficient to support the two charges.  No submission has been made as to why eventually when the AT found the applicant guilty as charged, it was not supported by “the revised set of facts”.  The applicant’s submission would amount to saying that the AT was unreasonable and irrational in the original decision that the applicant should not be found guilty on the first set of agreed facts.  This would not be enough to set aside the convictions made by the AT eventually.

12. Further, as submitted by Mr Dennis Law, counsel for the respondent, the disciplinary proceedings before the AT, as chaired by SP Poon, actually lasted for four separate days, namely :

(1)   30 January 2003;

(2)   20 February 2003;

(3)   14 April 2003; and

(4)   19 May 2003.

13. On Day 2 the AT said he was not sure that the facts and exhibits would support the charges and therefore entered a plea of not guilty for the applicant despite of his guilty pleas.  

14. However, on Day 3 there were further documentary evidence and the AT ruled that there was a case to answer for both charges and he proceeded to hear the applicant’s oral evidence in his defence.  In fact on Day 3 there were additional exhibits (AE-1 to AE-11), being bundles of documents released by 11 financial institutions in respect of their respective dealings with the applicant.  These give rise to a clearer picture of various loans obtained by the applicant from various financial institutions together with certain repayment information. 

15. The AT eventually gave reasons for his findings of guilt on the two charges and the whole of the applicant’s submission, as stated hereinbefore, did not support the contention that these findings of guilt were unreasonable and/or irrational. 

16. I do not find there is any substance in the applicant’s submission here when he actually pleaded guilty to the charges and agreed to those facts as presented before the AT. 

Ground 2 : The decision of the FDO to confirm the awards of punishment was illegal

17. After the SPO had awarded the applicant with the awards of punishment, the awards were not confirmed unless the FDO acts under Regulation 14(5)(b) of the P(D)R to confirm the awards.  The applicant submitted that when the FDO deliberated on paper in a document entitled “M.5”, not a single word of any factors going to mitigate for the applicant was mentioned in M.5. 

18. The only reference to anything that the FDO had considered was made in the following terms :

“I have read the ROP and the related paper in this defaulter report against SGT 14110 LAW Kin-wah.”

19. In other words, the applicant’s main complaint is that the FDO did not, under the rules of fairness, balance the aggravating factors against the mitigation factors.

20. However, under M.4 when the defaulter report/file was sent to the Discipline Section, SI Wong staffed the findings and the awards for the FDO.  He also summarized the applicant’s background and mitigation for FDO’s consideration. 

21. In these proceedings, CIP Lee Chi Wai explained in paragraph 4 of his 1^st affirmation that the contents of the defaulter report contained two kinds of documents, namely :

(a)   documentary evidence for the disciplinary hearing; and

(b)   the documents created after the disciplinary hearing.

22. Part (a) would include DRF with summary written mitigation and a bundle of reference letters. 

23. Part (b) would include the SFO’s memo.  Paragraph 10 therein stated that :

“I have examined the mitigation you have submitted; I have also examined the memos and the letters submitted by a variety of senior officers on your behalf.  I have read your service record and note that you are reported to be an officer who performs well.  I also note that this is the first time that disciplinary action has been taken against you.”

24. Thus, I agree with the submission of counsel for the respondent that it is not necessary for the FDO expressly say in M.5 that he had considered the mitigating factors so long as he had read and considered them, which he clearly stated that he had.

25. Accordingly, the present case is different from the case of R. v. Manchester Metropolitan University, ex p. Nolan [1994] ELR 380, which is relied on by the applicant. 

26. The FDO was not dealing with the matter on making the awards de novo.  The terminatory award of compulsory retirement is a severe award with serious consequence.  The FDO explained in his decision as to why such punishment was required and hence emphasized on what he perceived to be aggravating factor.  In the end, he said :

“I have reservation to allow him to remain in the Force.”

27. In Tsui Ma Ching v. An Investigation Committee, HCAL20/2004, Chu J said at para.46 at page 18 :

“Generally speaking, it is important to bear in mind the supervisory role of the court in judicial review proceedings.  The court does not sit in the capacity of an appellate court.  Caution should therefore be exercised against using judicial review application as an appeal through the back door.  The authorities have established that the court will not interfere with a decision on punishment merely because it is harsh or severe.  It must be shown that the decision ‘is severe beyond any rational relationship to the seriousness of the offence and the situation of the offender’ : Au Yeung Kwok Hing v. The Attorney General (unreported) Civil Appeal no. 205 of 1994 per Bokhary JA (as he then was) at p.14 and per Nazareth VP (as he then was) at p.22; see also Wong Wai Tak v. The Secretary for Civil Service (unreported) HCAL 2335 of 2000 per Hartmann J at pp.14-15 and [2002] 3 HKC 1 per the Court of Appeal at 16R-17D, and Chu Ping Tak v. Commissioner of Police [2002] 3 HKLRD 679 at 695J-696F  

28. In a judicial review, the court essentially plays a supervisory role over the decision of the decision maker below.  It does not exercise an appellate role as such.  Unless the sentence or punishment is so out of proportion to the offence in question, as to be perverse or unduly oppressive, there is no ground for intervention : see Chu Ping Tak v. Commissioner of Police [2002] 3 HKLRD 679, 695J-696F, per Deputy Judge Cheung (as he then was). 

Ground 3 : The decision of the DCP Man to dismiss the applicant’s appeal against the terminatory award was faulted by procedural unfairness

29. The applicant contended that the respondent failed to disclose a document designed to influence the DCP Man’s decision when the applicant appealed by petition to the Commissioner of Police pursuant to Regulation 15 of the P(D)R.

30. In the course of forwarding the applicant’s appeal to the DCP Man, the staffing officer created the document entitled “M.6” which accompanied the defaulter file to be sent to the DCP Man.  M.6 summarised and analysed the applicant’s appeal to the DCP Man.  Thus the applicant submitted that it is a document liable to be disclosed, whether it is called an “administrative minute” or a “starting note”.  The applicant submitted that it is similar in nature to those documents which were undisclosed in the case of Chu Ping Tak v. Commissioner of Police [2002] 3 HKLRD 679 and Leung Fuk Wah v. Commissioner of Police [2002] 3 HKLRD 653.

31. The first two paragraphs of M.6 concerned with the summary made by CIP Lee Chi Wai as to what the applicant was charged with and the findings of guilt of the AT and the awards of the SPO.  These findings/awards were subsequent confirmed by the FDO.  The third paragraph summarised the written appeal of the applicant and his grounds of mitigation. 

32. The minute concluded by saying : “As the submission is very straightforward, it is considered that no staffing of this appeal is necessary and this case is now submitted for determination of the appeal.” 

33. I agree with the counsel for the respondent that M.6 is simply a covering minute for administrative purpose.  It is not a staffing note.  In the case of Leung Fuk Wah, at p.661, it was explained that a staffing notes would summarise and analyse the various points made and offer comments and recommendations for DCP’s consideration.  There was no comment and recommendation.

34. In the case of Leung Fuk Wah, it was decided that whether there was non-disclosure material, the test would be :

(a)	whether as a matter of fairness and natural justice, there was any document ought to have been disclosed to the applicant so as to afford the applicant an opportunity to respond to the document; and
(b)	whether the non-disclosure produced a substantial prejudice or a risk of prejudice to the applicant.

35. The applicant, in my view, has failed to show that either (a) or (b) or both has been satisfied.  In the end, I am of the view that even if M.6 had been disclosed to the applicant, it would not have affected the eventual decision of the DCP Man.  In Chan Kim Hung v. Commissioner of Police [2001] 3 HKC 33; Hartmann J at pp.38-39 states :

“In judicial review proceedings it has long been a fundamental principle that the court does not act as a general court of appeal; the court is concerned not so much with the wisdom of a decision but with the decision-making process.  As Lord Brightman said in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 (at page 1173) :

‘Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power... Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.’

In reviewing the decision-making process, the court will have due regard to the nature of the body entrusted with the process.  In the present case, the proceedings in question were internal police disciplinary proceedings, they were not criminal proceedings constrained as they are by formal rules of evidence.  Both the adjudicating officer and the Deputy Commissioner were police officers but there is no suggestion that either were obliged to be professionally qualified in the law.  As such, as I have said in an earlier judgment (So Chung v. Commissioner of Correctional Services,HCAL2438/2000, at page 16), the essential question for the Deputy Commissioner, in acting as an appellate authority, was whether he could be sure that, in his conduct of the defaulter hearing, the adjudicating officer had both procedurally and substantively acted fairly.”

Hartmann J further added that :

“It is not therefore the role of the court in exercising its supervisory jurisdiction to be drawn into a study of the minutiae of the evidence presented and the findings made.”

Ground 4 : Error of fact in respect of finding that there was unexplained disposal of loan

36. In the DCP Man’s deliberation on appeal, he endeavoured to calculate how much the applicant had borrowed and how much he said he had advanced to his sister and brother-in-law and came to the conclusion the applicant had lied about the purpose of his borrowing and the way he had disposed those amounts he borrowed.  No doubt if the DCP Man’s conclusion is correct in that the applicant had lied, his integrity was in doubt and he would not be suitable to remain in the Police Force.  At the stage of obtaining leave, certain calculations were put forward and certain documents were relied on.  At the hearing before me, the applicant conceded that in accordance with AE1 and AE5, the applicant had borrowed a total of $260,000 from Wing Hang Credit Ltd and Promise (HK) Co. Ltd. 

37. However, it was still submitted at the hearing before me that the DCP Man’s observation would still be contrary to the admitted revised facts which states :

(i)	in July/August 1998, the defaulter started to borrow $180,000 from a bank for his sister and brother-in-law;
(ii)	DCP commented that the applicant’s sister repaid $7,000 per month over a period of two years and should have cleared the debt;
(iii)	DCP wrongly assumed that the loan of $180,000 in August 1998 had been fully repaid; and
(iv)	DCP should not have used $696,500 as the basis for comparison as the outstanding amount.

38. The applicant conceded that he had borrowed a total of $260,000 from Wing Hang and Promise since July/August 1998.  When DCP Man said that repayment of $7,000 (monthly) for a period of two years, [i.e. about $168,000] substantial part of the $180,000 loan would have been cleared.  This statement is correct although the repayment is for a three years’ term.  This would leave a balance sum of $80,000 unexplained or unaccounted for.

39. DCP Man further observed that the applicant should have only been owed by his sister $320,000 , i.e. $180,000 + $120,000 + $20,000.  The total should be $500,000.  When DCP Man observed the applicant should have been owed by his sister $320,000 (out of $500,000), it is only a rough figure on the basis that the loan of $180,000 was substantially repaid.  Whilst there would be accrued interest included in the outstanding amount of $696,500, there was still a wide margin from $320,000.  It was therefore justified for the DCP to make such an observation under these circumstances.

40. The applicant further argues that in the same statement (exhibit E-4), he said he had borrowed for himself.  But the debts were loans of $25,000 from the Treasury in February 2001 and $10,000 from the Police Welfare Association and repayment of $2,250 per month was directly debited from his salary account.  These two loans were not included in the schedule of debts due to 19 creditors totaling $696,500 and therefore should not be mixed with the figures referred to by the DCP.  By reason of the foregoing, there was no error of facts or substantial error of facts by the DCP warranting intervention by the court.  The applicant has failed to show any material error of facts which would cause injustice to the applicant.  Even on the basis of total loans borrowed by the applicant over the years and not the total amount outstanding which would have included interest, the DCP’s comment that the applicant was less than frank with the way he disposed of the loan is not erroneous.

CONCLUSION

41. In the end I do not find there is any ground to interfere with the decision of the AT, FDO, DCP Man and this application is dismissed with costs to the respondent.  The applicant’s own costs be taxed according to the Legal Aid Regulations.