YIP KING SHUN v. COMMISSIONER OF POLICE

1995 No. MP 3883

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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THE FACTS

1. In 1989, the Applicant, Yip King Shun, applied to join the Royal Hong Kong Auxiliary Police Force ("the APF"). He was at the time a member of the Auxiliary Medical Service ("the AMS"). He did not disclose his membership of the AMS to the APF. He claims that it did not occur to him to do so. His application was successful, and since then he has spent a number of rewarding years as a constable in the APF.

2. However, the APF has a policy that it does not accept into membership anyone who is already a member of one of the other auxiliary services. Mr. Yip claims that he did not know that. In 1995, the APF discovered that Mr. Yip was a member of the AMS. That discovery prompted Superintendent Wong Ka Sing to investigate the matter. As a result of that investigation, he concluded that Mr. Yip had wilfully withheld material information when he had applied to join the APF, viz. his membership of the AMS, and he dismissed Mr. Yip from the APF. He did so by letter dated 5th July 1995. He purported to do so pursuant to section 9(3) of the Royal Hong Kong Auxiliary Police Force Ordinance (Cap. 233) ("the Ordinance"). That provides :

"Constables may be recruited, promoted or dismissed by the Commissioner [of Police]."

Superintendent Wong had purported to act under powers delegated to him by the Commissioner. Mr. Yip attempted to appeal against his dismissal to the Commissioner, but Assistant Commissioner Peter Chau declined to forward his appeal to the Commissioner. Mr. Yip was informed of that by letter dated 18th September 1995.

THE APPLICATION FOR JUDICIAL REVIEW

3. Mr. Yip applied for leave to apply for judicial review of the finding that he had wilfully withheld material information, of the decision to dismiss him from the APF, and of the decision not to forward his appeal to the Commissioner. He sought orders of certiorari to quash these decisions. I granted him leave to do so on 30th January 1996. The substantive hearing was due to take place today.

4. Broadly speaking, two arguments would have been deployed today by Mr. K. M. Chong for Mr. Yip. First, the power of dismissal under section 9(3) cannot be exercised unless a Board of Discipline has been convened under section 13 of the Ordinance, and the Board has found that the constable has committed one of the disciplinary offences in section 14 of the Ordinance. No such Board was convened in Mr. Yip's case, and in any event wilfully withholding material information is not one of the disciplinary offences in section 14. Secondly, even if the power of dismissal under section 9(3) was available in Mr. Yip's case, the rules of natural justice still apply, and they were not observed.

5. The Commissioner does not seek to uphold the decisions challenged. He concedes, through his counsel, Mr. Robert Whitehead, that the rules of natural justice were infringed in the decision-making process. He therefore accepts the second of Mr. Chong's two arguments. It is unnecessary for me to identify the particular infringements of the rules of natural justice. It is sufficient for me to state that I agree with the concession, which reflects a commendable degree of realism on the part of the Commissioner. I therefore make an order of certiorari quashing the finding of Superintendent Wong that Mr. Yip had wilfully withheld material information, and I make an order of certiorari quashing his decision to dismiss Mr. Yip from the APF. It is not necessary for me to make an order of certiorari to quash Assistant Commissioner Chau's refusal to forward Mr. Yip's appeal to the Commissioner, because that refusal lapses and is of no effect.

THE FUTURE

6. At one time, it looked as if that was not the end of the matter. It would still have been open to the APF to re-consider whether Mr. Yip should be dismissed from the APF. That would have raised the question as to whether the first of Mr. Chong's two arguments is correct. That issue, however, is now academic because Mr. Yip no longer wishes to be a member of the APF. I can say that I would have been prepared to decide the correctness of Mr. Chong's first argument in order to avoid future proceedings for judicial review, which would have been necessary if Mr. Yip had wished to remain a member of the APF, but was nevertheless dismissed from the APF pursuant to a regime which Mr. Chong contends is not applicable to him.

(Brian Keith)

Judge of the High Court