YEUNG CHUNG MING v. COMMISSIONER OF POLICE

HCAL 125/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 125 OF 2003

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J U D G M E N T

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I. Introduction

1.  Mr. Yeung, a police sergeant, was charged with criminal deception.  As a result he was “interdicted” from duty in accordance Police Force Ordinance (Cap.232) (PFO) s.17(1)(a).  This meant that he was barred by the Commissioner from active duty pending his trial.

2.  By PFO s.17(2)(a), where an officer has been interdicted on account of criminal proceedings against him, the Commissioner can direct that up to 50% of the officer’s salary should be withheld pending trial.  If the criminal proceedings result in an acquittal, the pay withheld is reimbursed to the officer.  Otherwise, under PFO s.37(4), if the officer is found guilty, no salary is payable without the Commissioner’s approval.

3.  On 20 November 2003, after considering representations from Mr. Yeung, the Commissioner (acting through his Director of Personnel & Training (DPT)) directed that 10% of Mr. Yeung’s monthly salary of about $27,850 be withheld under s.17(2)(a).  Upon further representation from Mr. Yeung, on 23 December 2003 the Commissioner (acting through his Deputy Commissioner (Management) (DCP Man)) revised the proportion of 10% to 7%.

4.  Mr. Yeung now challenges the Commissioner’s directions made under s.17(2)(a).  He argues that the policy whereby the Commissioner decides what proportion of salary to withhold under s.17(2)(a) is unfair and unreasonable.  He suggests that the operation of s.17(2)(a) in his case or (alternatively) the Commissioner’s policy implementing s.17(2)(a) contravenes art.11 of the Hong Kong Bill of Rights Ordinance (Cap.383) (HKBORO).  He says that in any event the Commissioner’s exercise of discretion in his case was flawed.  Mr. Yeung requests the Court to quash the Commissioner’s directions.

II. Background

5.  Before 2001, the Commissioner always allowed interdicted officers to receive full pay.

6.  This was because the Commissioner believed that curtailing salary was punitive.  He thought that it was wrong to punish an officer before conviction, since an officer was entitled to be presumed innocent until proven guilty.  Since an officer in carrying out his duties often faces frivolous or malicious charges, the Commissioner also considered that any deprivation of salary before a finding of guilt could adversely affect morale.

7.  The Commissioner’s pre-2001 policy was different from that followed in the civil service where withholding salary of persons facing criminal charges was and remains the norm.  In 2000 the Director of Audit pointed out the discrepancy between the practices of the civil service and the police force on withholding pay.

8.  Prompted by the Director of Audit and having taken legal advice, the Commissioner adopted new policy guidelines on withholding pay in May 2001.  This brought police practice on curtailing salary in line with that followed in the civil service.  The new policy was set out in a document entitled “Interdiction, Withholding of Increment and Pay -- Announcement of Policy Revision and Implementation” dated 30 May 2001. 

9.  The May 2001 document states that it remained police policy that an officer should not be interdicted unless absolutely necessary in the public interest.  Factors to be taken into account (including, for example, the gravity of the alleged misconduct) in a decision to interdict are listed in the document.

10.  On withholding payment, the May 2001 document states:-

“	10.	The Commissioner of Police is under a statutory duty to consider exercising his power in withholding a proportion of an interdicted officer’s pay in accordance with Section 17(2)(a) of the PFO.  In doing so, the appropriate authority stipulated in this policy will examine each case on its own merits, and will consider exceptions to the general policy guidelines.
	11.	An interdicted officer whose pay may be partially withheld will be allowed an opportunity to make representations in respect of all relevant considerations he wishes to be considered by the appropriate authority set out in this policy paper.
	....
	14.	Where an officer is interdicted under Section 17(1)(a) he will be invited to submit representation as to why a proportion of his pay should not be withheld.  He will be allowed 14 calendar days from receipt of the interdiction memorandum to make a written submission to Commissioner of Police (Attn: ACP P) through his Formation Commander on grounds of financial hardship and any other factors he wishes to be considered by the appropriate authority....
	15.	If no representations are received, the Commissioner will determine the level of pay to be withheld based on available information.  The officer will continue to receive full pay until the outcome of his submission is determined or a decision made by the Commissioner....”

11.  References to the “appropriate authority” in the document are to the DPT and DCP Man (among others), to whom the Commissioner delegated some of his functions under PFO s.17.

12.  The document sets out a detailed procedure for the making of representations by an officer as to why pay should not be withheld.  A review mechanism in relation to any decision to withhold salary is also described.

13.  An Annex C to the May 2001 document provides “Guidelines on Withholding of Pay”.  Annex C reads:-

“An officer who has been interdicted under section 17(1)(a) is entitled to be granted pay, not being less than one-half.  He will be invited to make representation in respect of any relevant factors he wishes to be considered by the appropriate authority.  When considering the level of pay to be withheld, the appropriate authority will consider all relevant factors to be taken into account supporting the withholding of pay, as well as those which militate against it or mitigate its amounts.  Such will include, but are not restricted to:-

(a)     the potential adverse reaction of the general public to the Police Force continuing to give officers fill pay whilst interdicted;

(b)     the risk to the public purse;

(c)     basic living expenses, e.g., food, rent, electricity, etc;

(d)     financial commitments incurred before interdiction, e.g. mortgage, insurance;

(e)     income tax;

(f)      children support;

(g)     alimony;

(h)     children’s education;

(i)      medical expenses;

(j)      staff morale; and

(k)     characteristics of the individuals, such as length of service, and disciplinary records etc.”

14.  On 27 January 2004 Mr. Yeung was convicted of 2 counts of fraud under Theft Ordinance (Cap.210) s.16A(1)(b) at the North Kowloon Magistracy.  He does not dispute that the police force is entitled to withhold salary from the date of his conviction.

III. Discussion

A. Mr. Yeung’s arguments

15.  Ms. Ng (appearing for Mr. Yeung) has 4 arguments against the withholding of Mr. Yeung’s pay.

16.  First, Ms. Ng questions the legality of applying PFO s.17(2)(a) to Mr. Yeung’s case.  She submits that, in exercising his power to withhold a fraction of Mr. Yeung’s salary prior to his conviction, the Commissioner was in effect treating Mr. Yeung as guilty before trial.  This (Ms. Ng says) is contrary to a person’s fundamental right under HKBORO art.11 “to be presumed innocent until proved guilty according to law”.

17.  Ms. Ng stresses that she does not challenge the legality of s.17(2)(a) as whole.  She accepts that there may conceivably be some situation where the withholding of salary before conviction on a criminal charge does not amount to a presumption of guilt before trial.  But (Ms. Ng acknowledges) she is hard-pressed to think what such situation may be. 

18.  Ms. Ng notes that, in a public hearing of LegCo’s Public Accounts Committee on 5 December 2000, the Commissioner suggested that the withholding of pay before a finding of guilt might be justified where an officer was caught “red-handed” or had shot a person in police custody. 

19.  But Ms. Ng doubts the validity of the Commissioner’s proposition.  Even a person caught “red-handed” is entitled to a presumption of innocence before trial.  Art.11(1) is categorical in its terms.  The presumption of innocence applies to “everyone charged”.  This must be the case since, not infrequently, what appears at first blush to be a flagrant criminal act has a plausible explanation which leads to complete acquittal.

20.  Nevertheless, it is unnecessary (Ms. Ng contends) for her to challenge the constitutionality of s.17(2)(a) as a whole.  She does not have to go so far.  If she is right that the operation of s.17(2)(a) in Mr. Yeung’s case is tantamount to anticipating a conviction, that would be enough to invalidate the Commissioner’s directions here.

21.  Second, Ms. Ng criticises the Commissioner’s current policy for s.17(2)(a).  She says that the policy has the following fatal defects:-

(1)     The policy does not state the factors which are to be taken into account in deciding whether an interdicted officer should have pay withheld.

(2)     The policy does not state what public interest has to be balanced against the officer’s right to receive pay.

(3)     The policy assumes that pay is to be docked if a person is interdicted under PFO s.17(1)(a), leaving open only the assessment of the appropriate proportion of withholding.

22.  If the policy is flawed, the Commissioner in following it could not (Ms. Ng submits) have rightly exercised his discretion under s.17(2)(a).  Further, if the underlying policy is bad, the withholding of pay must be punitive in nature and contrary to Mr. Yeung’s right under HKBORO art.11 not to be punished for an alleged criminal act until found guilty of the same.

23.  Third, Ms. Ng suggests that the Commissioner was pressured by the Director of Audit into changing his policy on the withholding of pay.  She says that the Commissioner “fettered” his discretion.  He failed to consider an appropriate policy “in light of the particular nature of the Police Force”.

24.  Fourth, Ms. Ng contends that, regardless of policy considerations, the withholding of pay was unfair and oppressive in Mr. Yeung’s case. 

25.  Ms. Ng points out that Mr. Yeung had previously been adjudged bankrupt.  Mr. Yeung’s financial circumstances were then found to be so straitened that the Official Receiver could only assess a $440 monthly contribution from him towards repayment of his debts.  In those circumstances, a 7% withholding of pay operates harshly.

26.  Ms. Ng contrasts the public benefit to be obtained.  The gain (she says) to the public purse from 7% of Mr. Yeung’s income would be minimal when contrasted against the great hardship to Mr. Yeung.  Ms. Ng suggests that the balancing act between the public and Mr. Yeung’s interests called for by s.17(2)(a), points inexorably towards allowing full pay pending the outcome of Mr. Yeung’s trial.  It was irrational for the Commissioner to have decided otherwise.

B.      Argument 1: PFO s.17(2)(a) and the presumption of innocence

27.  I think that Ms. Ng is right about the inappropriateness of applying s.17(2)(a) in Mr. Yeung’s case.  Curtailing pay in advance of a finding of guilt seems to me equivalent to presuming Mr. Yeung to be guilty before trial.  That would be contrary to art.11.

28.  Where a person is charged with a serious criminal offence, the law recognises that certain constraints may have to be imposed on the individual.  This is done for practical reason.  For example, an individual may be arrested and denied bail pending trial.  This is not done because the person is presumed guilty before trial.  It is done because the gravity of the alleged crime is such that a putative offender should be prevented from posing a potential risk to the well-being society or from fleeing the jurisdiction to avoid trial and frustrate justice.  The individual’s right to be presumed innocent pending trial is balanced by a utilitarian need to protect the public and ensure that justice takes its proper course.

29.  But this is a different situation.  I fail to perceive any utilitarian reason why Mr. Yeung’s pay should be docked pending trial.  Withholding pay will not protect the public from potential wrongdoing by Mr. Yeung pending trial.  Nor will it ensure that Mr. Yeung does not run away from Hong Kong to avoid trial. As far as I can see, the measure of curtailing pay in advance of a finding of guilt is solely punitive in effect.

30.  It has been suggested that the docking of pay is done for good economic reasons in the public interest.  Having been interdicted, Mr. Yeung is not a productive member of the police force.  Pending trial, he is not working and so cannot justifiably be paid an entire salary.

31.  I do not find this financial argument compelling.

32.  Mr. Yeung was taken off active duty against his wishes.  Mr. Yeung would have preferred to do some sort of work pending his trial.  But there was no suitable job open to him in the force, while his integrity was in doubt as a result of the criminal charges filed against him.

33.  Further, if an interdicted officer is found innocent, he is entitled to be reimbursed all salary withheld.  This demonstrates that entitlement to the curtailed proportion of salary hinges on a finding of guilt or innocence.  Pay is only being held back in the first instance, just because an officer is assumed to be guilty before his trial.

34.  It is sometimes suggested in favour of the power to hold back pay that it is consistent with public sentiment.  The public (it is thought) would be horrified if a public servant, charged with a serious offence and suspended from office pending trial, continued to be paid his entire wages.

35.  But I do not find such argument persuasive either.

36.  To the contrary, the argument of public sentiment betrays underlying prejudice.  The public is deemed to be shocked by any failure to curtail salary, because the public assumes that the servant involved was rightly charged and suspended.  To justify an exercise of the power under s.17(2)(a) on a public reaction of the nature described, would indeed be treating a person as guilty before trial.

37.  Both Ms. Ng and Mr. Cooney (appearing for the Commissioner) have cited cases where official acts were or were not considered to offend against the presumption of innocence.

38.  Allenet de Ribemont v. France (1995) 20 EHRR 557 (cited by Ms. Ng) concerned statements at a press conference.  There the French Interior Minister (FIM) mentioned that Ribemont had jointly taken out a bank loan with a person who was being investigated for the murder of a French MP.  In the FIM’s presence, the director of criminal investigation then said: “Mr. de Varga-Hirsh and his acolyte Mr. Allenet de Ribemont were the instigators of the murder...” 

39.  Ribemont was later arrested and charged with aiding and abetting the murder of the MP.  Upon acquittal, he sued the French Government for violating his right to be presumed innocent until proven guilty under art.6(2) of the European Convention on Human Rights (ECHR).

40.  The European Commission found that, in the circumstances, Ribemont “could legitimately have believed that he had been held up in public, by the highest authorities of the State, as a person guilty of complicity in murder”.  Accordingly, there had been a violation of art.6(2).

41.  Krause v. Switzerland (Application No.7986/77) (1978) 13 DR 73 (cited by Mr. Cooney) also involved a press interview.  There the Head of the Swiss Federal Department of Justice and Police (HFJP) said (in English translation) that:-

“Petra Krause cannot be considered simply as a Palestinian fighter for freedom.  She is a person who has committed common law offences -- offences in connection with explosives -- and she must accept responsibility for this.  In Autumn she will have to stand trial as a prisoner on remand.  One cannot fight against terrorism by releasing terrorists.”

42.  Krause complained that her right to be presumed innocent had been infringed.  The Commission held that:-

“Although the [HFJP’s] statement could have been worded more carefully ... in the circumstances it was to be understood as information by the Government as to the basis of the suspicion against the applicant and the announcement of the trial which would have to take place.  Therefore, the Commission finds that Article 6(2) has not been violated.”

43.  The general approach which I discern from the 2 cases is that, in deciding whether there has been a violation of HKBORO art.11, the Court first examines all relevant circumstances.  The Court then assesses whether the conduct or statements for which the Government is being criticised, imply a presumption of guilt before trial.

44.  Mr. Cooney says that the docking of pay does not so suggest that guilt is being assumed.  He refers to the case of Hentrich v. France (1994) 18 EHRR 440 in support.

45.  Hentrich examined the French Government’s right of pre-emption.  Mr. Cooney explained that, under the French law of pre-emption, where it is felt that a property is being under-valued for tax purposes, the State has the right to purchase the property from the taxpayer at the declared value plus a premium of 10%.

46.  The applicant argued that the right of pre-emption implied that he was engaged in tax fraud even though there was no trial finding to such effect.  He therefore alleged that pre-emption violated ECHR art.6(2).

47.  The European Commission said (at paras.90-91):-

“[I]n French law the existence of a tax fraud is not a precondition for the exercise of the right of pre-emption, still less proof of tax fraud or bad faith on the part of the person concerned.  [The Commission] notes that the courts looking into the merits held that exercise of the right of pre-emption does not require proof of tax fraud.

The Commission takes the view that the connection between the conditions for exercise of the right of pre-emption and the ultimate objective of that measure, that is the prevention of tax fraud, is not sufficiently close to warrant the conclusion that application of the measure concerned amounts to a finding of guilt and that the principle of the presumption of innocence guaranteed by Article 6(2) of the Convention has been infringed.”

48.  I do not find Hentrich helpful.  It concerns a special institution of French law and the conditions which trigger its exercise.  The case cannot be generalised beyond its facts.  It does not say that pre-emption of property (including choses in action such as a right to receive salary) can never amount to an infringement of the presumption of innocence.  All Hentrich says is that the Court must carefully look into the circumstances giving rise to the right of pre-emption.  Here, for the reasons which I have already given, I think that the curtailment of Mr. Yeung’s pay amounted to a presumption of his guilt.

49.  Like Ms. Ng, I have difficulty in thinking of a situation where the application of s.17(2)(a) would not imply guilt before trial.  If there is such a situation, it must be an exception, rather than the rule.  In my judgment, the power under s.17(2)(a) can seldom (if ever) be exercised consistently with art.11.

50.  Nevertheless, I accept Ms. Ng’s submission that it is unnecessary to treat s.17(2)(a) as contrary to art.11 in all cases. It is sufficient if I conclude (as I do) that it would be wrong in law for the Commissioner to exercise the power conferred by 17(2)(a) in this case.

51.  In light of my conclusion on Ms. Ng’s Argument 1, the Commissioner’s directions must be quashed.

52.  I note that Ms. Ng also referred to HKBORO art.10.  That concerns a person’s right to a fair hearing and equality before the Courts.  I do not believe that the provision is directly relevant to this case.  I doubt that art.10 meaningfully adds to the analysis of Mr. Yeung’s rights under art.11.

53.  My conclusion on Ms. Ng’s Argument 1 renders it unnecessary to determine her remaining 3 arguments.  But, in deference to counsel, I shall briefly sketch out why I believe that the remaining submissions lack merit.

C.      Argument 2: The current policy and alleged defects

54.  I do not think the May 2001 document is flawed as a policy document.

55.  Annex C succinctly, but clearly, sets out the key criteria to be taken into account when the Commissioner decides whether to exercise any power under s.17(2)(a).

56.  Further, on a fair reading, the May 2001 document does not suggest that pay is automatically to be withheld with the appropriate proportion of curtailment being the only outstanding question.  All the May 2001 document states is that the Commissioner has power to withhold up to 50% of pay.  But such power is only to be exercised after hearing representations on financial and any other matters which the officer concerned wishes to raise. 

57.  Subject to such representations, on the assumption that the power under s.17(2)(a) may lawfully be exercised, the Commissioner can decide to withhold none or some of the officer’s salary up to the statutory 50%.

D.      Argument 3: The Director of Audit and alleged fettering of discretion

58.  There is no evidence that the Commissioner was “pressured” into the new policy by the Director of Audit.

59.  It was the Director of Audit’s duty to point out the discrepancy between the practice in the civil service and the police force.  The Director urged the Commissioner to reconsider whether a blanket refusal to exercise the power under s.17(2)(a) was consistent with the Commissioner’s duties. 

60.  In light of the Director’s comments, the Commissioner rightly re-considered the pre-2001 policy.  He did not go about the task in blind haste, but consulted widely among the police force and others before reaching a conclusion.  The Commissioner also sought legal advice.  That advice, when received, was circulated and debated in the force.  It was not merely taken on its face. 

61.  I cannot see how the Commissioner can in any way be said to have “fettered” his discretion.

E.      Argument 4: Mr. Yeung’s circumstances and alleged minimal benefit to the public

62.  Subject to what I have said on Argument 1, I cannot say that the Commissioner acted unreasonably in Mr. Yeung’s specific case. 

63.  The Court decides rights and wrongs in accordance with the law.  A corollary to this is that a judge should refrain from venturing into matters of public policy.  The Court is ill-placed to decide whether a public benefit is or is not negligible.  The quantification and evaluation of public benefit is typically for the executive or the legislature.  More specifically, in this case, it is properly for the Commissioner to carry out any balancing exercise permissible under s.17(2)(a).

64.  In my view, the Commissioner carefully assessed Mr. Yeung’s circumstances.  Where satisfactory documentation was not provided in support of an expenditure claimed by Mr. Yeung (for example, school fees), the Commissioner did not mechanically reject the claim.  Instead, he investigated the extent to which the asserted expense was or was not reasonable.

IV.     Conclusion

65.  The directions to withhold part of Mr. Yeung’s salary pending trial are quashed as contrary to art.11.

66.  There will be an order nisi that the Commissioner pays Mr. Yeung’s costs, such costs to be taxed if not agreed.