TU KIN YIP v. SECRETARY FOR JUSTICE

HCAL 1475/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1475 OF 2001

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J U D G M E N T

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Introduction

1. The applicant was a police constable of the Hong Kong Police, having joined the force in 1982. He fell into debts in June 1999. Disciplinary charges were brought against him arising from his indebtedness on 15 November 1999. At the end of the disciplinary hearing, the tribunal found him guilty of Charge I only and acquitted him of the other charges. Charge I was based on a contravention of PGO 6-01(8) and the Order reads:-

"A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment from whatever cause is regarded as a circumstance which impairs the efficiency of an officer" (emphasis supplied).

The particulars of Charge I of which the applicant was convicted read:-

"Police Constable 23567, TU Kin-yip, of the Hong Kong Police Force, you are charged that on 1999-09-09, in Hong Kong, you did fail to be prudent in your financial affairs by having debts of unmanageable size in the outstanding amount of about HK$1,207,608.00 which impaired your efficiency as a police officer, contrary to PGO 6-01(8)".

2. The wording of PGO 6-01(8) referred to in the judicial decisions relevant to this application is the same as that referred to above. The reason why this is mentioned is that there is in fact another version of PGO 6-01(8) which reads:-

"A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment stemming from financial imprudence which leads to the impairment of an officer's operational efficiency will result in disciplinary action".

This version was referred to in the "Notice of application for leave to apply for judicial review" (Form 86A). It was agreed by the parties at the hearing that the version referred to in the previous paragraph is the relevant one. Consequently, para. 15 of Form 86A was amended with the parties' consent to replace the last-quoted version of PGO 6-01(8) with the relevant version.

3. After the applicant has been found guilty of Charge I, sentencing was referred by the disciplinary tribunal to a Senior Police Officer. The Senior Police Officer awarded a sentence of dismissal from the force. The Force Disciplinary Officer confirmed the guilty finding but substituted the sentence with "Compulsory Retirement with Deferred Benefits". The last-mentioned decision was confirmed by the Commissioner of Police.

4. This application seeks to quash all the above decisions essentially on the following grounds:-

(a) the disciplinary tribunal's finding that the applicant was guilty of Charge I was erroneous in law;

(b) the said finding should be quashed because it was made unfairly, namely, the applicant was deprived of an opportunity to know (and therefore to meet) the real case upon which the conviction was based;

(c) the dismissal decision should be quashed because no reason was given for it;

(d) the "Compulsory Retirement" decision should be quashed because (1) no reason was given for it and (2) documents undisclosed to the applicant were shown to the decision-maker before the decision was made.

Leave to apply for judicial review out of time was granted on 24 July 2001.

Brief History of the Disciplinary Proceedings

5. By a "Notification of Defaulter Proceedings - Junior Officers" dated 15 November 1999, the applicant was informed that disciplinary charges would be laid against him. Copies of the charges were attached thereto and he was notified to appear before the tribunal on 25 November 1999.

6. On 25 November 1999, what can be described as a preliminary hearing where the tribunal explained the procedure of the hearing to the applicant took place. The applicant denied all the charges and the tribunal adjourned the hearing to 3 December 1999. On 1 December 1999, the applicant asked for and was granted an adjournment to 21 December 1999 on the ground that the applicant's defending officer was unavailable on 3 December. The hearing was further adjourned (on 18 December 1999) to 11 January 2000 due to the prosecutor's other duty commitments on 21 December.

7. The parts of the disciplinary hearing since 11 January 2000 relevant to Charge I can be summarized as follows. At the hearing on 25 January 2000, relevant documents were produced by the prosecution. Further, the applicant's Divisional Commander was called to give a statement before the tribunal. In the course of the Divisional Commander's verbal statement, he said:-

"No records of whatsoever [kind was shown] to indicate that [the applicant] had lent such a huge amount to his sister. I started to have doubts [as] to [the applicant's] honesty and integrity because of the following reasons:-

(a) [The applicant] had claimed that he had no interest in taking part in his sister's business, it is difficult to understand why he accompanys her business friends to casino; and

(b) He said that he was not a habitual gambler, but the frequency of his visits to Macau and the floating casino had discredited his statement.

According to the [Commissioner of Police's] Guidelines on Management of Indebtedness, it is the supervising officers to decide whether ... Officers with Unmanageable Debts ... [are] suitable to be posted to a sensitive post. On 1999-09-01, I therefore [suggested] to [District Commander] to ban him filling any post in the Divisional [Intelligence Liaison Service] and posts which require the handling of cash and property ... ".

8. The gist of this part of the verbal statement of the Divisional Commander can be found in his written statement dated 27 November 1999. The written statement was attached to a Memo dated 30 November 1999 to the applicant (nearly 2 months before the hearing on 25 January 2000) which reads:-

"I refer to your request, attached please find the following list of documents that might be of use to your defending purpose" (emphasis supplied).

The Divisional Commander could have been cross-examined on the propriety of his decision to restrict the applicant's posting but he was not. Defending officer however did cross-examine him on matters such as whether the applicant was restricted from posts requiring the drawing of arms and ammunition and whether other officers with unmanageable debts were similarly restricted in their posting.

9. When the hearing resumed on 1 February 2000, defending officer made a no case to answer submission based essentially on the unchallenged fact that the applicant's supervising officers reported that the applicant was performing his duties satisfactorily. The applicant elected not to give any verbal statement before the tribunal.

10. The next hearing took place on 23 February 2000 when defence witnesses were called. A defence witness who gave verbal statement before the tribunal on 2 March 2000 stated in short that the applicant was quite hard-working with an above average efficiency. The witness also stated that there was nothing unusual about the applicant's performance or emotion. Similar remarks were made by another defence witness on that day.

11. Final submissions were made on 11 March 2000. At the hearing on 28 April 2000, "Judgment" was pronounced by the tribunal. The applicant then indicated to the tribunal he did not wish to make a statement in mitigation. On 5 May 2000, the tribunal informed the parties that sentence would be referred to a Senior Police Officer. The applicant was also informed of his right of appeal at that time.

12. On 16 May 2000, the Senior Police Officer awarded a sentence of dismissal. On 19 October 2000, the sentence was replaced by compulsory retirement with deferred benefits. On 19 December 2000, the applicant was compulsorily retired.

Relevant Jurisprudence

13. The general legal principles relating to judicial review will be referred to in the paragraphs below as and when necessary.

14. In addition, there are several Hong Kong cases relating to applications for judicial review arising from disciplinary proceedings based on PGO 6-01(8):-

(a) Ng Kam Chuen v. Secretary for Justice [1999] 2 HKC 291;

(b) Leung Fuk Wah Oil v. Commissioner of Police, unreported, HCAL No. 371 of 2001.

Subsequent to the hearing of this application, counsel for the respondent kindly sent to me a copy of the Court of Appeal's judgment in Leung Fuk Wah Oil (unreported, CACV No. 2744 of 2001, 28 March 2002). The applicant informs the court he does not (a) object to the judgment being considered by, or (b) wish to further address, this court.

The Conviction by the Disciplinary Tribunal

(a) Was the Decision Erroneous in Law?

15. The decision is said to be erroneous in law in that the tribunal failed to correctly understand the true meaning of PGO 6-01(8). Consequently, the tribunal made a decision which is in short perverse in that it is against the weight of the evidence.

16. In essence, this part of the applicant's case is premised on the argument that the phrase "... the efficiency of the officer" in PGO 6-01(8) refers to the actual performance of the officer at work, for example, (since "serious pecuniary embarrassment" occurred) whether the officer's mental or physical condition, or work performance, or work relationship with other officers, has deteriorated. It has nothing to do with the officer's operational efficiency in the sense that his suitability for other postings, such as postings to jobs requiring the carrying of firearms, handling of cash or sensitive information, becomes limited.

17. In support of his argument, the applicant relies on the following passage in the Ng Kam Chuen case:-

"... In my judgment, a reasonable and purposive construction of the present charge based on PGO 6-01(8) is that the Force bears the ultimate legal burden of establishing both serious pecuniary embarrassment stemming from financial imprudence and consequent impairment of efficiency of the officer concerned, but that upon the demonstration of serious pecuniary embarrassment (in most instances, I should have thought, something which will be as plain as a pikestaff) the evidential burden then shifts to the accused officer to establish that his efficiency as an officer has not been impaired" (p. 296I-297D).

That was called a "two-pillar" approach, namely, an approach which requires a finding of "financial imprudence" as well as a finding of "impairment of efficiency".

18. As has been stated in para. 15 to 17 of the judgment in the Leung Fuk Wah Oil case (first instance), the court agreed with and followed the so-called "two-pillar" approach.

19. The Ng Kam Chuen case was concerned with an argument that the disciplinary tribunal erred in proceeding on the false premise that upon proof of the fact of "serious financial embarrassment", an irrebuttable presumption arose as to the impairment of the officer's efficiency as a police officer: see pp. 294B-C and 295A-D. The court in Ng Kam Chuen concluded that such approach contravened the true meaning of PGO 6-01(8).

20. In Leung Fuk Wah Oil (first instance), the officer's impairment of efficiency was founded on the officer's emotional problems, a lack of interest in his work and the need for constant supervision by his superiors: see para. 22, 26-27 and 31 of the judgment. The court in that case concluded that it was not for the court to usurp the function of the disciplinary tribunal and, further, there were materials to support the finding: see para. 24-26, 28 and 32-33 of the judgment.

21. The "Judgment" of the tribunal relating to Charge I was set out briefly by the tribunal:-

"PGO 6-01(8) was made for the purpose of proper administration and effective functioning of the police force. ... The 'two pillar approach' is adopted ...

The [applicant] had a total of $1,207,608 of outstanding debts ... [This] had proved [the applicant's] failure to be prudent in his financial affairs ...

PW2, [Divisional Commander] ... in his evidence had confirmed instruction had been given by the [District Commander] ... that [the applicant] was not suitable to fill any post in the Division [Intelligence Liaison Section] or posts which require the handling of cash and property, having considered the size of his debts, his integrity and honesty. Such restriction was not automatic nor 'a matter of course'.

The level of indebtedness ... had reasonably [caused] his [District Commander] and [Divisional Commander] to lose confidence in his ability to discharge full constabulary duties ... [The applicant's] supervisory officer, had considered [the applicant's] serious financial difficulty and that [the applicant] could be compromised and abused his position as a police officer, with serious consequences [and] ... accordingly put [the applicant] under close supervision ... " (emphasis supplied).

22. The tribunal's observation that PGO 6-01(8) "... was made for the purpose of proper administration and effective functioning of the police force" is supported by the Court of Appeal's judgment in Leung Fuk Wah Oil:-

"In considering the cross-appeal [of the officer who asked the Court of Appeal to quash the decision of the disciplinary tribunal] it is important to focus on the purpose of PGO 6-01(8). ... It is not in the form of a statute. Ordinary language is being used. ... it is clear from the wording that the mischief that this order wishes to confront is serious pecuniary embarrassment of [a police officer] due to ... financial imprudence ... This, however, does not ignore the relevance of impairment of efficiency ...

Serious pecuniary embarrassment is treated seriously because it is regarded as a circumstance which impairs efficiency. Imprudence is necessary in order to exclude financial problems due to unforeseen and compassionate circumstances which the Force Policy clearly recognized should be treated sympathetically.

The rationale for making this a disciplinary offence is discernable from various internal directives of the Police ... " (para. 78-80 of the judgment).

The Court of Appeal went on to recite an internal directive headed "Force Policy on the Management of Indebtedness" and a document headed "Instructions as to the Management of Indebtedness" and continued:-

"The Hong Kong Police, playing such a vital role in the enforcement of law and order in this territory, obviously, and rightly, requires the highest personal standards from its officers. This means that they must be prudent in their financial affairs so that they may not be in a situation of serious financial embarrassment" (para. 83 of the judgment).

23. The Court of Appeal dealt with what elements the prosecution needs to prove in a disciplinary proceeding based on PGO 6-01(8) under the heading "Proof of the offence" in its judgment in Leung Fuk Wah Oil. The relevant parts are:-

"Serious pecuniary embarrassment is proved, for example, by the police officer having unmanageable debts. Imprudence is proved by the circumstances in which these debts occurred. However, as serious pecuniary embarrassment is regarded as a circumstance impairing efficiency, it is not necessary to adduce further evidence on the impairment of efficiency.

... No useful purpose is served by the arguments that notwithstanding the financial problems of the police officer, he still may be discharging his duties efficiently ...

... In terms of the language used, [PGO 6-01(8)] clearly is not a provision dealing with the general efficiency of a police officer. Rather it is concerned with a specific offence that arises by reason of the acute financial problems of the police officer ... " (emphasis supplied) (para. 84-86 of the judgment).

The Court of Appeal said under the heading "Previous case" in Leung Fuk Wah Oil:-

"In [Ng Kam Chuen], the court construed PGO 6-01(8) as meaning a 'two-pillar' charge ... In so far as this means or is interpreted as meaning the prosecution is required to adduce evidence on both financial imprudence and impairment of efficiency, then we are unable to accede to this construction for the reasons we have indicated" (para. 89 of the judgment).

24. In view of the above passages in Leung Fuk Wah Oil, although the so-called "two-pillar" test has not been expressly rejected, the Court of Appeal must implicitly have done so. This is because (as quoted above) the Court of Appeal concluded that PGO 6-01(8) is:-

"not a provision dealing with the general efficiency of a police officer",

and:-

"[no] useful purpose is served by the arguments that [an officer] still may be discharging his duties efficiently ... ".

25. It is undisputed that the applicant's debts are unmanageable. There is however dispute as to what brought about the indebtedness. The applicant claimed in the disciplinary proceedings that the debts arose as follows. The applicant's sister and brother-in-law have been operating a business which ran at a loss since about 1994. The applicant borrowed money from banks and finance companies to help his sister. By June 1999, the debts totalled over $1.2 million. The explanation was in effect rejected by the tribunal when it supported the decision to restrict the applicant's posting.

26. At the time of the hearing of this application, counsel for the applicant still relied on the "two-pillar" approach and argued that since there was evidence before the tribunal that the applicant was still performing his duties (as a coxswain of a police launch) satisfactorily, the tribunal erred in law in finding that the applicant's efficiency as a police officer was impaired. In view of the test laid down by the Court of Appeal in Leung Fuk Wah Oil regarding how PGO 6-01(8) is to be applied (set out above), I do not find the approach advocated for by the applicant's argument to be correct any more. As is set out below, I do not find the tribunal to have erred in basing the conviction on the applicant's restricted posting. For this reason, the tribunal has not erred in convicting the applicant of Charge I.

27. Even if the "two-pillar" approach were correct, I would still have rejected the applicant's arguments for the following reasons. First, I find that, when PGO 6-01(8) refers to "the efficiency of an officer", that phrase is intended to include "efficiency" judged from the management point of view, particularly the officer's suitability for posting, and should not be limited merely to his actual work performance. A major reason for introducing PGO 6-01(8) is the need to ensure the highest personal standard of police officers in view of the risk of compromising their work. This is recognized by the Court of Appeal in Leung Fuk Wah Oil: para. 80-81 of the judgment. To restrict "efficiency" to mere consideration of work performance and ignore matters like the honesty and integrity of an officer would take away much (if not all) of the purpose for which PGO 6-01(8) was introduced.

28. It was the prosecution's case at the disciplinary hearing that the applicant's case was incredible, and his honesty and integrity was in point. His Divisional Commander expressly stated so at the hearing (see the part quoted above) as well as before it (in his written statement). Not only was the applicant found to have travelled frequently to Macau, he also frequented the casino vessel. He admitted going to gambling establishments but claimed that he only accompanied the customers or guests of his sister's business on those occasions. He admitted however he had no connection with his sister's business. There is no dispute there is no record to support the applicant's story, such as a loan agreement or bank records of transfer of funds to his sister's business. The applicant claimed he had a note book about the loans but it was misplaced. In these circumstances, I do not see any error in the tribunal's finding that the applicant's supervising officer reasonably imposed posting restriction against him. In fact, if it were necessary to do so, I would have agreed with the tribunal's finding because there was ample evidence to support it.

29. However, it is usually inappropriate in a judicial review for the court to conduct an examination of the minutiae of the materials given at a disciplinary hearing so as effectively to usurp the responsibility of the tribunal:-

(1) Yu Yau Tak v. Commissioner of Police and Anor. [2001] 2 HKC 627;

(2) Reid v. Secretary of State for Scotland [1999] 2 AC 512,

even less to act as a court of appeal:-

(1) Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155, 1173;

(2) Leung Fuk Wah Oil (first instance), para. 24 of the judgment;

(3) R v. ITC exp TSW Broadcasting Ltd. [1996] JR 185;

(4) Au-Yeung Kwok Hing v. The Attorney General for and on behalf of the Commissioner of Police, unrep., Civ. App. No. 205 of 1994;

(5) Kwok Wai-hung v. Commissioner of Police, unrep., Civ. App. No. 104 of 1996;

(6) So Chung v. Commissioner of Correctional Services, unrep., HCAL No. 2438 of 2000.

This is so with regard to disciplinary proceedings for disciplined forces:-

(1) Tong Poh Wah v. Hong Kong Society of Accountants [1998] 2 HKLRD 427;

(2) Leung Fuk Wah Oil, para. 25 of the judgment;

(3) Chan Kim Hung v. Commissioner of Police, unrep., HCAL No. 2400 of 2000.

I do not find any justification in this application for departing from the above approach.

30. Accordingly, the applicant's submission that the tribunal erred in finding that he suffered from "impaired efficiency" is rejected.

31. Further, by reason of the above matters, insofar as the applicant relies on his case that the indebtedness was not caused by his imprudence (but for good cause, as he alleged in his written statements (given in relation to the disciplinary proceedings)), the argument is also rejected.

(b) Was the Decision Made Unfairly?

32. The applicant contends that the real case against him, namely, his honesty and integrity was in doubt, was not disclosed to him (properly or at all) at the relevant time. This is firstly factually incorrect in view of the written and verbal statements given by his Divisional Commander at and before the disciplinary hearing (see the part quoted above). Secondly, if it were true that the prosecution had concealed the "real" case at the hearing, there would have been no case which the prosecution could advance against the applicant to support Charge I.

33. This contention has no substance.

The Decisions Relating to Sentence

34. It is accepted by the parties that although there were 2 decisions relating to sentence, that is, the one made by the Senior Police Officer and that of the Force Disciplinary Officer, the latter decision is the decision in issue in this application. In other words, if the applicant succeeds in his challenge against the latter decision, the earlier decision will have to be set aside. On the other hand, if he fails as regards the second decision, challenging the earlier one will serve no useful purpose.

(a) Reason for the Decision

35. The applicant complains that no reason was given by the Force Disciplinary Officer for imposing the "compulsory retirement" sentence. I agree with the respondent's submission that this is factually incorrect. There was a minute from the Force Disciplinary Officer dated 16 October 2000 which stated:-

"Turning to the award [of dismissal] ... I have reviewed the nature and circumstances of the offence. [The applicant] incurred a substantial amount of debts ... His [Divisional Commander] found the explanations ... difficult to believe and contradictory, considering the very high number of visits to Macau and the floating casino and his reason for visiting ... His duty was restricted ... No attempts were made to rebut these crucial issues during the proceedings.

The alarmingly large number of loans ... and having a comparatively costly car amid an already unmanageable financial situation point to his poor judgment and totally irresponsible manner in managing his finance. Together with the doubts over his honesty and integrity and the impairment of his efficiency, I have totally lost [confidence] on his suitability to continue to perform constabulary duties. A terminatory award is therefore necessary to properly reflect an offence of these circumstances and gravity. I have nevertheless taken cognizance of his otherwise unblemished discipline record, generally satisfactory performance and his family commitments ... ".

According to para. 19 of the applicant's affirmation dated 14 July 2001 (exhibiting the minute (and other documents) as "TKY-15"), this was read to him on 19 October 2000. There is dispute as to whether the applicant was aware of the whole content of the minute but there is no dispute that the document was given to his younger sister, Ms. Shirley Tu, on 16 March 2001. Ms. Tu and other family members of the applicant have been liaising with the Police on the applicant's behalf because of the applicant's health condition since his conviction by the tribunal.

36. This complaint has to be considered in the context of:-

(a) irrespective of whether his failure to do so was excusable, as a fact no appeal has been lodged by the applicant (such venue is open to him pursuant to r. 15, the Police (Discipline) Regulations, Cap. 232). There is no complaint in his evidence that he was prevented from lodging an appeal because of the alleged failure to give reasons for the sentence;

(b) the applicant indicated he did not wish to make any statement in mitigation before the tribunal.

In view of the above circumstances, I do not see what this complaint of the applicant is really about.

(b) Should the Documents be Disclosed to the Applicant?

37. In the said minute dated 16 October 2000, the reasons for the second decision were set out. In the written submissions of counsel for the applicant, the complaint against this is:-

"[The minute] and the reasons set out therein [were] never disclosed to [the applicant], either to enable him to make representation against them before or after the penalty was decided on ... " (emphasis supplied).

38. As stated above, the allegation of the minutes not having been known to him is factually incorrect (at least since 16 March 2001). In any event, before the sentence was determined by the Police Disciplinary Officer, the applicant has stated in the course of the disciplinary hearing in effect he did not wish to mitigate. He has not subsequently (and prior to the second decision) indicated he wished to do so.

39. Counsel's argument in the written submission that:-

"The denial of reasons was unfair to [the applicant] and could have inhibited his appeal" (emphasis supplied)

ignores the evidence filed by the applicant herein. His failure to appeal was attributed to his misunderstanding and health condition since his conviction by the tribunal.

40. In these circumstances, I fail to see what he is really complaining about under this heading.

41. When so concluding, I have borne in mind what the Court of Appeal said in Leung Fuk Wah Oil about the duty of disclosure of materials subsequently seen by the Commissioner of Police: para. 15-76, especially para. 33-41 and 75-76, of the judgment. The Court of Appeal also concluded that there should not be any pure technical breach of the doctrine of fairness. Because of the relevant circumstances (set out above), this in essence is what the applicant is arguing under this heading.

Alternative Appeal Procedure

42. The respondent also argues that because the applicant could have, but failed to, appeal against the tribunal's finding and the subsequent sentence, judicial review ought to be refused in any event. The applicant admits that he failed to lodge such an appeal but seeks to explain the failure.

43. Since I have been able to reach a conclusion in this application under the earlier headings, there is strictly no need to deal with this point.

44. There was at least an apparent difference in the facts set out in the affidavit evidence filed respectively by the parties regarding this point. Counsel however informed me that, if it was necessary for me to do so, the parties would leave it to me to make whatever findings of fact I consider appropriate without cross-examination.

45. If it were necessary to decide this issue, and even on the applicant's version of the facts, I agree with the respondent's argument that the applicant's explanation based on his misunderstanding and health condition falls short of providing an adequate reason as to why he failed to resort to the alternative appeal procedure open to him.

46. It is undisputed that the court has a discretion whether to allow judicial review to proceed when an alternative appeal procedure is available:-

(1) Stock Exchange of Hong Kong Ltd. v. Onshine Securities Ltd. [1994] 1 HKC 319;

(2) Harley Development Inc. and Anor. v. CIR [1996] 2 HKLR 147;

(3) Nam Pei Hong (Holding) Ltd. v. The Stock Exchange of Hong Kong Ltd. [1998] 2 HKLRD 910;

(4) Au Wing Lun William v. The Solicitors Disciplinary Tribunal and Anor., unrep., HCAL No. 1942 of 2001.

47. Taking the whole circumstance (set out above) into account, I would have exercised my discretion in the respondent's favour to refuse to grant any relief in this application if it were necessary to do so.

Conclusion

48. In short, the application is refused.

Costs Order Nisi

49. There will be a costs order nisi pursuant to RHC Ord. 42 r. 5B(6) that the costs of this application 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.