劉承聰 v. 香港警務署

HCAL270/2017

[2018] HKCFI 2825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 270 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant or counsel [          ] in open court;

1. Leave to apply for judicial review refused.

2. There be an order nisi that there be no order as to costs.

Observations for the Applicant:

1.   The applicant filed his original Form 86 (in Chinese) on 6 June 2017, seeking to challenge the putative respondent (“the Commissioner”)’s decision made on 16 March 2017 (“the 1^st Decision”).   In the original Form 86, he raises two proposed grounds of challenge:

(1)   The Commissioner committed an error of law in construing the term “criminal offence” under sections 37(4) and (5) of the Police Force Ordinance (Cap 232) (“PFO”) to include the traffic offences the applicant had been convicted of in making the 1^st Decision (“the Illegality Ground”).

(2)   The disciplinary awards recommended in the 1^st Decision, in particular the compulsory retirement with full retirement benefits award, were disproportionate given the minor traffic offences the applicant had been convicted of (“the Disproportionate Ground”).

2.   At the direction of the court, the Commissioner filed a written Initial Response (in Chinese) with supporting documents on 13 September 2017 opposing leave.

3.   On 20 December 2018, the applicant wrote to the court with a new Form 86 (in English) asking to amend the Form 86.  The court will refer to this new Form 86 as the Amended Form 86.  

4.   In the Amended Form 86, the applicant now seeks to raise four proposed grounds to challenge the 1^st Decision as well as a decision made by the Commissioner on 24 September 2018 (“the 2^nd Decision”), which effectively enforces the compulsory retirement award.  These four proposed grounds are:

(1)   The Illegality Ground;

(2)   The Disproportionate Ground;

(3)   That the compulsory retirement disciplinary award breached the applicant’s legitimate expectation that no compulsory retirement disciplinary sentence would be imposed on police officers who were convicted of traffic offences.  The alleged legitimate expectation is said to have arisen in that according to the records provided by the police to the applicant and the record from the Police Discipline Bulletin between 2010-2016, no such disciplinary award had been imposed in the past on officers convicted of traffic offences or even criminal offences such as criminal damage (“the Legitimate Expectation Ground”);

(4)   The Commissioner failed to give adequate reasons to explain to the applicant why he imposed the compulsory retirement penalty on the applicant instead of other forms of lesser punishment as provided under the PFO (“the Failure to Give Reasons Ground”).

5.   This court would consider all these grounds raised in the Amended Form 86 for the purpose of the leave application.

6.   In the court’s view, none of these proposed grounds of challenge are reasonably arguable with a realistic proposed of success.  The reasons are as follows.

7.   In relation to the Illegality Ground, as submitted by the Commissioner in his Initial Response, which the court accepts:

“(1)   申請人並沒有在誓詞中為理據一交待，三項交通罪行不屬於第37(4) 及 (5)條內的刑事罪行的說法的基礎。反之，第1章《釋義及通則條例》第3條，為「罪行」(‘offence’) 作出了以下定義：「包括任何刑事罪，和違反、觸犯、不遵守任何訂有罪則的法律條文」。

(2)   法律詞彙著作‘Words and Phrases Legally Defined, 4^th Edition’ 的編者對「刑事法律程序」(‘criminal proceedings’) 有以下的解釋：

‘Wherever a party aggrieved is suing for a penalty, where the proceeding can be treated as the suit of the party... the proceeding is a civil one, and the defendant is a competent witness. But when a proceeding is treated by a statue as imposing a penalty for an offence against the public, the amount of which penalty is to be meted by the justices according to the magnitude of the offence, there can be no doubt that the proceeding is a criminal one. Parker v Green (1862) 2 B & S 299 at 311, per Crompton J’.

(3)   沒有爭議的是，全部三項交通控罪都是申請人以傳票方式被控，各控罪分別經由裁判法院刑事法律程序處理，在申請人承認控罪後，法庭判斷有關控罪獲證實。因此，三項交通控罪都屬於第37(4) 及 (5) 條的範圍。控罪屬於交通控罪，與第37(4) 及 (5) 條是否適用，並無關係。

(4)   在這情況下，沒有法律理據去支持申請人提出對相關法例條文的詮釋。”

8.  In the premises, the court agrees that the term “criminal offence” in sections 37(4) and (5) of the PFO includes traffic offence.   It therefore rejects the Illegality Ground.

9.  In relation to the Disproportionate Ground, as summarized in the Initial Response, the objective documentary evidence submitted by the Commissioner shows that:

“…警務處紀律組 (Discipline Division) 在2016年11月擬備了一份名為「Staffing Note」(審議記錄)的文件，詳細列出考量第37(5)條的判罰的理據，包括控罪的案情、申請人沒有應邀作出陳述、單位指揮官的意見、過往的交通控罪及定罪記錄、過往的紀律記錄等因素，從而作出判罰的建議。此審議記錄在2016年12月2日送達給申請人，並邀請他在認收文件後十四天內作出回應陳述。”

10.   It is also pertinent to note that the Staffing Note at paragraph 10 expressly stated that the recommendations of the disciplinary awards made against the applicant were based on the following considerations:

“(1)   Upholding and complying with the laws are the basic requirements of a police officer. It is also a reasonable expectation of the public on a police officer;

(2)   The fine imposed by the Court on the conviction of Case Three (HKD$2,400) is much heavier than the penalties on the other two cases. It reflected a more serious nature and it should entail an appropriate award accordingly;

(3)   The officer has a disciplinary record of ‘Reprimand’ for his ‘Careless Driving’ happened in 2009. The officer failed to learn a lesson from this conviction, which indicated his lack of law-abiding mentality and his blatant disregard to the rule of laws;

(4)   The on-going disciplinary cases and criminal investigation cast doubt to the conduct, integrity and standard of discipline of the officer, although the cases are yet to be proven;

(5)   The officer joined the Force as a direct entry officer in 1998. Being an experienced officer in the rank of Senior Inspector of Police, the officer should be well aware that his conduct of discipline had significantly fallen short of the standards of behavior as expected by members of the public;

(6)   The repetitive traffic convictions of the officers has also brought the public service, in particular the force, into disrepute.”

11.   Further, again as pointed out in the Initial Response, the applicant’s then legal representatives had made reply submissions in relation to the Staffing Note.  Thereafter the Assistant Commissioner of Police, Personnel (ACP P) considered the Staff Note and the applicant’s responses and decided to confirm the recommendations of the disciplinary awards.  The ACP P’s deliberation has been recorded in the document entitled “ACP P’s Deliberation On SIP LAU’s Traffic Convictions” dated 15 March 2017 (“the Deliberation Note”).

12.   After considering all the various factors, including the traffic convictions past and current, the ACP P concluded that the applicant should not remain in the police force.  He explained the conclusion in the Deliberation Note as follows:

“Apart from these convictions, I have also taken his entire traffic record into consideration, and agree with Discipline Division that the officer’s repeated traffic contraventions is the aggravating factor in the instant case. The officer is a habitual traffic offender. His behabviour and driving manner had fallen short of the expected standard. It also vividly reflected that he blatantly disregarded the law and did not learn from his mistakes. This is absolutely unacceptable, in particular for an experienced and senior officer like Mr. LAU.”

13.   Thereafter, on 16 March 2017, the Commissioner submitted his recommendations to the Chief Executive for award of punishment in relation to the applicant together with the Deliberation Note.

14.   In the premises, the compulsory retirement recommendation made was based on the applicant’s convictions of the extant traffic offences considered in the context of a host of other background factors relating to the applicant.  In the court’s view, these are relevant factors that the Commissioner was entitled to take into account, and it cannot be said to be Wednesbury unreasonable for the Commissioner to come to the view that the applicant, being a senior police officer, had repeatedly and habitually committed numerous traffic offences and was plainly someone who “disregarded the law and did not learn from his mistakes”.   There is therefore no question that the punishment can be said to be so disproportionate to be Wednesbury unreasonable.

15.   The court therefore does not find this ground reasonably arguable.

16.   In relation to the Legitimate Expectation Ground, this is in substance the flip-side of the Disproportionate Ground.  Given that the court has rejected the Disproportionate Ground, it would similarly reject this ground.   

17.   In this respect, the court should also add that the mere fact that no similar disciplinary award was recommended in the past in various disciplinary cases where the concerned police officers were also convicted of traffic offences does not by itself give rise to the alleged legitimate expectation in law.  This is so as every disciplinary case must be considered in the particular circumstances of that case, which include the past record and background of the particular police officer subject to the disciplinary proceedings.   Hence, penalty imposed or not imposed in past cases cannot amount to any clear or unambiguous representations as to what penalty would or would not be imposed in other cases, in particular with different background and circumstances.   The Legitimate Expectation Ground cannot even get off the ground in principle in the first place.

18.   In relation the Failure to Give Reasons Ground, in light of the undisputed documentary evidence mentioned above, in particular the Staffing Note which the applicant and his legal representatives have a copy, it is clear to the court that adequate reasons for the Decisions had been given by the Commissioner.  There are no merits in this ground at all.

19.   For all these reasons, all the proposed grounds of challenge against the 1^st and 2^nd Decisions are without merits and not reasonably arguable with a realistic prospect of success.  Leave to apply for judicial review should be refused: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at paragraphs 14-17.

20.   The court will make an order nisi that there be no order as to costs in this leave application. See:  Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 at paragraph 17(1) – (6).

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1