TONG PING CHUEN v. ATTORNEY GENERAL

Headnote

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JUDGMENT

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Cons, V.P., delivered the judgment of the Court:

1. This appeal, from a refusal of Barnett, J. on the 27th November, 1989 to make an order of judicial review, calls in question the authority of the Commissioner of Police to issue a "Warning for Dismissal". This is a formal document which, by virtue of Chapter 6-14 of Police General Orders,

"may be issued on behalf of the Commissioner of Police by officers of the rank of Chief Superintendent of Police and above".

According to paragraph 2 of the Chapter 6-14, the warning may be either

2. The effect of the Warning is contained in paragraph 3:

"..... An officer under a Warning for Dismissal (Specific) who is convicted of a similar disciplinary offence, committed during the validity period, will normally be dismissed.

Paragraph 4 provides in like manner for a General Warning, save that it refers to "any" disciplinary offence. Guidance given in Appendix H of the Force Discipline Manual confirms that

3. Police General Orders are made by the Commissioner by virtue of Section 46 of the police Force Ordinance, Chapter 232, which provides in Subsection (2) that

"Any orders made under this section shall be called 'police general orders' and shall not be inconsistent with this Ordinance or any regulations under section 45."

4. The police (Discipline) Regulations, which have been made under Section 45 of the Ordinance, provide, inter alia, for disciplinary offences by Regulation 3(2) and for the punishments that may be imposed on junior officers in Regulation 13(1). This latter regulation makes no mention of Warnings for Dismissal. The argument as to ultra vires taken below, and repeated before us, is that a Warning for Dismissal is in substance a punishment and, not being provided for in Regulation 13, is either inconsistent therewith or simply unauthorized.

5. The characteristics of punishment are said to be derived from two suggested consequences of the Warning. The first is that it may adversely affect the recipient's chances of receiving advancement or an increment in salary.

6. "Advancement" is a movement from police constable to senior constable, - (which in fact has already been made by the Applicant) -, open to a police constable who has completed 18 years of "satisfactory service" and received the recommendation of his formation commander that he is "an efficient constable": Chapter 5-03 of Police General Orders. The Discipline manual notes that a Warning for Dismissal will normally act as a bar to advancement so long as the Warning is unexpired, although the Manual emphasizes that that is only a guideline and may be waived in "exceptional circumstances": Appendix H. We need not pause to speculate on the nature of exceptional circumstances that may be sufficient to save an advancement. In ordinary circumstances it must inevitably follow, if a warning has in fact been given, that the constable in question has not given the necessary satisfactory service and thus would not in any event qualify. We do not see the Warning itself as having any further effect upon the situation.

7. So far as the submission is based upon the Warning affecting the salary of the recipient we think that it is misconceived. The Discipline Manual expressly provides that the Warning shall not be an automatic bar to the award of an increment which will normally be approved in the absence of an actual adverse report or recommendation: Police General Orders, Chapter 4-03.

8. The second characteristic of punishment relied upon is that at the time material to these proceedings the fact of the Warning was automatically published in police Headquarters Orders: Police General Orders, Chapter 6-14, Paragraph 11. The position now is different. We understand that following criticism by the judge below the need for paragraph 11 was re-considered and, no useful purpose being found for its existence, the paragraph has been deleted from the Orders.

9. We have been referred, as was the judge below, to an analysis of the characteristics of punishment drawn by McDonald, J.in R. v. T.R. (No. 2) 1984 7 D.L.R.(4th) 262, and in particular to a passage at p. 269:

"A third characteristic of "punishment" is that the penalty, like the conviction itself, carries with it a degree of stigmatization. This is inherent in the public nature of the adult criminal adjudicatory process."

10. This takes us little further, for the stigma referred to is attached to the conviction and sentence and not to the publicity, and there are consequences to conviction which carry a stigma and yet are not punishment, as the illustration immediately given by McDonald J. shows, namely a probation order.

11. It has to be accepted that the divide between a public Reprimand and a Public Warning may be narrow, but it nevertheless exists. The colleagues of a constable formally warned would, on reading Headquarters Orders, appreciate that his conduct had been found wanting in some respect by his superiors, but they would by the same token equally appreciate that his conduct did not merit punishment, or that if it did, he had already and separately been punished.

12. We are therefore not persuaded that a Warning for Dismissal is in substance a punishment or that the Commissioner is not entitled, as any other employer, to warn his men of the consequences to which their conduct may be leading.

13. He should, of course, be careful in the words he chooses. We add this with reference to the last paragraph of the Warning given in the present instance, which suggests that the recipient may be dismissed if during the period of the warning his conduct and duty performance give the Commissioner further cause for concern. That would appear to go too far, for the legislation to which we have been referred gives power of dismissal only upon the commission of a disciplinary offence. Counsel was able to point to no other authority for dismissal.

14. A second attack upon the Warning for Dismissal has been mounted by way of the rules of natural justice. It is suggested that before a Warning is issued the officer in question should be given the opportunity to persuade the Commissioner otherwise.

15. The judge below accepted as

"..... axiomatic now that if a person will be adversely affected by a decision of someone in authority, he should be informed of the case that it is proposed to make against him and afforded an opportunity of a fair hearing."

but found that the Warning in fact had no adverse effect, being rather for the benefit of the recipient, as putting him on notice as to where precisely he stood. That is true to some extent, but at the same time we note that the Commissioner himself accepts that a Warning "is clearly a serious matter in the career of a police officer": Annex H, Force Discipline Manual.

16. Be that as it may, the judge put the standard a little too high. The rules of natural justice do not prescribe an actual hearing in every instance. They prescribe that in the particular circumstances the person concerned shall be treated fairly.

17. In that respect we note that the various matters which gave rise to the issue of the Warning in the present instance are set out in detail in the memorandum by which it was made known to him. Thus it would seem that whenever a Warning is issued the officer in question is made fully aware of the reasons for its issue. He may not be able to question those reasons at the time, but should it be necessary to do so, i.e. should he be convicted of an offence committed during the continuance of the Warning, he will at that stage have the opportunity to put forward his case. We have already noted that dismissal is not automatic. The officer charged with making the decision will be bound to take all relevant matters into account, and the circumstances which gave rise to the earlier Warning will remain at large for his consideration. We take the Warning to be no more than a marker to draw those circumstances to his attention. We do not consider that this amounts to unfair treatment.

18. It finally remains to see whether there is anything particular to vitiate the Warning in the present instance. An allegation in the Notice of Appeal that its issue was an abuse of the Commissioner's power, in the sense in which that word is normally used, has not been pursued, but it is suggested, in reliance on "the Wednesbury principle", Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223, that it was an unreasonable exercise of his power.

19. For this purpose we do not find it necessary to go into the circumstances in minute detail. The original Warning was based on the Applicant's conduct following an ICAC investigation into the activities of an unlicensed moneylender. No disciplinary action was taken against him and it was therefore submitted, by reference to the word "generally" in subparagraph (b) of paragraph 2 of Police General Orders, Chapter 6-14, that the Warning fell between the two stools of subparagraphs (a) and (b). If so, the situation was put right by the Applicant's "appeal" to the Commissioner. We put the word in inverted commas because there is no specific provision for an appeal in the circumstance. However the Commissioner did accept the Applicant's submissions and cause them to be considered. The reply on his behalf contains these words:

"The Deputy Director Personnel gave your appeal careful consideration, however, he is satisfied that the WD(G) issued was under the circumstances of your case appropriate. In coming to this conclusion your conduct was viewed as generally unsatisfactory, not of the standard expected from a police officer.".

20. It was suggested that this reply was no more than an ex post facto attempt to justify the earlier irregular Warning. We see no reason to take that view. We take it as a genuine re-consideration of the Applicant's position, having regard to his general and overall conduct. We have been shown the complete record of his service. It has its good points, including recent commendations with regard to arrests of illegal immigrants on goods trains in the Lowu marshalling yards. But on the other hand the record contains many poor and some distinctly adverse reports, and we note that even at the time of the Warning he was still subject to special quarterly reporting. We cannot accept, in the light of that record, that it was unreasonable to conclude that his performance and conduct were generally unsatisfactory.

21. For these reasons we dismiss the appeal.