NG SAI HING v. COMMISSIONER OF POLICE

 HCAL15/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 15 OF 2006

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J U D G M E N T

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1.  In this judicial review application, the applicant seeks to quash the following decisions of the Commissioner of Police:

(1) The decision made through the Senior Police Officer (“SPO”) on 25 September 2004 to award the applicant with dismissal;

(2) The decision made through the Force Discipline Officer (“FDO”) on 4 January 2005 to confirm the award of dismissal; and

(3) The decision made through the Deputy Commissioner of Police (Management) (“DCP(Man)”) on 7 November 2005 to dismiss the applicant’s appeal against the award of dismissal. 

2.  The application is premised on the single ground of procedural unfairness in that all the decision-makers had not given consideration to an award of termination of service that would not result in loss of pension.

The facts

3.  The applicant is 51 years old. He joined the Police Force as police constable in 1978. In 1989, he was promoted to Sergeant. 

4.  In 1997, the applicant was arrested by the ICAC for the offence of accepting an advantage.  He was subsequently charged and tried in the District Court together with a police inspector surnamed Lam (“Inspector Lam”).  In May 1998, they were acquitted of their respective charges.  The prosecution appealed to the Court of Appeal and then to the Court of Final Appeal on the admissibility of admissions made during the undercover operation.  The Court of Final Appeal allowed the appeal and remitted the case to the trial judge for reconsideration in accordance with the legal principles set out in its judgment.  In February 2001, the applicant was acquitted for a second time. 

5.  The applicant was interdicted from service as a result of the arrest and prosecution.  In December 2002, disciplinary proceedings were commenced against him. The applicant was charged with two disciplinary charges of contravention of police orders under Regulation 3(2)(e) of the Police (Discipline) Regulations.  This application is only concerned with Charge A.

6.  The particulars of Charge A state that between February 1993 and the middle of 1994, the applicant did associate with a male surnamed TSUI (“Tsui”), who is a triad personality with doubtful or undesirable reputation other than in the course of duty, contrary to PGO 6-02(2). (1993 version)

7.  The applicant pleaded not guilty to both charges.  The hearing took place on more than 50 days, commencing on 18 November 2004.  On 15 September 2004, the Adjudicating Officer (“AO”) found him guilty of Charge A and acquitted him of Charge B.  The AO took the view that he did not have sufficient power to make the award of punishment, having regard to the gravity of the case.  He referred the case to the SPO to make the award.

8.   On 27 September 2004, the SPO made an award of reduction in rank and an additional award of dismissal. The FDO confirmed the finding of guilt and the award on 4 January 2004.  

9.  The applicant appealed to the Commissioner of Police against the finding of guilt and the award.  Having been served with the staffing notes on his appeal, the applicant through solicitors made his “last word” representation on 21 October 2005.

10.  On 7 November 2005, the DCP(Man) dismissed the appeal.  The decision was communicated to the applicant by memo dated 15 November 2005.

11.  On 10 February 2006, the applicant filed the Form 86 herein, acting in person.  He was directed by the court to comply with the Practice Direction SL3 in respect of the Form 86A and the supporting affirmation and documentations.  He sought several extensions of time to comply with the direction.  He then appointed solicitors to act for him and an Amended Form 86A was filed on 26 May 2006.  The application for leave was set down for hearing on 30 June 2006 pursuant to Order 53 rule 3(3) of Rules of the High Court.  At the applicant’s request made through solicitors, the hearing was adjourned.  Subsequently on 19 July 2006, the applicant filed a Re-Amended Form 86A, which is in substitution of the Amended Form 86A.  Leave to apply for judicial review was granted on 18 July 2006.  The Notice of Motion was filed on 20 July 2006.

The ground for judicial review

12.  The Re-Amended Form 86A raises only one ground of challenge.  It is that the various decision-makers, in coming to the view that the applicant’s service was to be terminated, did not go on to consider whether it would be appropriate to make an award that would not result in loss of pension.  There is no dispute that under the Police (Discipline) Regulations, the SPO FDO and DCP(Man) have power to impose awards that would not result in loss of pension, such as compulsory retirement with deferred benefits or reduced benefits.  In the applicant’s submission, it is not a foregone conclusion that dismissal was the only award open to the decision-makers.  Relying on the cases of Ng Wai-sang v. Secretary for Justice [1998] 3 HKC 501 and Man Kwok Yin v. Commissioner of Correctional Services unreported HCAL100/1998 (Keith J 16.3.1999), the applicant submits that the failure to consider a lesser award amounts to a procedural unfairness such that the decisions should be quashed and the matter be remitted to the SPO for reconsideration.  

Ng Wai-sang v. Secretary for Justice

13.  In Ng Wai-sang v. Secretary for Justice, a police officer who pleaded guilty to failing to be prudent in his financial affairs was ordered by the adjudicating officer to be dismissed from the Police Force with a suspension for 12 months.  The FDO increased the punishment to immediate dismissal.  The Assistant Commissioner of Police dismissed his appeal.  The applicant’s judicial review against the Assistant Commissioner’s decision was dismissed.  On appeal, the Court of Appeal quashed the Assistant Commissioner’s decision, holding that while the Assistant Commissioner had clearly and fairly rejected the option of any sentence involving the applicant’s continued service, he had not considered any punishment that involved his removal from the Force without loss of pension. The Court of Appeal was of the view that procedural fairness required that such a sentence should have been considered.

14.  Mortimer VP, who gave the main judgment of the Court of Appeal, dealt with the issue as follows (at 596D-507D):

          “The issue before the Assistant Commissioner

The issue before the Assistant Commissioner concerned sentence. Chief Superintendent McCabe considered dismissal suspended for 12 months to be adequate. He gave relatively full reasons. The Force Discipline Officer disagreed and imposed dismissal without suspension. He gave brief reasons which I do not find it necessary to consider further because the Assistant Commissioner did not adopt them as his own.

Dismissal removes the applicant from the Police Force but also has the additional draconian effect of depriving him of all his pension rights earned during his service. Dismissal suspended for 12 months as originally imposed has the effect of allowing a defaulter 12 months probation which, if he completes satisfactorily, allows him to continue in service. It is easy to see (although not a matter for this Court) that such a sentence may not have been realistic here having regard to the extent of the applicant’s indebtedness but these were not the only options. If for reasons of personal deficiency rather than crime or dishonesty, it is necessary to remove a person from the Police Force, this can be done without the additional punishment of loss of pension rights. See for example Regulation 13(f) an order to resign forthwith without salary in lieu of notice; and (g) compulsory retirement with pension, gratuity or other allowances, without such benefits or with reduced benefits.

          Conclusion

Although the focus of the applicant’s appeal to the Assistant Commissioner and the testimonials which accompanied it was to avoid his removal from the Force, they raise two important issues:

(1)  That his financial problems were not related to gambling; and

(2)  During his service since February 1981, he had a good service record, had received many commendations, and was supported by testimonials to this effect.

The Assistant Commissioner’s reasons clearly and fairly reject the option of any sentence involving the applicant’s continued service. But, neither he nor the Force Discipline Officer considered any punishment which involved his removal from the Force but without loss of pension. In my view, fairness required that such an award should at least have been considered. It was one of the issues for consideration by the Assistant Commissioner on the appeal before him. The reasons, both of the Discipline Officer and the Assistant Commissioner, do not indicate that such a lesser sentence was ever considered. Procedural fairness requires in this case that such a sentence should have been considered.

It is important to state that this Court does not involve itself in the decision itself. Whether or not there are good reasons for rejecting some lesser punishment is not its concern. Our only concern is whether the decision-making process was fair. I am satisfied that it was not fair for the reasons I have endeavoured to state.”

15.  In agreeing with Mortimer VP, Nazareth VP added the following explanations:

“There is no difficulty in recognising the rationality of the decision to remove the applicant from the Force. But that step by way of increasing the punishment, brought the whole issue of punishment to the fore. More than that, the particular circumstances, i.e. the applicant’s good and efficient service over 17 years, and the unusually severe effect that removal from the Force of itself would have upon the applicant, cry out for consideration of the award of compulsory retirement. Such an award, unlike dismissal would not necessarily deprive the applicant of his pension, while yet enabling the whole or part of his pension to be withheld if that were considered and thought appropriate. A fortiori in those circumstances fairness required the Commissioner to consider that option. It is not possible in the circumstances here to infer that the Commissioner must have considered it. It follows then that the appeal must be allowed.”

16.  It is clear from these passages that the Court of Appeal’s conclusion that the Assistant Commissioner’s failure to consider punishment that involved removal from the Force but without loss of pension had rendered the decision-making process unfair, was predicated upon a consideration of the particular facts of the case, including the circumstances surrounding the disciplinary offence and the applicant’s personal circumstances.   

17.  I do not read the case as holding that the disciplinary authority, in deliberating on the award of punishment, must adopt a two-stage approach of: (1) Deciding whether a termination of service or removal from the Force is called for; and (2) Considering terminatory awards that would not result in loss of pension or benefits.  I also do not regard the case as authority for saying that in all cases, it would be procedurally unfair for the decision-maker not to consider punishments that would not result in loss of pensions or benefits.

18.  As pointed out by Lord Mustill in his oft-cited judgment on the notion of fairness in R. v. Secretary of State for the Home Department ex p Doody [1994] AC 531, 560, the principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects.

Man Kwok Yin  v. Commissioner of Correctional Services

19.  The Court of Appeal’s decision was referred to by Keith J in Man Kwok Yin  v. Commissioner of Correctional Services, supra.  In that case, the applicant applied for leave to judicially review the decision to dismiss him from the Correctional Services Department for breaching the Prison Rules.  In granting leave, Keith J (as he then was) considered that if the Commissioner had not considered the option of removing the applicant from his service without loss of pension, it is arguable that the decision to dismiss the applicant was flawed.  The outcome of the application is unknown as Mr Lau who appears for the applicant indicated that he had not been able to locate any decision on the substantive application. 

20.  There are two points to note about this case. The first is that the test for granting leave is potential arguability, which is a low threshold.  Second, the reference to Ng Wai Sang was to show the potential arguability of the ground of the application before Keith J, namely, there was unfairness in not considering the option of termination without loss of pension. As is expected in a leave application, there was no discussion on the application of Ng Wai Sang.  In my view, this case does not advance the case of the present applicant insofar as he is arguing that the decision-maker must adopt a two-stage approach and that failure to do so would result in the decision being vitiated on the grounds of procedural unfairness.

Martin Henry Heyes v. Chief Executive of HKSAR

21.  Mr Lee who appears for the respondent cites the more recent case of Martin Henry Heyes v. Chief Executive of HKSAR unreported HCAL1961/2001 (10.4.2002), in which Ng Wai-sang was considered.  In that case, the applicant sought a judicial review of the Chief Executive’s decision to order him to be compulsorily retired with deferred benefits.   One of the grounds argued by the applicant was that the dossier that went to the Chief Executive for his consideration of punishment had failed to specifically advise on the options open to him and to explain the meaning and intent of those options. It was said that this was a material omission, which vitiated the Chief Executive’s decision. 

22.  Hartmann J held that it could not be inferred from the failure to list the options in the dossier that the Chief Executive was ignorant of the options available to him.  Specifically, it was said that:

“Those tasked by the legislature with the conduct of administrative duties, including disciplinary duties, must be presumed to know the nature of those duties.  In this instance, therefore, it is, I believe, fundamental that the Chief Executive must be presumed to have been aware of the fact that the Regulations gave to him a broad discretion, a discretion to be exercised as he saw fit, having considered all the circumstances.  Accordingly, whether, in fact, in this instance he failed to consider the options is not (and cannot) be demonstrated by the fact that they were not listed for him in an advisory paper.”

23.  Hartmann J then referred to Ng Wai Sang and observed that it was a case in which the reasons given by the decision-maker made it clear that there had been a failure on his part to lawfully exercise his discretion. Referring to the judgment of Mortimer VP (as quoted above), he stated:

“Clearly, where it is demonstrated that a decision-maker has failed to take into account matters which he was obliged to take into account then the decision will be quashed as being unreasonable in its public law sense.” 

24.  It can be readily seen that Hartmann J regarded Ng Wai Sang as an instance of the decision-maker failing to consider all relevant matters that he was obliged to take into account in making his decision, rather than establishing a rule that in all cases, it would be a form of procedural unfairness if the decision-maker did not consider option of termination that did not involve loss of pension.

Summary of the legal position

25.  In my view, the legal position is simply this.  A person charged with disciplinary duties must consider all relevant matters when discharging his duties.  In the case of the AO, SPO, FDO and DCP(Man) (exercising the delegated authority of the Commissioner of Police), in deliberating on the punishment to be awarded to a defaulter, they are obliged to have regard to, among other matters, the relevant provisions under the Police (Discipline) Regulations, including the Schedule that sets out their respective powers of punishment.  However, there is no inflexible requirement that they must in their reasons list out all the punishment options under the Schedule or deal with each of the possible options so as to justify the award they made.   The authorities do not establish a principle of law that the decision-maker must first make up his mind as to whether a termination of the service is called for, and then go on to explore a lesser punishment that will not result in loss of pension and benefits.  Depending on the facts, there will be cases where fairness requires the decision-maker to give consideration to an award that does not result in loss of pensions and benefits.  That does not mean that in all cases of dismissal, it would be procedurally unfair if a decision-maker had not or was not shown to have considered terminatory award that did not involve loss of pensions or benefits.        

The facts underlying Charge A

26.  With these principles in mind, I turn to look at the facts of this case.  The relevant starting point is the circumstances surrounding Charge A. 

27.  The thrust of the prosecution case against the applicant rests upon the evidence of Tsui, which was accepted by the Appropriate Tribunal.  In his evidence, Tsui admitted to have been a triad member with a number of criminal convictions.  He had also been actively involved in various criminal activities.  The AO found he was a known triad personality in Eastern District, where the applicant was posted. 

28.  It was Tsui’s evidence that Inspector Lam introduced the applicant to him in February 1993.  He said that shortly after the introduction, he had told the applicant of his triad background and activities.  After the occasion of what was referred to in the disciplinary proceedings as the “Marble Road incident”, he and the applicant became close friends.  They addressed each other as “Brother”. They met frequently to have meals and drinks. They also frequented karaoke and travelled to the Mainland together. The applicant had also lent him money.   

29.  As to the Marble Road incident, it was a reference to an incident that happened in March 1993.  It was related to a plan to have the triads monopolizing the decoration work of a housing development in Siu Sai Wan. It was Tsui’s evidence that he had made payments to Inspector Lam in return for a share in the monopolization. When he later suspected he was excluded by Inspector Lam, he caused a group of Vietnamese males to go to the housing estate with a view to arousing disturbance and troubles.  However, the Vietnamese males were arrested shortly after they went there.  In the evening following the arrest, Tsui met Inspector Lam at Marble Road and expressed his dissatisfaction about the arrest.  The applicant later joined them.  He informed Tsui the Vietnamese males were detained at North Point Police Station.  He said he had gone to Chai Wan Police Station to “flip the book” (meaning to look at the entries in the record) and that was how he came to know where the arrestees were detained. In relation to this incident, the AO found that the applicant had acted as Tsui’s informer by divulging to him information he gathered in the course of his duty.

30.  Tsui also gave evidence that after this, he opened a decoration shop in the housing estate.  He did this on the applicant’s suggestion so as to give pressure to Inspector Lam to return the money Tsui had paid him.  Tsui said that the applicant had visited and “sat” in his shop. The shop was later burned down by another group of triads.   

Mitigations urged by the applicant

31.  The applicant through his defence representative raised the following mitigations:

(1) He had an unblemished record of service.  He would have been promoted to station sergeant but for his interdiction and the disciplinary proceedings.

(2) His association with Tsui was a result of his misguided loyalty to Inspector Lam.

(3) During the Marble Road incident, he was only trying to mediate between Tsui and Inspector Lam.

(4) His association with Tsui was passive in that he did not meet Tsui on his own initiative.

32.  In submissions, Mr Lau further pointed to the fact that the applicant had received many compliments, a Commanding Officer’s Commendation and favourable ratings for his work performance.

The decisions of the SPO, FDO and DCP(Man)

33.  In making the award, the SPO indicated he had considered the circumstances of the case, the applicant’s record of service and the mitigation put forward.  He went on to say:

“The Force expects a high standard of conduct and integrity from all its members and takes a very serious view towards officers associated with known criminals or triad personalities other than in the course of duty.  In this case, the defaulter has not only associated with a triad character but also assisted him by looking after his interest and getting information from police sources.”

The SPO considered the defaulter should be reprehensible for what he did and decided to award the punishments of reduction in rank and dismissal.   

34.  When confirming the award, the FDO gave the following reasons:

“The nature of the case was exceptionally serious. The defaulter associated with a triad personality for some time who was engaged in illegal activities.  There is evidence to suggest the defaulter was looking after this triad associate’s interest.  The defaulter’s not guilty plea showed his lack of remorse for his wrongdoing.  I have no confidence to allow the defaulter to remain as a police officer.  Taking into consideration the circumstances of the case and the defaulter’s service record, I agree with the awards meted out by the SPO.” 

35.  In his Notice of Appeal, the applicant raised the following points in connection with the appeal against the award:

(1) The SPO had failed to consider the background of Tsui and that he had his own interest to serve in testifying against the applicant.

(2) Tsui’s evidence was not corroborated and it was incredible.

(3) The SPO had failed to consider the current sentence guideline in that for the charge in question, the awards were either warning of dismissal or dismissal to be suspended.

(4) The SPO had failed to consider his unblemished record and he was about to be promoted to the rank of station sergeant. 

36.  Evidently, the first two points are not relevant to the issue of what should be the appropriate award.  As to the last two points, the staffing notes for the DCP(Man) pointed out, inter alia, that each case had to be considered on its own merits and that the punishment should be appropriate and adequate to reflect the seriousness and circumstances of the case, taking also into consideration the record of service and background of the defaulter. 

37.  The letter from the applicant’s solicitors in response to the staffing notes did not make any representation on the award of punishment.

38.   In dealing with the appeal against the award, the DCP(Man) noted that at the time of the commission of Charge A, the applicant had served for 15 years in the Force with 3 years as a sergeant. He further to stated as follows:

“He should be well aware of the serious consequences in associate[sic] with known triad not in the course of duty, let alone looking after the interest of a triad personality and passing police information.  It is very clear to me from [Tsui’s] evidence and the taped conversations that the Defaulter and [Tsui] were close friend: ‘dine’ and ‘wine’ together, singing karaoke together, travelling together and also knew each other’s family well.  Furthermore, it was sickening to see the freely use of profanity language by the Defaulter.  His conduct is totally unbecoming for a police officer. The boast of his enthusiasm in helping [Tsui] getting police information in the ‘Marble Road Incident’ called into serious question about his integrity.  There is no place in the Force for officer with such kind of poor conduct and integrity.

In deciding his appeal against the awards, I have taken into consideration the circumstances of the case, his length of service, his good records of service, clear disciplinary record and his mitigation. I cannot find sufficient merits for a lenient award. I therefore dismiss the appeal against the awards.”     

Is there procedural unfairness?

39.  It is correct for Mr Lau to say that the decision-makers had not in their deliberations set out the options they have under the Schedule to the Police (Discipline) Regulations.  Neither had they stated expressly that they had considered these options before making or confirming the award of dismissal.  However, these per se do not justifiably give rise to a conclusion that the decision-makers are not aware of their power under the Schedule.  They also do not justify the inference that the decision-makers had closed their minds to, thus failed to consider, the range of awards specified in the Schedule.  As Mr Lee submits, the decision-makers are entitled to approach the issue of appropriate award by looking at all the options in parallel.  I would further add that in most cases this would be a natural approach to adopt.

40.  Turning to the core complaint in this application: Is there procedural unfairness?  Critical to Mr Lau’s submission that there is procedural unfairness is his argument that it is not a foregone conclusion that dismissal was the only award open to the decision-makers, considering the applicant’s long and exemplary record of service.  It therefore follows that fairness requires the decision-makers to consider other options of removal from service that will not result in loss of pensions.        

41.  In my view, looking at the facts underlying Charge A and the mitigations put forward, it is not difficult at all to understand why the award of dismissal was made and confirmed by the decision-makers.  Mr Lau has sensibly not sought to argue that this was not a serious case of transgression of Force discipline. Indeed, the nature of the transgression and the particulars of the applicant’s association with Tsui take the case outside the considerations of lesser punishment that will not result in loss of pensions.  As said by Mortimer VP in Ng Wai Sang (at 506G): “If for reasons of personal deficiency rather than crime or dishonesty, it is necessary to remove a person from the Police Force, this can be done without the additional punishment of loss of pensions right.”     

42.  No doubt, as Mr Lee points out, one of the most serious aspects of the applicant’s conduct was the Marble Road incident.  Mr Lau, however, argues that the place of detention of the Vietnamese males was not a piece of classified or confidential information and one should not speculate on the risks that the disclosure to Tsui would entail.  He further submits that the evidence did not show the information was of any use to Tsui. It is suggested that the applicant was only trying to be helpful or to impress Tsui that he had been helpful. 

43.  In my view, none of these arguments serves to advance the applicant’s case.  As noted by all three decision-makers, the incident was an indication that the applicant was looking after the interest of Tsui, a known triad member.  Further as the DCP(Man) said, the incident calls into serious question his integrity as a police officer.  This is not a case of a mere association with a triad member.  On the contrary, the applicant had gone out of his way to look up the police record to ascertain the place of detention and then to volunteer the information to Tsui, whom he knew was directly responsible for the Vietnamese males’ arrests.  Whether he did it for a particular purpose or just to impress upon Tsui is completely beside the point.  If there were evidence to show the use Tsui put to the information and the disclosure had damaged the work of the Police Force, it would have added to the gravity of the transgression.  The absence of such evidence, however, cannot be a mitigating factor that justifies a lesser award.     

44.  Mr Lau also refers to other disciplinary cases involving the same offence that were reported in the Bulletin on Discipline Cases (“the Bulletin”).  The Bulletin contained selected cases of discipline of interest and was compiled for the purposes of updating the trends in disciplinary cases and the level of awards confirmed by the FDO.  It is common ground that the awards made in the reported cases are not binding on future cases.  The purpose of Mr Lau’s reference to the Bulletin is to show that for the offence in question, lesser punishments had been awarded so as to support his submission that punishment that does not result in loss of pensions is a realistic option open to the decision-makers in the applicant’s case.

45.  Several points have to be made on the relevance and use of the Bulletin.  First, it is not in dispute that it is within the decision-makers’ power under the Police (Discipline) Regulations to make award that will not result in loss of pension.  Second, What is an appropriate award must depend on the facts of each case.  Third, the Bulletin does not set out the full facts of the cases selected.  Fourth, while in some of the reported cases lesser punishments were imposed, there was one case in which a senior police constable was given a dismissal. In short, no useful use can be made of the Bulletin. It does not lend force to the argument that it was unfair for the decision-makers not to consider lesser punishments.

46.   The DCP(Man) took the view that notwithstanding the long and good record of the applicant’s service and his mitigations, there is no room for a lenient award.  That really sums up the matter.  It is a conclusion that he is fully entitled to draw.  Looking objectively at the circumstances of the present case, there is not much that he could usefully add to explain why an award of dismissal as opposed to other lesser punishments should be imposed.  The same can be said of the deliberations of the SPO and FDO.

Conclusion

47.  In conclusion, the applicant has failed to make out the ground of procedural unfairness relied upon for the application.  Accordingly, the application for judicial review is dismiss