TSANG HING SHING v. COMMISSIONER OF POLICE

HCAL 191/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 191 OF 2002

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J U D G M E N T

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Facts

1. The Applicant, a junior police officer, joined the Force in 1989. On 12 and 13 November 2000, and on 14 December 2000, the Applicant went to Macau without notifying his commander. On 1 March 2001, the Applicant petitioned for bankruptcy because of his serious financial difficulties. On 4 August 2001, he failed to turn up for duty, having miscalculated the days of leave that he had taken.

2. Because of all this, the Applicant was charged with 4 disciplinary offences. The first two (charges A and B) related to his visiting Macau without submitting a notification in writing to his formation commander, contrary to Headquarters Order No. 105 of 2000 Part I, and therefore a disciplinary offence under regulation 3(2)(e) of the Police (Discipline) Regulations (Cap. 232) ("the Regulations"). Charge C related to his failing to be prudent in his financial affairs by incurring unmanageable outstanding debts which resulted in a bankruptcy order that was made against him on 5 June 2001, and whereby his operational efficiency was said to be impaired, contrary to PGO 6-01(8), and thus a disciplinary offence under regulation 3(2)(e) of the Regulations. Charge D related to his absence from duty without leave or good cause, a disciplinary offence under regulation 3(2)(a) of the Regulations.

3. On 23 October 2001, the Applicant appeared before the "appropriate tribunal" comprising a superintendent. He pleaded guilty to all four charges. The superintendent found him guilty as charged. After hearing mitigation, the superintendent made awards in respect of charges A and B (reprimand) and charge D (reprimand and forfeiture of 4 hours and 20 minutes pay). Taking a serious view on charge C, the superintendent referred the award for charge C to a senior police officer (SPO).

4. The SPO, a district commander, made an award of "dismissal suspended for 12 months" for charge C. He also recommended a "warning for dismissal valid for two years" against the Applicant. The SPO also confirmed the findings as well as the awards in respect of the three other charges.

5. In accordance with the provisions in the Regulations, the matter came before the Force Discipline Officer (FDO). After considering the matter, the FDO confirmed the findings and the four awards (including the award for charge C made by the SPO). However, he thought that an additional terminatory award (compulsory retirement with deferred benefits) should be awarded on top of the four awards in respect of the four charges (taken together). The Applicant was asked to show cause as to why such an additional award should not be imposed, and after he had done so, another FDO concluded that such a terminatory award should be made. That was done on 8 March 2002.

6. In this application for judicial review, the Applicant seeks an order to quash the additional terminatory award, on the ground that the FDO did not have any power under the Regulations to make the additional award.

The Regulations

7. Part II of the Regulations deals with disciplinary offences relating to junior police officers. Regulation 4 defines "appropriate tribunal" as a superintendent "for the purposes of [Part II]". Regulations 11, 13 and 14 deal with punishment of junior police officers by an appropriate tribunal (superintendent) and the procedure thereafter. They read as follows:

"11. Proceedings after hearing

(1) The appropriate tribunal shall at the conclusion of the hearing announce its finding on the charges or shall reserve its finding. The finding shall be entered on the Defaulter Report and if the finding has been reserved the appropriate tribunal shall call the defaulter before it to announce its finding.

(2) If the defaulter has pleaded guilty or is found guilty he shall be asked if he wishes to make a statement on relevant matters which he desires to be taken into consideration, and any statement so made shall be recorded by the appropriate tribunal.

(3) If the defaulter has pleaded guilty or is found guilty, the appropriate tribunal shall then announce its award or shall reserve its award. The award shall be endorsed on the Defaulter Report and if the award has been reserved the appropriate tribunal shall call the defaulter before it to announce its award.

(4) If the defaulter has pleaded guilty or is found guilty and the appropriate tribunal considers that no punishment should be awarded it shall-

(a) endorse the Defaulter Report to that effect; and

(b) advise the defaulter personally of the endorsement. (L. N. 305 of 1982)

(5) (Repealed L. N. 305 of 1982)

(6) Where a defaulter pleads guilty or is found guilty and the appropriate tribunal considers that the punishment which it can award is insufficient, it shall not make an award but shall-

(a) endorse the Defaulter Report to that effect;

(b) send the Defaulter Report to a senior police officer;

(c) inform the defaulter of that action, and, subject to these regulations, the senior police officer may make an award which he shall communicate to the defaulter personally. (L. N. 305 of 1982)

...

13. Punishment of junior police officers

(1) Any junior police officer who is found guilty by an appropriate tribunal of any of the offences against discipline specified in regulation 3(2) may, subject to regulation 30, be awarded the following punishments- (L. N. 305 of 1982)

(a) caution;

(b) reprimand;

(c) severe reprimand;

(d) forfeiture of not more than one month's pay except in the case of absence without good cause when forfeiture of pay shall extend to cover the period of absence in addition to any other punishment awarded;

(e) reduction in rank;

(f) an order to resign forthwith without salary in lieu of notice; (L. N. 305 of 1982)

(g) compulsory retirement with pension, gratuity or other allowances, without such benefits or with reduced benefits; or (L. N. 305 of 1982)

(h) dismissal. (L. N. 305 of 1982)

(2) (Repealed L. N. 305 of 1982)

(3) Where the appropriate tribunal does not award any punishment and refers its findings to a senior police officer to make an award, the senior police officer may exercise all the powers of punishment conferred upon him by regulation 30. (L. N. 305 of 1982)

(3A) Where an appropriate tribunal refers its findings to a senior police officer under paragraph (3) he may, if he is of the opinion that the junior police officer does not deserve to be punished but that the proceedings disclose grounds for requiring the junior police officer to retire in the public interest, without further proceedings require him to retire in the public interest. (L. N. 305 of 1982)

(4) Notwithstanding this regulation, a junior police officer found guilty of any offence specified in regulation 3(2) and-

(a) dismissed from the police force by the Commissioner, the Force Discipline Officer or a senior police officer, shall, where appropriate, be reduced to the ranks before dismissal; or

(b) ordered by the Commissioner, the Force Discipline Officer or a senior police officer to resign forthwith from the police force, shall, if he fails to do so, be dismissed under paragraph (3)

14. Confirmation or variation of finding or award

(1) Within 14 days from the date of any finding or award made by an appropriate tribunal, a senior police officer shall-

(a) in respect of the finding-

(i) confirm the finding; or

(ii) vary the finding and substitute any finding which the appropriate tribunal could have made on the evidence adduced; or

(iii) subject to paragraph (3)(c), set aside the finding and order a rehearing of the case on the same or other charges by another appropriate tribunal;

(b) in respect of any award, where he confirms or varies the finding-

(i) if no punishment was awarded, award any punishment that he is empowered to award; or

(ii) confirm the award; or

(iii) remit the award; or

(iv) subject to paragraph (3)(a) and (b), substitute any other award that he is empowered to award;

(c) where the appropriate tribunal has sent the Defaulter Report to him because it considers the punishment which it can award is insufficient, make an award which he shall announce personally or communicate in writing to the defaulter.

(2) A senior police officer shall not act under paragraph (1) if he has originated or assisted in the investigation of the complaint leading to the proceedings.

(3) A senior police officer shall not-

(a) substitute for any award made by an appropriate tribunal any greater award without first calling on the defaulter to show cause why such award should not be increased; or

(b) substitute for a finding of not guilty a finding of guilty; or

(c) order a rehearing where the finding was one of not guilty.

(4) A senior police officer acting under this regulation shall announce personally or communicate in writing to the defaulter the action taken by him, and shall forward the Defaulter Report to the Force Discipline Officer.

(5) Within 14 days of the receipt by him of a Defaulter Report forwarded to him under paragraph (4) the Force Discipline Officer shall, except where a senior police officer has ordered a rehearing of the case under paragraph (1)(a)(iii)-

(a) in respect of the finding-

(i) confirm the finding; or

(ii) vary the finding and substitute any finding which the appropriate tribunal could have made on the evidence adduced; or

(iii) subject to paragraph (6)(c), set aside the finding and order a rehearing of the case on the same or other charges by another appropriate tribunal;

(b) in respect of any award, where he confirms or varies the finding-

(i) if no punishment was awarded, award any punishment that he is empowered to award; or

(ii) confirm the award; or

(iii) remit the award; or

(iv) subject to paragraph (6)(a) and (b), substitute any other award that the senior police officer is empowered to award.

(6) The Force Discipline Officer shall not-

(a) substitute for any award made any greater award without first calling on the defaulter to show cause why such award should not be increased; or

(b) substitute for a finding of not guilty a finding of guilty; or

(c) order a rehearing where the finding, as confirmed or varied, was one of not guilty.

(7) The Force Discipline Officer acting under this regulation shall announce personally or communicate in writing to the defaulter the action taken by him. (L.N. 305 of 1982)"

8. Regulation 15 deals with appeals by junior police officers from the FDO's finding, decision or punishment to the Commissioner.

9. Part IV of the Regulations contains miscellaneous provisions. Amongst other things, regulation 28 deals with the power to suspend punishment, whereas regulation 30 reads as follows:

" 30. Awards

The punishment that may be awarded by an inspector, a superintendent, a senior police officer, the Force Discipline Officer, the Commissioner and the Chief Executive respectively shall be those set out in the Schedule. (L.N. 305 of 1982; 76 of 1999 s. 3)"

10. The relevant part of the Schedule reads as follow:

" SCHEDULE
POWERS OF PUNISHMENT

Appropriate Tribunal or Authority (1)	|	Punishment that may be imposed upon
	|
	|	Junior Police Officers (2)

Inspector (Under	|	Written admonishment
Part IA only)	|

Superintendent	|	1.	(a) Caution;
	|		(b) Reprimand;
	|		(c) Severe reprimand; or
	|		(d) Forfeiture of not more than 7 days' pay except in
	|		the case of absence without good cause when
	|		forfeiture of pay shall extend to the period of
	|		absence in addition to any other punishment awarded.
	|	2.Suspend punishment under regulation 28
	|	3.Order for payment under regulation 29

Senior Police	|	1.	(a) Caution;
Officer and (in the	|		(b) Reprimand;
case of Junior	|		(c) Severe reprimand; or
Police officers only)	|		(d) Forfeiture of not more than 1 month's pay except
Force Discipline	|		in the case of absence without good cause when
Officer	|		forfeiture of pay shall extend to the period of
	|		absence in addition to any other punishment awarded;
	|		or
	|		(e) In the case of a station sergeant or sergeant,
	|		reduction in rank.
	|	2.Suspend punishment under regulation 28
	|	3.Order for payment under regulation 29
	|	4.In place of, or in addition to, any punishment
	|	awarded under paragraph 1 above-
	|		(a) dismissal, with, in the case of a station
	|		sergeant or sergeant, reduction to the ranks
	|		before dismissal;
	|		(b) an order to resign forthwith, without salary in
	|		lieu of notice; or
	|		(c) compulsory retirement with pension, gratuity or
	|		other allowances, without such benefits or with
	|		reduced benefits.
	|	(Note: In lieu of punishment retirement in the public
	|	interest may be required under regulation 13(3A))"

FDO's powers

11. It is clear from the above provisions, and indeed Mr Ismail - counsel acting for the Respondent - very fairly concedes, that under regulation 14(5)(b), a FDO has, in respect of any award made below, only the power to award punishment if no punishment was awarded below, or to confirm the award, or to remit the award, or to substitute any other award that the SDO is empowered to award (subject to regulation 14(6)(a) & (b)). If he chooses to confirm an award made below, the FDO has no power under regulation 14(5)(b) (or anywhere else) to impose an "additional" award in respect of the same charge, or in respect of the same charge in conjunction with other charges that the defaulter has been found guilty and punished of.

12. Of course, if he wishes to increase the punishment in respect of a particular charge, all that he need do is to substitute the award in question with another award that the SPO is empowered to award (subject to the provisions in regulation 14(6)(a) and (b)). In that situation, what he must not do is to confirm the award below first and then seek to impose an "additional" award in respect of the same charge.

13. More seriously, in no circumstances can a FDO, in my judgment, impose an award, or worse still, "an additional" award in respect of different charges on a global basis. He must deal with each charge, and the award for that charge, individually and separately. That does not mean that he cannot take into account the general circumstances relevant to the sentencing or punishment in respect of a particular charge in question. Where different charges are involved, such relevant circumstances for each charge may overlap. But he must focus his attention on a particular charge when he is considering the appropriate punishment. Of course, he must also avoid the pitfall of any double punishment.

14. Turning to the facts in the present case, in my judgment, and again Mr Ismail very fairly also concedes - the FDO has done what he has no power to do. The FDO firstly confirmed the four awards in respect of the four charges respectively. He then imposed an "additional terminatory award" (i.e. compulsory retirement with deferred benefits) on a global basis in respect of all four charges, on top of the four respective individual awards, against the Applicant. In doing so, he was doubly wrong. First, he had no power to make any additional award once he confirmed the award below in respect of a particular charge. Secondly, and in any event, he had no power to make an award on a global basis in respect of all four charges, whether as an additional award on top of the four separate individual awards or otherwise.

15. In the circumstances, the FDO's "additional terminatory award" (i.e. compulsory retirement with deferred benefits) is totally unsustainable.

What relief?

16. What should the court do? It should be remembered that the present application for judicial review taken out by the Applicant is only restricted to an attack on the FDO's so-called additional terminatory award. There is no challenge to the FDO's decision to confirm the four individual awards in respect of the four charges respectively. All that the Applicant asks this court to do is simply to quash the additional award, leaving the four individual awards (as confirmed by the FDO) undisturbed.

17. Mr Ismail disagrees. He argues that in deciding to confirm the four individual awards, the FDO proceeded on the wrong premise that he had the jurisdiction to make an additional terminatory award. If he had known that he had no power to make such an additional award, he might well not have decided to confirm the four awards. For instance, he might have considered it appropriate to increase the punishment in respect of charge C (the most serious charge), instead of confirming it - which undisputedly he had the power to do. Mr Ismail argues that disciplinary awards on civil servants and especially police officers, are not for the courts. The effect of quashing the FDO's decision to impose the terminatory award without also quashing his decision to confirm the four awards and remitting the matter to the FDO for a fresh decision would effectively mean that the Applicant is allowed to remain in the Force even though the FDO, who has been entrusted by the legislature in punishing him, is of the view that he should not be allowed to remain in the Force. Mr Ismail refers me to Au-yeung Kwok Hing v. The Attorney General Civil Appeal No. 205 of 1994 (7 February 1995) at pages 22-23 (per Nazareth VP) and Cheng Wai Kit v. Commissioner of Police HCMP 3208 of 1996 Sears J (24 April 1997) at pages 13-14, for his general proposition that punishment is not for the courts.

18. Essentially, Mr Ismail is arguing that judicial review being a discretionary remedy, the court must do what is fair and just in the circumstances in terms of granting relief. The Applicant, although he has been successful in demonstrating that something unlawful was done, must not be allowed to take undue advantage of the situation. One way of doing justice between the parties is to so formulate the remedy as to eliminate any injustice or unfairness to either party resulting from the court's disturbing the unlawful decision below. If necessary, the court can enlarge the scope of challenge, as it were, even against the wish of the Applicant himself. Thus for instance, on the facts of the present case, the court could and should consider disturbing the (unchallenged) decision of the FDO to confirm the four individual awards, in conjunction with the court's quashing of the FDO's so-called additional award, and remitting the whole matter to the FDO for a fresh decision in respect of the four charges. Some support for this argument, so Mr Ismail contends, can be found in the approach of the Court of Appeal in R v. Barnsley Metropolitan Borough Council, ex parte Hook [1976] 1 WLR 1052, 1058 (per Lord Denning MR), where the court emphasized the substance instead of the form of an application for judicial review.

What did the FDO say?

19. Mr Ismail's argument must be considered in the light of what the FDO actually said. Two FDOs were involved in the present case. The first one considered that it would be appropriate to impose the additional terminatory award. His reasons were set out in the Defaulter's File (M7). As a result, he required the Applicant to show cause as to why the additional award should not be imposed. The final decision to impose the additional award was made by another FDO after hearing the Applicant. He essentially adopted the reasoning of the first FDO. It is therefore necessary to review the reasons given by the first FDO. They can be found in paragraphs 3-5 in M7:

" 3. The awards for the individual charges are acceptable when they are considered separately. However, a thorough review of the brief facts and all the documentary evidence have prompted me to consider the need for an additional terminatory award.

4. The defaulter stated that, in April 2000, he allowed his wife to draw cash from his credit cards to buy stocks. At the end of April 2000, he found that cash amounted to $125,000 had been drawn from his six credit cards. He then realised that his wife had in fact lost $400,000 through gambling during their cruise at the beginning of the month. Between June and September 2000, he made nine personal loans amounted to $315,000 to repay his wife's debts. In November 2000, he bought a new car at $160,128 to facilitate his wife's grandmother-in-law to attend medical appointments despite he was already heavily indebted. He visited Macau in November and December 2000 without giving the necessary notifications claiming that he had simply forgotten to do so. When he petitioned the High Court for bankruptcy, his total debts had risen to $587,000. On 2001-08-03, i.e. two months after he was adjudged bankrupt, he and his wife went on the same cruise, which his wife lost $400,000 in April 2000, and, as a result, he failed to report on duty on 2001-08-04, alleging that he had miscalculated the approved leave period.

5. It is apparent that the defaulter has tried to put the blame on his wife for his serious financial problem. Although the proceedings have revealed no evidence of gambling on his part, I find his excuses either untenable or indicative of his very poor judgment and sense of responsibility. Drawing cash from credit cards involve the payment of service charges and very high interest rates. I find it difficult to believe that he allowed his wife to obtain cash to buy shares through this very expensive way. He then amassed a substantial amount of debts way beyond his means to repay. He bought a brand-new car and visited Macau despite his already very poor state of personal finance. The revisit to the cruise, which caused his serious financial problem, only two months after he had been adjudged bankrupt has cast serious doubt on his judgment and probity. His failure to submit notifications on his Macau visits and his absence from duty have also reflected very poorly on his sense of responsibility and professionalism. Taking all these factors into account, I have totally lost confidence on his suitability to continue to perform constabulary duties and, accordingly, his service in the Force should be terminated. In considering the level of the additional terminatory award, I have considered his guilty pleas, mitigation, and generally above average service record and find it appropriate to set it at the level of "Compulsory Retirement with Deferred Benefits"."

20. In my judgment, it is clear from the above extract that the FDO "totally lost confidence [in the Applicant's] suitability to continue to perform constabulary duties" and formed the view that "his service in the Force should be terminated" after taking into account all factors including those pertinent only to the other three charges (other than charge C - the most serious charge). So for instance, he took into account the Applicant's failure to notify his commander about his visits to Macau, and he also took into account his absence from duty. According to the FDO, they "reflected very poorly on his sense of responsibility and professionalism". Taking a global view of the matter, he therefore considered that the Applicant should no longer remain in the Force.

21. It is also essential to note that in paragraph 3, the FDO started off by saying that "the awards for the individual charges are acceptable when they are considered separately." Read in the context, this could only mean that if one restricted oneself to the facts that were relevant to each of these four charges separately, each of the four awards was acceptable.

Awards correctly confirmed

22. In my judgment, all this is fatal to Mr Ismail's very attractive argument for quashing the decision to confirm the four individual awards and remitting the matter to the FDO for a fresh decision. This can be illustrated by asking what should the FDO do, suppose the court were to follow Mr Ismail's suggestion. The answer must be that the FDO must take the four charges one by one, consider the facts that are relevant to each charge (those facts may or may not also be relevant to the other three charges) and consider whether the award is appropriate or not for that particular charge and deal with it accordingly. What he cannot and must not do is to take into account facts that are not relevant to that particular charge but are relevant to the other three charges, and let that affect his assessment of the appropriateness of the award regarding the particular charge in question. So for instance, in considering the award for charge C (financial imprudence), the Applicant's failure to notify his commander about his visits to Macau, or his absence from duty without leave, which were relevant to charges A and B, and D respectively, would not be relevant at all and must not be considered or taken into account by the FDO in considering whether the award of dismissal suspended for 12 months is the appropriate award or not. In other words, what the FDO cannot and must not do is to repeat what has been done in paragraphs 4 and 5 in the above extract.

23. Now if that is the case, is there a need to quash the FDO's decision to confirm the four awards and remit the matter to the FDO for consideration afresh? The answer must be no, given what has been said in paragraphs 3-5. For there, the FDO said in no uncertain terms, as analysed by me above, that viewed individually, the four awards were "acceptable". The FDO only thought it justified to impose an additional award (regardless of his jurisdictional basis to do so) because he went on to consider all the facts and all the charges on a global basis, something that a FDO considering the remitted case afresh would not be entitled to do.

24. In other words, I do not accept that Mr Ismail's argument (even if true) - that the FDO only confirmed the four awards on the false premise or assumption that he had power to make an additional award - is relevant to whether there is any need to quash the confirmation and remit the matter to the FDO for fresh consideration. Whether the FDO below proceeded on a wrong premise or not, he was, as analysed above, correct in confirming the four awards because viewed separately the four awards were indeed appropriate.

25. Thus analysed, I do not consider that the Applicant is seeking to obtain an unfair or undue advantage of the situation by simply seeking to challenge the FDO's additional award, and opposing the remitting of the whole matter to the FDO as is now sought by Mr Ismail. I do not consider that the decision to confirm the four awards was unsafe notwithstanding the FDO's wrong assumption that he had power to make an additional award on top.

Certiorari only

26. In my judgment, an order of certiorari simply to bring up and quash the decision of the FDO to impose an additional award of compulsory retirement with deferred benefits is fair, just and sufficient to deal with the situation; and I so order.

Did the SPO act ultra vires?

27. Having come to such a conclusion, I need not and am indeed reluctant to express any view on the very interesting argument raised by Mr Ismail regarding whether the SPO had the power to make the award of dismissal suspended for 12 months in respect of charge C. According to Mr Ismail, the SPO had neither the power to make a dismissal award nor the power to suspend the award. He bases his argument on the relevant wordings in the Schedule. Mr Kwok disagrees and advances arguments in support of his views. Indeed there is still pending a rather novel application before me (which I adjourned to be heard, if necessary, after my decision on the question of whether to remit the whole matter to the FDO for fresh consideration) by the Respondent to amend the Applicant's Form 86A by including a challenge to the SPO's decision to award dismissal suspended for 12 months as being ultra virus.

28. My decision on this interesting point is unnecessary. Given the way and the grounds based on which Mr Ismail argues the question of quashing the FDO's decision to confirm the four awards and remitting the matter to the FDO for fresh consideration, the lawfulness of the SPO's decision (which has been confirmed by the FDO) is not engaged. In other words, whether the SPO's decision was lawful or ultra virus, it does not affect Mr Ismail's argument or for that matter, my rejection of Mr Ismail's argument as set out above. (It should be remembered that Mr Ismail does not ask this court to disturb the FDO's decision to confirm the SPO's award for charge C on the ground that the SPO had no power to make the award in the first place; rather he bases his argument on fairness and so forth: supra. The application to amend relates to challenging the SPO's award, not the FDO's decision to confirm the former's award.)

29. In those circumstances, I decline counsel's rather tempting invitation to make observations (which would be obiter in any event given the above analysis) on the correctness of Mr Ismail's argument.

30. I dismiss the Respondent's application to amend the Applicant's Form 86A.

Costs

31. As regards costs, both sides agree that costs should follow the event. I therefore order that the costs of these proceedings (including the costs of the Respondent's application to amend the Applicant's Form 86A) be paid by the Respondent to the Applicant, such costs to be taxed if not agreed. I also order that the Applicant's own costs be taxed in accordance with the Legal Aid Regulations (Cap. 91).

32. Lastly, I would like to thank counsel for their very helpful and fair submissions (as well as concessions).