NG WAI SANG v. THE COMMISSIONER OF POLICE

1997 No. 79 (Civil)

IN THE HIGH COURT OF HONG KONG

COURT OF APPEAL

_________________

_______________

J U D G M E N T

_______________

Keith J. (giving the first judgment at the invitation of Liu J.A.):

INTRODUCTION

1. The Appellant joined the police force in 1981. In 1996, he was dismissed. He applied for leave to apply for judicial review of the various disciplinary decisions in his case. That application was refused. He now appeals against that refusal.

THE CHARGE

2. The disciplinary charge which the Appellant faced was that on 2nd June 1996 he had failed to be prudent in his financial affairs, in that he had incurred outstanding debts amounting to $540,757.00, which resulted in serious pecuniary embarrassment impairing his efficiency as a police officer.

3. The facts were that following the death of his father in 1984, the Appellant began to lead a lifestyle beyond his means. In particular, he spent more than he could afford on entertaining women. In 1990, he met the woman who eventually became his wife. She had expensive tastes, and the Appellant spent a lot of money on her. When they married in 1993, he spent about $200,000.00 on their wedding and on decorating his new quarters. He financed his profligate spending by acquiring more and more credit cards, and by obtaining loans from banks and other financial institutions. By the time matters came to a head in the summer of 1996, he was heavily in debt in respect of nine credit cards, and had outstanding loans from eight banks and financial institutions. As at 13th June 1996, he owed $540,757.00.

4. The police force actively encourages police officers with financial and other problems to come forward and seek help. Acting on that advice, the Appellant himself sought advice from the Staff Welfare Officer of the Security Wing to which he was then attached. He was referred to the Force Welfare Officer. It was on the advice of the Force Welfare Officer that he filed a bankruptcy petition in the High Court. In due course, a receiving order was made against him, and he was required to pay $8,000.00 a month into an account administered by the Official Receiver to be used to repay his creditors.

THE APPELLANT'S PLEA

5. The Appellant admitted these facts and pleaded guilty to the charge. The disciplinary tribunal accepted the Appellant's plea. That is the first decision challenged in these proceedings. Mr. Gerard McCoy S.C. for the Appellant contends that the Appellant's plea of guilty should not have been accepted because the Appellant had not incurred debts amounting to $540,757.00 by 2nd June 1996, i.e. by the date of the charge. According to the brief facts, it was only by 13th June 1996 that he had incurred debts in that amount. That argument, in my view, has no chance of succeeding at any substantive hearing. The brief facts disclosed that the Appellant had failed to be prudent in his financial affairs. The mere fact that the particulars of lack of prudence in the charge, namely the precise amount of his indebtedness, did not tally with the brief facts did not mean that his plea of guilty to failing to be prudent in his financial affairs could not be accepted.

6. Mr. McCoy also argues that the Appellant's plea of guilty should not have been accepted because there was no suggestion in the brief facts that the Appellant's efficiency as a police officer had been impaired. However, the size of his debts must have been a constant worry to the Appellant, and in my view it was open to the disciplinary tribunal to conclude that, although an impairment to his efficiency was not specifically referred to in the brief facts, nevertheless the stress of having to cope with his huge debts must have had some impact on his efficiency.

THE APPELLANT'S MITIGATON

7. The Appellant's mitigation amounted to an acceptance that he had been extremely foolish to allow his extravagant lifestyle to result in the accumulation of such an enormous debt. However, it was pointed out that the debts had not occurred as a result of any illegal activities or excessive gambling on the part of the Appellant, and that all his loans had come from entirely legitimate sources. In particular, it was noted that the Appellant had voluntarily sought advice about his debts, and that he had only petitioned for his bankruptcy because that was what he had been advised to do. At no time had he been advised by the welfare officers he had consulted that petitioning for bankruptcy might lead to disciplinary action, let alone his dismissal from the police force. If he was dismissed from the police force as a result of revealing his debts and acting responsibly by following the advice he had received to apply for bankruptcy, it was said that that would deter other officers in a similar position to him from taking the same course, and would be contrary to the Police Force Discipline Manual which stated that "punishments awarded must tend to be corrective rather than punitive".

THE INITIAL FINDING AND SENTENCE

8. In the light of his plea, the disciplinary tribunal found the Appellant guilty of the charge. His case was referred to a senior police officer to decide what the Appellant's sentence should be. The senior police officer confirmed the finding of guilt. That confirmation is the second decision challenged in these proceedings. But since the basis of that challenge is that the Appellant's plea of guilty should not have been accepted, and since that challenge cannot succeed, it follows that the challenge to the confirmation by the senior police officer of the finding of guilt cannot succeed either. In the event, the senior police officer decided that the Appellant should be dismissed from the police force, but that the dismissal should be suspended for 12 months. There is no challenge to that decision.

THE REVIEW

9. There is no right of appeal from the decision of the senior police officer. Instead, his decision is required to be automatically reviewed by the Force Discipline Officer. The senior police officer submitted his report to the Force Discipline Officer. On reviewing the case, the Force Discipline Officer confirmed the finding of guilt. That confirmation is the third decision challenged in these proceedings. To the extent that the basis of that challenge is that the Appellant's plea of guilty should not have been accepted, that challenge must also fail.

10. In addition, however, the Force Discipline Officer considered that the Appellant's immediate dismissal from the police force might be a more appropriate sentence. Accordingly, he gave the Appellant an opportunity to show cause why the sentence should not be increased to the Appellant's immediate dismissal. After receiving written representations from the Appellant, the Force Discipline Officer decided to vary the sentence to one of immediate dismissal. That is the fourth decision challenged in these proceedings.

11. Mr. McCoy argues that the Force Discipline Officer had no jurisdiction to make the third and fourth decisions. That is because reg. 14(5) of the Police (Discipline) Regulations provides that the review by the Force Discipline Officer must take place "within 14 days of the receipt by him" of the report of the senior police officer. The relevant dates are that the sentence of the senior police officer was imposed on 10th September 1996, the decision of the Force Discipline Officer to confirm the finding of guilt was communicated to the Appellant on 15th October 1996, and the decision of the Force Discipline Officer to vary the sentence to one of immediate dismissal was communicated to the Appellant on 24th October 1996. What there is no evidence about is the date when the Force Discipline Officer actually received the report from the senior police officer. For all I know, it may be that it was received only a few days before 15th October 1996, in which case the 14 days' time limit would have been complied with.

12. However, even if the 14 days' time limit had not been complied with, I do not think that the argument that the Force Discipline Officer would not have had jurisdiction to make the third and fourth decisions has any chance of succeeding at any substantive hearing. When an Ordinance lays down the time within which a power is to be exercised, it seldom identifies what will be the legal consequence of a failure to observe the time limit. The courts have therefore had to formulate their own criteria for determining whether the time limit is to be treated as mandatory, in which case a failure to observe the time limit will normally render invalid what has been done, or as directory, in which case the failure may be treated as an irregularity not affecting the validity of what has been done: see De Smith, Woolf & Jowell, "Judicial Review of Administrative Action", 5th ed., paras. 5-057, 5-058.

13. For my part, I have no doubt that the time limit in reg. 14(5) is directory only. The context is such that the failure to comply with the time limit is not of sufficient importance to render the Force Discipline Officer's decision unlawful. It will invariably be necessary to exceed the time limit when the Force Discipline Officer is thinking of increasing the sentence, and has by reason of reg. 14(6) to give the officer concerned an opportunity to show cause why the sentence should not be increased. But even if the time limit is to be regarded as mandatory, I discern no injustice of any significance at all to the Appellant in this case. I would therefore unhesitatingly have exercised my discretion to refuse to quash the third and fourth decisions on this ground.

THE APPEAL TO THE COMMISSIONER

14. The Appellant appealed against the sentence of immediate dismissal to the Commissioner of Police ("the Commissioner"). In support of his appeal, the Appellant adduced two testimonials from superior officers in addition to the mitigation on which he had earlier relied. Those testimonials confirmed "his unblemished record of not spectacular but nevertheless good, solid police work". The officers recommended the reinstatement of the original sentence of suspended dismissal in strong terms. The Commissioner dismissed the Appellant's appeal. That is the fifth and final decision challenged in these proceedings.

15. The lawfulness of that decision is challenged on four grounds. Two of them can be disposed of quickly, because in my view neither of them have any chance of success at any substantive hearing. First, it is said that the Commissioner wrongly refused to accord a personal hearing to the Appellant. However, reg. 15(3)(a) gives the Commissioner a discretion to permit an officer to appear before him in person to support his appeal, and since all the relevant materials were before the Commissioner in writing his decision not to permit the Appellant to appear before him personally cannot be characterised as Wednesbury unreasonable. Secondly, the memorandum notifying the Appellant of the dismissal of his appeal was dated 16th December 1996. It purported to dismiss him from the police force with effect from 14th December 1996. That was contrary to reg. 31, which provides that sentences take effect from the date of the communication of the sentence to the officer. I discern no injustice of any significance whatever to the Appellant by the attempt to backdate the sentence by two days. I would therefore unhesitatingly have exercised my discretion to refuse to quash the decision on this ground.

16. The two more substantial grounds on which the Commissioner's decision is challenged are these. First, unlike the Force Discipline Officer on the review, the Commissioner on the appeal did not give reasons for his decision. In my view, it is arguable that the Commissioner was obliged to do so. But that is not the principal reason why I think that the Commissioner's failure to give reasons makes it necessary for leave to apply for judicial review of his decision to be given. Without the Commissioner's reasons, I simply do not know how he arrived at the decision to dismiss the appeal. Why did he agree with the Force Discipline Officer that it was necessary for the sentence to be increased from suspended dismissal to the ultimate sanction of immediate dismissal? Why was it necessary to impose the ultimate sanction of immediate dismissal despite the strong recommendation of the Appellant's superior officers that the Appellant was an efficient and dedicated officer who should remain in the police force? And why was it necessary to dismiss the Appellant with immediate effect in the light of the fact that the Appellant ultimately found himself facing disciplinary action because he had sought advice as he was encouraged to do and had acted on the advice he was given? If the Commissioner chooses to file evidence and gives his reasons for dismissing the appeal, his process of reasoning will be apparent. But until he gives his reasons, I do not know what his process of reasoning actually was.

17. The second of the more substantial grounds on which the Commissioner's decision is challenged relates to the merits of the decision itself. It is accepted without reservation that the Appellant's offence was a serious one. The size of his debts, when seen against the background of his extravagant lifestyle and the very lengthy period over which his debts were incurred, make that inevitable. But it is said that the mitigation in his case was powerful - so powerful in fact that in the interests of other police officers who might find themselves in the Appellant's position, and in the interests of the police force as a whole, the decision to dismiss the Appellant was Wednesbury unreasonable, i.e. "so outrageous in its defiance of logic... that no sensible person who had applied his mind to the question to be decided could have arrived at it": Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at p.410G. In my view, subject to such reasons as the Commissioner chooses to give, it is arguable that the decision to dismiss the Appellant with immediate effect will on further consideration be found to have been Wednesbury unreasonable. I would therefore grant the Appellant leave to apply for judicial review of the decision of the Commissioner on this ground as well.

CONCLUSION

18. For these reasons, therefore, I would allow the appeal, and grant the Appellant leave to apply for judicial review, but only of the decision of the Commissioner dismissing his appeal from the decision of the Force Discipline Officer, and only on the limited grounds which I have identified.

Findlay J.:

19. I agree with the judgment of Keith J.

Liu J.A.:

20. I agree with the reasons given by my brother Keith J. for refusing to grant leave on matters other than the complaints for which leave is granted.

21. As for decisions for the application for judicial review of which leave is granted, I agree that on the information now placed before this court, the appellant's complaints are potentially arguable. Accordingly, I would also grant leave in respect to those decisions.