TSANG HING SHING v. COMMISSIONER OF POLICE

CACV192/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 192 OF 2003

(ON APPEAL FROM HCAL NO.191 OF 2002)

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J U D G M E N T

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Hon Ma CJHC :

Introduction 

1. By a notice of application for leave to apply for judicial review dated 15 November 2002, the Applicant (a junior police officer, that is, a police officer below the rank of inspector) sought to quash the decision of the Force Discipline Officer (“the FDO”) made on 8 March 2002 whereby he was to be compulsorily retired with deferred benefits.  He also sought to quash the decision of the Commissioner of Police (“the Commissioner”) made on 15 August 2002 dismissing his appeal from the FDO.  The Applicant is the respondent in this appeal.  The Respondent (the Commissioner of Police) is the appellant.

2. The basis for the decisions challenged by the Applicant were four police disciplinary charges he faced : -

(1)	Charge A
	That between 12 and 13 November 2000, he visited Macau in his private capacity without submitting a notification in writing prior to or as soon as practicable after the visit to his superiors.
(2)	Charge B
	That on 14 December 2000, he visited Macau again in his private capacity without submitting a notification in writing prior to or as soon as practicable after his visit to his superiors.
(3)	Charge C
	That sometime before 5 June 2001, he failed to be prudent in his financial affairs by incurring unmanageable outstanding debts of about HK$587,032.74 which led to a bankruptcy order made against him on 5 June 2001 and whereby his operational efficiency was impaired.
(4)	Charge D
	That having been scheduled to be on duty between 0730 hours and 1615 hours on 4 August 2001 in Hong Kong, he was absent on duty between 0730 hours and 1150 hours on that day without leave or good cause.

3. Charges A, B and C involved alleged contraventions of Regulation 3(2)(e) of the Police (Discipline) Regulations, Cap.232 (“the Regulations”) while Charge D was an alleged contravention of Regulation 3(2)(a).

4. As will presently be seen, the most serious of these charges was Charge C.  On 1 March 2001, the Applicant petitioned for his own bankruptcy on the basis of debts amounting to $587,032.74 which he owed to various banks and financial institutions.  The Applicant said that this was the result of his having continually to lend money to his wife to pay off gambling debts.  His superior officers did not believe this to be the reason and lost confidence in him.  As seen above, Charges A and B related to visits he had made to Macau.  Charge D related to a period of absence on 4 August 2001 when he ought to have been on duty but instead was on board the “Star Pisces”, a gambling ship.

5. I shall in due course analyze more closely certain aspects of the disciplinary process contained in the Regulations as affect junior police officers.  For the time being, I wish just to set out the various steps that the Applicant went through in the course of the disciplinary proceedings against him and the various decisions that were made.

6. There are under the Regulations, three stages of the disciplinary process that a junior police officer, who is charged with a disciplinary offence (he is known under the Regulations as a defaulter), has to undergo : - (1) proceedings before an officer known as an “appropriate tribunal” (“AT”), (2) a review before a “senior police officer” (“SPO”) and (3) a further review before the FDO.  See here : - Regulations 4-13 (proceedings before an AT) and 14 (reviews before a SPO and the FDO).  If, following these three stages, a defaulter wishes to appeal, he may do so by petition to the Commissioner (who is defined under section 3 of the Police Force Ordinance, Cap.232 as the Commissioner of Police himself or a deputy commissioner) : - see Regulation 15.

7. In the present case, the Applicant went through all three disciplinary stages and also lodged an appeal to the Commissioner of Police : -

(1)     On 23 October 2001, the Applicant appeared before an AT (a superintendent).  He pleaded guilty to all four charges and agreed the brief facts that had been prepared (containing in part those matters referred to in paragraph 4 above).  Following a finding that all four charges were proved and a written mitigation prepared by the Applicant’s representative, the AT said he took a serious view of the charges and of the Applicant’s attitude at the hearing.  He found that the Applicant had disregarded the Police Force’s advice and warnings on incurring debts.  This was exemplified by his indiscriminate borrowings from financial institutions in order to pay off his wife’s debts.  He could not repay his debts and this led eventually to his bankruptcy.  Even when he was in debt, he still purchased a private car.  This led to his superiors losing confidence in his overall integrity.  Accordingly, the AT took a particularly serious view of Charge C and referred this charge to a SPO for the appropriate punishment to be imposed.  On Charges A and B, the AT imposed a reprimand; on Charge D, he imposed a reprimand and forfeiture of 4 hours and 20 minutes’ pay.  Under the Regulations, punishments imposed are known as “awards”.

(2)     The second stage of the disciplinary process was a review of the AT’s findings and awards by a SPO (defined in Regulation 2 as a chief superintendent, assistant commissioner or senior assistant commissioner).  On 1 November 2001, the Applicant appeared before a chief superintendent.  The SPO took an extremely serious view of the Applicant’s conduct and also said that he had “lost his credibility with the Force as a police officer”.  He added “There is a rising trend where officers are deploying similar tactics of using bankruptcy to clear all their debts.  This highly irresponsible attitude has to be stopped and a strong signal has to be sent to all Force members.”  The SPO confirmed the awards for Charges A, B and D.  For Charge C (which had been referred to him by the AT) he awarded (that is, imposed) the punishment of dismissal suspended for 12 months.  He was also given a “Warning for Dismissal” valid for 2 years (although this was not part of the punishment as such).

(3)     The third stage was the review before the FDO and it is this decision made by him that forms the subject matter of the present application for judicial review.  It appears that the review was conducted on paper.  By a Memorandum dated 27 February 2002, the FDO informed the Applicant that although all the awards for the four charges were “acceptable when they are considered separately”, he was considering imposing an “additional award” of compulsory retirement with deferred benefits.  The Applicant was accordingly invited to show cause as to why the additional award should not be made.  The reasons for considering an additional award being imposed were contained in a separate document.  There, the FDO referred to the facts as reflecting “very poorly on [the Applicant’s] sense of responsibility and professionalism”.  As to his excuse that his indebtedness was caused by his wife’s gambling, the FDO said this, “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”.  In this document was repeated the point that the awards for the individual charges were “acceptable when they are considered separately”.

(4)     Despite written representations made by the Applicant, on 8 March 2002, the FDO imposed the “additional award” as stated above and this was communicated to the Applicant on 12 March 2002.  I shall hereinafter refer to this award as “the Additional Award”.  The Memorandum dated 12 March 2002 from the FDO to the Applicant (which was in Chinese) confirmed the awards for the four charges made by the SPO as well as the imposition of the Additional Award.  It was not specified to which charge the Additional Award related.  This is important, as will presently be shown.

(5)     The Applicant appealed to the Commissioner by a petition dated 25 March 2002 which was supplemented on 26 July 2002.  The Applicant sought to reverse his guilty plea on Charge C.  By a Memorandum dated 15 August 2002, the Commissioner informed the Applicant that his appeal was dismissed.  In his reasons for dismissing the appeal, the Commissioner said this : -

“        Although there was no direct evidence to show the appellant’s personal involvement in gambling, I have a strong feeling that he was not totally honest with the investigators and the AO.  I therefore have serious doubts about his integrity.  I find the FDO’s decision to give an additional award of ‘Compulsory retirement with deferred benefits’ absolutely correct since the appellant could not meet the very high disciplinary standard that is required of a police officer in the Force.”

8. As stated above, the Applicant instituted proceedings on 15 November 2002 seeking leave to apply for judicial review in order to quash the decisions of the FDO and the Commissioner.

The judgment below

9. Leave having been granted to apply for judicial review, the substantive hearing came on before Deputy High Court Judge A Cheung (now A Cheung J) on 12 May 2003.  In a judgment handed down on 30 May 2003, the judge granted orders of certiorari quashing the decision of the FDO made on 8 March 2002 insofar as it imposed the Additional Award.

10. The Judge’s reasons were as follows : -

(1)     The Judge held that the FDO had no power to make the Additional Award which was an award that was imposed, not as part of any one or more of the individual awards for the four charges, but on top of or additional to these awards on an overall basis.  Nothing in the Regulations permitted this to be done.

(2)     This being so, the decision of the FDO obviously had to be set aside by reason of the lack of jurisdiction.  However, the question then arose as to what form the relief should take.  The Respondent submitted that the whole matter ought to be referred to the FDO for consideration afresh of the appropriate punishments for the charges.  This was for two reasons.  First, the appropriate punishment that ought to be imposed for the four charges was a matter for the FDO to determine and not the Courts.  Since the FDO (as did the Commissioner) obviously took the view that the Applicant’s conduct was of sufficient gravity to merit more than what was imposed on him by the SPO, he should be permitted to reconsider just what would be the appropriate punishment in relation to the charges, particularly for Charge C.  Evidently, so it was submitted, the awards that had been imposed by the SPO were, when the Applicant’s conduct was looked at as a whole, insufficient.  Secondly, the FDO’s confirmation of the SPO’s award in respect of Charge C (dismissal suspended for 12 months) could not in any event be permitted to remain since neither he nor the SPO had the jurisdiction to suspend in that way.  The only powers of suspension that he had under the Regulations were limited to where the AT had imposed an award for the charge in question.  No such power to suspend existed where the FDO made an original award.

(3)     The Judge refused to remit the matter to the FDO for a fresh consideration of the question of the appropriate award.  He took the view that since the FDO had said that the awards for the four individual charges (that had been made by the SPO) were by themselves “acceptable” when considered separately and that it would be wrong to take into account extraneous factors in determining the appropriate award for each offence, there was little point in a consideration afresh by the FDO since he would be bound to come to the same conclusion.  A decision simply to quash his decision on 8 March 2002 was therefore appropriate but only insofar as it imposed the Additional Award.  His confirmation of the other awards for the four charges was, however, to remain intact.  As to the point made by the Respondent regarding the lack of jurisdiction on the part of the SPO and the FDO to suspend, the Judge did not deal with it saying that his decision on it was unnecessary.

11. Before dealing with the issues that arise in this appeal, I should first set out in more detail the scheme under the Regulations governing disciplinary proceedings against junior police officers.

The Regulation of disciplinary proceedings against junior police officers

12. The Regulations govern the disciplining of police officers, specifically junior police officers (defined in Regulation 2 as a police officer below the rank of inspector) and inspectors.  We are in this case only concerned with the disciplining of junior police officers and in particular with the procedure regulating punishments awarded against defaulters.  As we have seen, police officers charged with disciplinary offences are known as defaulters under the Regulations : - see Regulation 2.

13. Where a junior police officer has been charged with a disciplinary offence (which are defined and set out in Regulation 3(2)), there are, as I have mentioned, three stages of disciplinary proceedings which he has to undergo, together with a right of appeal following the third stage.

14. The first stage are the proceedings before an AT, which is defined in Regulation 4 to mean a superintendent.  Regulations 4-13 govern the procedure and the powers of the AT.  In summary : -

(1)	Where the defaulter (the police officer charged with a disciplinary offence) pleads not guilty, evidence is called and witnesses are examined and cross-examined.  A defaulter cannot be represented by counsel or solicitors, although he can be represented by police officer : - Regulations 9(11) and (12).
(2)	At the conclusion of the hearing, findings are made as to whether or not the charge or charges faced by the defaulter are proven.
(3)	Where, as in the present case, a defaulter pleads guilty, the AT then imposes an award (the punishment) in respect of the relevant charge after hearing mitigation from him : - Regulation 11(3).
(4)	The powers of punishment of an AT are set out in Regulation 13(1) : -
	“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 -

	(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;
	(g)	compulsory retirement with pension, gratuity or other allowances, without such benefits or with reduced benefits; or
	(h)	dismissal.”
(5)	Regulation 30 states : -
	“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.”
(6)	Under the Schedule to the Regulations (“the Schedule”), as regards an AT being a superintendent, he has power to make the following awards : -

	“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.”
	I should perhaps just observe here that it is somewhat confusing to have the powers of an AT set out in two different provisions (Regulation 13(1) and the Schedule), especially when the Schedule seeks to set out in a comprehensive form the extent of an AT’s powers to punish.  There is also a danger of inconsistency : - for example, the powers of forfeiture contained in Regulation 13(1)(d) compared with those set out in paragraph 1(d) of the AT’s powers in the Schedule.  Although Regulation 13(1) states it is subject to Regulation 30 (and thus the Schedule), the scope for confusion nevertheless exists.
(7)	The reference in the Schedule to Regulation 28 is a reference to the power to suspend punishment.  Regulation 28(1) states : -
	“28. Power to suspend punishment
	(1)	Subject to this regulation, any punishment awarded by an appropriate tribunal may be suspended by that tribunal or by any police officer of higher rank than the officer or officers constituting the tribunal for a period of not less than 6 months nor more than 1 year.”
	This Regulation is relevant to the determination of the issue of the extent to which the SPO (and the FDO) has powers to suspend punishments awarded to defaulters.
(8)	Where an AT is of the view that his powers of punishment are insufficient, he may refer his findings to a SPO so that the latter may exercise his powers of punishment : - see Regulation 13(3).  This was what happened in the present case in relation to Charge C : - see paragraph 7(1) above.
(9)	Where an AT has decided to exercise his own powers of punishment under Regulation 13(1) or the Schedule, the next stage is the review before a SPO.  There are time limits governing this stage : - see Regulation 14(1).

15. As to the second stage before a SPO : -

(1)     So far as findings of guilt are concerned, the SPO may confirm, vary, substitute or set aside any finding made by an AT or even order a rehearing : - Regulation 14(1)(a).  He may not, however, substitute a finding of not guilty with one of guilty : - Regulation 14(3)(b).

(2)     For awards made by an AT, the SPO may confirm, remit or substitute any award and, where no award was made, impose any punishment that he has power to make : - Regulation 14(1)(b).  This latter power enables a SPO to impose a punishment where the AT considers that its powers of punishment are insufficient : - see Regulations 11(6), 13(3) and 14(1)(b)(i).

(3)     The powers of punishment of a SPO are set out in the Schedule : -

“1.	(a)	Caution;
	(b)	Reprimand;
	(c)	Severe reprimand;
	(d)	Forfeiture of not more than 1 month’s 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; 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))”

(4)    The power to suspend punishment is set out in paragraph 2 to that part of the Schedule relating to a SPO’s powers of punishment but this power is one that specifically refers back to Regulation 28.

16. The third stage of the disciplinary process is before the FDO : -

(1)     Again, there are time limits within which the FDO must render his decision : - see Regulation 14(5).

(2)     Like the SPO, the FDO may confirm, vary, substitute or set aside any finding of guilt as well as order a rehearing.  He may not however substitute a finding of not guilty with one of guilty.

(3)     In relation to awards, Regulation 14(5)(b) states as follows : -

“14. Confirmation or variation of finding or award

(5) …

(a)    …

(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.”

(4)     The FDO’s powers are set out in the Schedule and these are the same as those of a SPO including the power to suspend punishments, again with express reference to Regulation 28.

17. Where a defaulter is dissatisfied with the outcome of the three said disciplinary stages, he has a statutory right of appeal by petition to the Commissioner : - see Regulation 15.

18. I now turn to the issues in this appeal.

The Issues

19. Although the Respondent’s notice of appeal sought an order that the application for judicial review be dismissed, it was accepted by Mr Simon Westbrook SC (for the Respondent) that the FDO’s decision was wrongly made and therefore had to be set aside.  However, it becomes important to study the basis of why he submits this to be so.  Mr Westbrook argued that the FDO did, contrary to the Judge’s conclusion, have the power to impose the Additional Award.  However, this could only be imposed in place of or in addition to any punishment awarded under paragraph 1 of his powers under the Schedule.  There had accordingly to be in existence a valid paragraph 1 punishment that had been awarded.  In the present case, no such punishment had been awarded as far as Charge C was concerned.  The award of dismissal suspended for 12 months made by the SPO and confirmed by the FDO was not a paragraph 1 punishment.

20. In these circumstances, the Additional Award therefore had to be set aside.  In judicial review terms, the decision to impose the Additional Award was to be quashed.  Without the Additional Award then, all that was left was the decision of the FDO to confirm the awards made for the four charges.  But this decision, so Mr Westbrook argued, could not stand or be permitted to stand either since the award for Charge C was not sustainable owing to the lack of jurisdiction to suspend.  Mr Westbrook here submitted (as did his predecessor in the Court below) that the SPO did not have the jurisdiction to suspend the award of dismissal.  This was the point that the Judge did not deal with in his judgment.  If this argument was correct, it followed that the FDO was wrong to have confirmed this award.

21. For the above reasons, Mr Westbrook submitted that the whole matter ought therefore be remitted to the FDO for consideration afresh of the appropriate award to be imposed on the Applicant.

22. In further support, he also submitted that in any event the question of the appropriate punishment to be given to the Applicant was a matter for the FDO and the Police Force to determine.  It was quite clear that the Additional Award represented what the FDO (and the Commissioner) thought to be an appropriate punishment on top of the other awards for the four charges.  If only these awards remained, this would not, he said, reflect the level of punishment that senior members of the Police Force had deemed appropriate in relation to these charges.  In these circumstances, it was right for the whole matter to be considered afresh by the FDO.

23. Mr S H Kwok (who represented the Applicant), whilst agreeing that the Additional Award had to be set aside, supported the Judge’s reasons as the basis for the decision to be quashed.  Quite simply, he submitted, the FDO had no jurisdiction to impose the Additional Award.  He also supported the Judge’s order to the effect that only the decision to impose the Additional Award should be quashed, leaving intact the other awards for the four charges (which the FDO had confirmed).  He disagreed with Mr Westbrook’s argument that the award for Charge C imposed by the SPO (and confirmed by the FDO) was made without jurisdiction : the SPO did have power to suspend.  In such circumstances and given the remarks made by the FDO that the awards for the four charges were “acceptable”, there was no reason to have the matter remitted to the FDO for consideration afresh of the appropriate level of award.

24. As can therefore be seen, both the Applicant and Respondent agreed that the decision of the FDO cannot stand, but differed on the basis for this.  More important, they disagreed on the form of the relief that should be given.  The Respondent seeks an order that the whole question of the appropriate awards that should be imposed on the Applicant in relation to the four charges be remitted to the FDO for its determination afresh while the Applicant resists this, instead seeking to uphold the Judge’s decision simply to quash the decision of the FDO made on 8 March 2002 only inasmuch as it imposed the Additional Award.

Resolution of the issues

25. In my view, there is no doubt that the decision of the FDO insofar as it imposed the Additional Award, must be quashed.  Although the parties, as I have said above, were more or less agreed on this course, it is important to set out the reasons for this.

26. I agree with the Judge that the FDO had no power to impose an additional award on a global basis.  While an additional award can be imposed by a FDO on top of another award (see paragraph 4 of that part of the Schedule relating to the powers of punishment of the FDO - see paragraph 15(3) and 16(4) above), this can only be done where it relates to the same charge.  For example, if in the present case the FDO had in relation to Charge C imposed a punishment specified in paragraph 4 of the Schedule in addition to a punishment under paragraph 1, he would have had the jurisdiction to do so.  What he could not do was to impose an additional punishment on some sort of global or overall basis which attached to no charge in particular.  The FDO’s powers of punishment as set out in the Schedule simply do not permit this.

27. The Regulations refer to awards being made and it is clear that awards are made in relation to specific charges.  Nothing in the Regulations suggests that awards can be made on some undefined, overall or global basis without fixing itself to any particular charge.  In fact, quite the contrary : - as we have seen, a punishment under paragraph 4 of the Schedule relating to the FDO’s powers can only be imposed in addition or in place of a punishment already given under paragraph 1.  It therefore must relate to a specific charge.  It must also be against basic principles of sentencing to allow punishments to be imposed on a general, overall and undefined basis.  Of course, I recognize that in imposing a sentence or punishment, a sentencer is entitled to take into account all relevant factors (whether mitigating or aggravating) such as a person’s record (or in the case of, say, a policeman his disciplinary record) to determine the proper level of punishment, but this does not permit any sentence or punishment to be given on some vague, overall basis that does not relate to any particular charge. Yet that is precisely what the FDO did in the present case in making the Additional Award.  He was in my judgment quite wrong to have done so.

28. Mr Westbrook relied on the judgment of Hartmann J in Lee Yiu Cheong v Commissioner of Police, unreported, HCAL 80/2003, 19 January 2004, Count of First Instance, in support of his argument that the FDO did have power to impose a sentence on a global basis.  There, a junior police officer faced some 21 charges relating to his being absent from duty and visiting the Mainland without giving due notification.  Awards were made on each charge by the AT and confirmed by a SPO.  When the matter reached the third stage before the FDO, he varied the punishment for one of the charges but also imposed an additional award, which was coincidentally in the same terms as the Additional Award in the present case.  In his application for judicial review, the applicant in the case submitted there was no jurisdiction to make the additional award.

29. Hartmann J accepted that more than one punishment could be imposed for any charge : - see paragraphs 1 and 4 of the Schedule.  However, the punishment had to relate to a specific charge and although this was not made clear by the language used by the FDO in that case, Hartmann J held that this was undoubtedly what was meant by the FDO as a matter of substance : - see paragraphs 28-30.  In my view, far from being an authority to support the proposition that an additional award can be imposed in some vague, unspecified or overall way, Hartmann J was actually saying quite the opposite.  In other words, the award or punishment had to relate to a specific charge.

30. In the present case, unlike Hartmann J in Lee Yiu Cheong, I am left in some considerable doubt on the facts whether the FDO did intend to link the Additional Award to one or more of the four charges.  The language he used was consistent with the Additional Award being made in some global, unspecified way.  This he had no power to do.

31. I should say that even if it was clear in the present case that the FDO did intend to impose the Additional Award in relation to any particular charge, the most obvious one would be Charge C (which had been regarded by every level of the police disciplinary process as being the most serious).  Here, I think Mr Westbrook must be correct in saying that given the requirement in paragraph 4 of the FDO’s powers of punishment in the Schedule that any such award had to be in place of or additional to an existing paragraph 1 punishment, there had therefore to be in existence a paragraph 1 punishment.  The punishment for Charge C which was confirmed by the FDO (dismissal suspended for 12 months) is not a punishment that is contained in paragraph 1 of the Schedule.  The Additional Award accordingly had nothing onto which it could properly attach.  This provides yet another reason why the decision of the FDO to make the Additional Award must be set aside and quashed.

32. With the Additional Award having to be set aside, what should the proper relief be?  In my judgment, the order should be that the whole matter (this is, the decision on the appropriate punishment to be imposed on the Applicant in relation to all four charges) should be remitted to the FDO for consideration afresh : -

(1)     It is apparent from the facts referred to earlier that the AT, SPO, FDO and the Commissioner all took a serious view of the charges that the Applicant faced and to which he had pleaded guilty.  While it is true that the FDO did remark that the awards made by the SPO under each charge were by themselves acceptable, this has to be seen in context.  It is clear that in relation to the charges, he regarded that a more serious punishment was merited when they were looked at as a whole.  In other words, if each charge were looked at in a vacuum, the punishments awarded by the SPO might have been acceptable but when the charges were seen in the context of each other (and therefore taking into account how they reflected on the Applicant’s suitability and integrity as a police officer), different considerations came into being.

(2)     The Judge adopted an unduly restrictive approach and, with respect, fell into error in assuming that each charge could and should be looked at individually as though in a vacuum when in reality, this was not the way that it was regarded by all four levels of the police disciplinary process.

(3)     It is a general rule that each disciplinary body is in a better position than the Courts to determine the true effect and impact of a member’s activities and to judge the appropriate level of punishment that should be imposed.  The Police Force is no exception to this general rule.  The Courts will not interfere unless something has gone seriously wrong and an irrational decision is made.  In the present case, I think it best for the FDO to look at the matter afresh.  In Au Yeung Kwok Hing v The Attorney General for and on behalf of the Commissioner of Police, unreported, Civil Appeal 205/1994, 7 February 1995, Nazareth VP said this at 22-23 : -

“        It is helpful to have regard to some of the considerations which have led to the well-established nature of the court’s limited supervisory jurisdiction in judicial review.  It is to the Commissioner and his officers that the determination and punishment of disciplinary charges have been entrusted by the legislation, and not the courts.  And in discharging that function, the former are entitled, and must be presumed to have been expected, if not required, to bring to bear their knowledge and experience of the requirements and operations of the Police Force; and likewise to assess awards in the light shed by the nature and circumstances of the misconduct upon the desirability and appropriateness of the offending officer remaining in the Force.”

(4)     There is another reason why the whole matter should be remitted to the FDO for reconsideration.  As we have seen earlier, with the Additional Award set aside, all that would be left are the four individual awards made by the SPO which were confirmed by the FDO (see paragraph 7(4) above).  The awards for Charges A, B and D pose no problems :  the SPO had power to make these awards.  It is the award for Charge C (dismissal suspended for 12 months) that poses problems, specifically the order to suspend.  Did such a power to suspend exist?  In my judgment, it did not.  In these circumstances, it would be quite wrong then to allow this award for Charge C to remain.

(5)     I have already set out the relevant provisions in the Regulations relating to the power to suspend punishments : - in the case of the AT, Regulation 28 and paragraph 2 of his powers in the Schedule; in the case of the SPO and the FDO, paragraph 2 of their powers of punishment in the Schedule.  The specific reference to Regulation 28 in the suspension powers of the SPO and the FDO is crucial.  That Regulation is worded in such a way as to permit suspension only in respect of a punishment that has been awarded by an AT.  It is not available where the SPO or the FDO imposes any original awards of their own.  The clear meaning of Regulation 28(1) is that a “punishment awarded by an [AT]” may be suspended either “by that tribunal or by any police officer of higher rank than the officer or officers constituting the [AT]”.  The wording of the Regulation is not such that the power of suspension can relate both to punishments awarded by the AT and to those imposed by a superior officer (which in this context means the SPO and the FDO).  In other words, where an AT does not make any award in respect of a charge but the SPO or FDO decides to make one or where the SPO or FDO decides to make a different award to that of an AT, the powers of suspension do not exist.

(6)     It is perhaps somewhat surprising to see why the power to suspend is so restricted, especially where, as in the present case, the AT has referred the question of punishment for Charge C to the SPO for determination.  However, the wording of Regulation 28 is clear and the Schedule simply does not give any additional suspensory power to either the SPO or the FDO save in respect of an award already made by an AT.  Instead, the Schedule refers back to Regulation 28.  At first, I had thought it might be possible to read the power of the SPO and the FDO to suspend in paragraph 2 of the Schedule mutantis mutandis with the AT’s powers under Regulation 28.  However, given the specific reference in that Regulation to “any police officer of higher rank than the officer or officers constituting the [AT]”, this was obviously a reference to the limits of the power to suspend of the SPO and the FDO.

(7)     Mr Kwok submitted that in the present case, the decision of the SPO to impose the award of dismissal suspended for 12 months should be treated as a decision of the AT since this was only made after a reference by the AT.  Nothing, however, in the Regulations permits of such a deemed position.

Conclusion

33. For the above reasons, I would allow the appeal and order that the entire matter (that is, the decision on the appropriate punishment to be imposed on the Applicant in relation to all four charges) be remitted to the FDO for consideration afresh.  I would also make an order nisi that the costs of this appeal be to the Respondent, such costs to be taxed if not agreed and that the Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.