KUK YUK CHING v. COMMISSIONER OF POLICE

HCAL125/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.125 OF 2005

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J U D G M E N T

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1.  In this application, the applicant seeks to judicially review the following decisions in connection with his disciplinary proceedings: 

(1)	The decision of the Appropriate Tribunal (“AT”) dated 10 January 2005 finding the applicant guilty of three disciplinary charges of conduct calculated to bring the public service into disrepute and awarding him the punishment of severe reprimand for each of the charges.
(2)	The decision of the Senior Police Officer (“SPO”) dated 21 January 2005 confirming the guilty finding and the award made by the AT on the charges and ordering the issue of a warning for dismissal (general) valid for two years.
(3)	Decisions of the Force Discipline Officer (“FDO”) (a) dated 4 March 2005 confirming the guilty finding of the AT; and (b) dated 16 March 2005 substituting the award of reduction in rank for the award made by the AT in respect of each of the charges, and ordering the issue of a warning for dismissal (general) valid for three years.
(4)	Decision of the Deputy Commissioner of Police, Management (“DCP(Man)”) dated 29 June 2005 dismissing the applicant’s appeal against the decisions of the FDO.

The facts

2.  The applicant was aged 51 at the time of the disciplinary proceedings.  He joined the police force on 20 June 1977.  On 28 December 1987, he was promoted to the rank of sergeant.

3.  In 1996, the applicant came to be acquainted with an elderly woman called Au Yeung Kee (“Au Yeung”). She was born in 1939 and is uneducated and illiterate.  She knew that the applicant was a serving police officer.  In a property transaction in 1993, a woman surnamed Lau cheated some $3 million out of Au Yeung.  Lau was subsequently convicted and sentenced to two years imprisonment.

4.  In about 1999, Au Yeung asked the applicant to hire a lawyer for her for the purpose of recovering her loss from Lau.  She passed to the applicant a document that she had obtained from the police force.  As she could not read, she did not know the contents of the document.   The applicant reverted to Au Yeung ten odd days later informing her that the matter had to be handled by a lawyer and he would help her to hire a lawyer to handle the civil suit.

5.  In the subsequent months, Au Yeung had on many occasions asked the applicant about the progress, but the applicant only gave evasive answers.  Au Yeung claimed that she had given $60,000 to the applicant in connection with the hiring of lawyer. The applicant disputes this. The AT had found there was no corroborative evidence to support this claim.  In any event, this is not the subject matter of the disciplinary charges.

6.  Since 2000, Au Yeung lost contact with the applicant.  In the beginning of 2003, she called the applicant on her ex-employee’s telephone.  The applicant hanged up as soon as he heard her voice. Au Yeung therefore thought that the applicant had cheated her of her $60,000.  On 20 February 2003, she made a report to the ICAC against the applicant. 

7.  Subsequently, through the arrangement of ICAC, Au Yeung met with the applicant on three occasions.  The meetings were recorded on a tape recorder carried by Au Yeung.

8.  The first meeting took place on 15 October 2003 near the applicant’s residence.  During the encounter, Au Yeung asked about the progress of hiring a lawyer.  The applicant replied that the matter was being handled, that Lau’s criminal case had not been concluded and he still kept the document Au Yeung passed to him.  

9.  Then on 5 December 2003, Au Yeung waited for the applicant outside Tsing Yi Police Station, to which the applicant was then attached.  When she saw the applicant, she asked for the return of the document she had given him.  The applicant agreed to return it and further agreed to do so at 11 am the following day at a Lan Heung Restaurant.  The applicant however did not turn up as agreed.

10.  Thereafter on 23 December 2003, Au Yeung went to Tsing Yi Police Station to look for the applicant. They had a talk outside the station, during which Au Yeung asked the applicant whether he had really found a lawyer for her.  The applicant replied in the affirmative.  He mentioned to her a name, claiming that it was the lawyer’s name and further claimed that the lawyer’s office was on Lockhart Road in Wanchai.  

11.  The applicant was arrested by the ICAC on 13 January 2004.  In his cautioned statement, the applicant stated he had not found or hired a lawyer for Au Yeung.  He denied receiving $60,000 from AU Yeung.

12.  The applicant was not prosecuted with any offence.  The ICAC later referred the matter to the police force.  On 17 June 2004, the applicant gave a statement to the police in connection with the disciplinary investigation.

13.  On about 7 October 2004, disciplinary proceedings were commenced against the applicant.  He faced three charges of conduct calculated to bring the public service into disrepute (Charges A to C) and one charge of contravention of Police Order (Charge D).   The present judicial review only relates to Charges A to C.

14.  After three adjournments to enable the applicant to find a defence representative, the hearing proceeded on 15 November 2004.  The applicant was unrepresented.  He pleaded not guilty to Charges A to C, but admitted Charge D.  The trial took place on 7 and 16 December 2004.  With the agreement of the applicant, the prosecution produced 17 documentary exhibits, including the transcripts of the tape recordings of the three meetings, Au Yeung’s statement to the police and the applicant’s cautioned statement and statement to the police.  No prosecution witness was called.  The applicant did not give evidence.

15.  On 10 January 2005, the AT found the applicant guilty of Charges A to C.  After receiving mitigation, the AT made an award of severe reprimand on each of these charges.

16.  On 21 January 2005, the SPO confirmed the guilty finding and the award made by the AT.  He also issued a warning for dismissal (general) valid for two years.

17.  On 4 March 2005, the FDO confirmed the guilty finding.  By a memorandum dated 7 March 2005, he gave notice to the applicant to show cause why the award of severe reprimand imposed by the AT should not be substituted with an award of reduction in rank. The memorandum was accompanied by Annex A setting out the FDO’s deliberations. The FDO further ordered that the warning for dismissal (general) should remain valid for a period of three years instead of two years.

18.  The applicant made his written representation on 13 March 2005.  Having considered them, the FDO decided on 16 March 2005 to substitute the award for each of Charges A to C with an award of reduction in rank. The decision was communicated to the applicant by memorandum dated 17 March 2005.

19.  On 11 April 2005, the applicant appealed to the Commissioner of Police against the guilty finding.  He was served with the staffing note on 25 May 2005 and invited to make comments on it.  The applicant made his written comments on 9 June 2005.

20.  On 29 June 2005, DCP(Man) dismissed the applicant’s appeal and ratified the award made by the FDO.  The applicant was notified of the decision on 8 July 2005 by memorandum dated 8 July 2005. 

21.  The award came into effect on 11 July 2005.

22.  On 6 October 2005, the applicant filed the Form 86A herein.  Leave to apply for judicial review was granted on the same day.  The Notice of Motion was filed on 16 November 2005.  On 16 December 2005, the Form 86A was amended.  At the hearing of the judicial review, the Form 86A was re-amended. 

The disciplinary charges

23.  Before looking at the grounds for judicial review, it is convenient to set out the three disciplinary charges with which the application is concerned.  They are:

A.		Conduct calculated to bring the public service into disrepute
	Sgt 17611, Kuk Yuk Ching of the Hong Kong Police Force, you are charged that at about 1242 hours on 2003-10-15, at Pak Yuen House outside Dragon Palace Seafood Restaurant at lei Muk Shue Estate, Tsuen Wan, in Hong Kong, you did lead Madam Au Yeung Kee to believe that a lawyer had been hired by you on her behalf to initiate civil proceedings when in fact you had not done so, such act being conduct calculated to bring the public service into disrepute.
B.		Conduct calculated to bring the public service into disrepute
	Sgt 17611, Kuk Yuk Ching of the Hong Kong Police Force, you are charged that at about 1450 hours on 2003-12-05, outside the entrance of Tsing Yi Police Station, Tsing Yi, in Hong Kong, you did induce Madam Au Yeung Kee to believe that you would meet her in the Lan Heung Restaurant at 1100 hours on the following day to return a document to her when in fact you had no intention of doing so, such act being conduct calculated to bring the public service into disrepute.
C.		Conduct calculated to bring the public service into disrepute
	Sgt 17611, Kuk Yuk Ching of the Hong Kong Police Force, you are charged that at about 0835 hours on 2003-12-23, outside the entrance of Tsing Yi Police Station, Tsing Yi, in Hong Kong, you told Madam Au Yeung Kee that you settled the matter of finding a lawyer for her and gave the name of such lawyer when in fact you had not found a lawyer and had made up the name, such act being conduct calculated to bring the public service into disrepute.

Grounds for judicial review

24.  The applicant relies on a variety of grounds. They are:

(1)	In respect of Charge A, the AT erred in finding it was proved beyond reasonable doubt that the applicant did lead Au Yeung to believe that a lawyer had been hired by him on her behalf to initiate civil proceedings in that there was no evidence to prove the mental element of Au Yeung at the time of the first meeting.
(2)	In respect of Charge B, the AT erred in finding it was proved beyond reasonable doubt that the applicant did induce Au Yeung to believe he would meet her at Lan Heung Restaurant at 11 a.m. on the following day to return a document to her in that there was insufficient evidence to prove this.  Further, the AT’s finding that the applicant deliberately misled Au Yeung is irrelevant to the particulars of the charge.
(3)	In respect of Charges A and B, the AT should not have relied solely on the transcripts of the meetings to find that the applicant had deliberately mislead Au Yeung in that the transcripts are incomplete due to the quality of the recording, unreliable and should not be given full weight.
(4)	In respect of Charge C, the AT erred in relying on the transcript of the third meeting in that the conduct of the ICAC officer who was with Au Yeung amounted to an interrogation of the applicant, but without disclosing her identity as an ICAC officer.
(5)	In respect of each of Charges A to C, the AT erred in finding that the applicant’s conduct was “calculated to bring the public service into disrepute”.
(6)	The AT’s guilty finding in respect of Charges A to C is illegal in that Regulation 3(2)(m) of Police (Discipline) Regulations, which created the disciplinary offence in question, is ultra vires section 45 of Police Force Ordinance.
(7)	Alternatively, the guilty finding is irrational in that Regulation 3(2)(m), properly construed, prescribes a disciplinary offence only in respect of conduct occurring in the course of or otherwise connected with the proper discharge of constabulary duties.
(8)	The AT was selective in its evaluation of the evidence and had not considered or properly considered the explanations given by the applicant in his statements to the ICAC and police.
(9)	The AT failed to protect the interest of the applicant during the hearing and consequently the applicant did not have a fair hearing.  The AT misunderstood the applicant’s agreement to the admission of the documentary exhibits as an admission of the accuracy, reliability and truthfulness of their contents.
(10)	The FDO’s decision to substitute the award made by the AT with an award of reduction in rank is procedurally improper in that by ordering the issue of a warning for dismissal, he had pre-determined the question of the appropriate award for the Charges.
(11)	The FDO’s decisions to confirm the guilty finding, to substitute the award of reduction in rank  and to issue the warning for dismissal are illegal in that they were not made within the 14 days period prescribed by Regulation 14(5) of the Police (Discipline) Regulations.
(12)	The FDO’s decision to substitute the award made by the AT with an award of reduction in rank is manifestly disproportionate to the gravity or blameworthiness of the applicant.
(13)	The DCP(Man) failed to realize that the applicant’s appeal was not confined to the guilty finding, but extended also to the punishment imposed.

Ground (1) : No evidence of the mental element of Au Yeung to prove Charge A

25.  Under Ground (1), the applicant’s argument is that Charge A requires the prosecution to prove beyond reasonable doubt the particulars, namely, the applicant did lead Au Yeung to believe that a lawyer had been hired by him on her behalf to initiate civil proceedings.  There was however no evidence as to whether Au Yeung was misled by the applicant at the first meeting because she did not give evidence at the hearing.  Further, Au Yeung had mentioned in her statement to the police for the disciplinary proceedings that in the beginning of 2003, after the applicant hanged up on hearing her voice, she was sure that he cheated her out of $60,000 on the pretext of hiring a lawyer for me.  The applicant says that since Au Yeung was already sure that the applicant had cheated her, and given that the first meeting was a controlled meeting, the prosecution failed to prove that the applicant did lead Au Yeung to believe he had hired a lawyer on her behalf.

26.  In considering this and the other grounds that challenge the basis of the guilty finding of Charges A to C, it is important to note two fundamental points.  Firstly, the court in judicial review proceedings does not sit in an appellate jurisdiction. Its role is not to examine the merits of the decision, but is to review the decision-making process. 

27.  Secondly, at the disciplinary hearing, the applicant did not dispute the facts underlying the prosecution case, including what he told Au Yeung at the three controlled meetings was false.  He did not give evidence.  In his written final submission, it was said that he completely agreed with and accepted the prosecution case on the falsity of the responses he gave to Au Yeung when being asked about the progress. The thrust of his arguments by way of defence was that when he spoke to Au Yeung, he was acting as a friend and he was off duty and that he did not give the false answers maliciously as he merely wanted to stop Au Yeung from pestering him.

28.  Therefore in respect of Charge A, the applicant had accepted he did set out to mislead Au Yeung by falsely telling her he had already hired a lawyer to initiate the civil proceedings.  He made no challenge as to whether what he said had led Au Yeung to believe he had already hired a lawyer. This was simply not an issue before the AT.  Not surprisingly, the AT did not deal with this in the finding of guilt. In the circumstances, it would not be open to the applicant to dispute the point in this judicial review application and ask this court in its supervisory jurisdiction to quash the finding of guilt on this basis.

29.  Further, as Mr Wan points out, although in 2003, Au Yeung reported the applicant to the ICAC because after the telephone call, she felt that the applicant had cheated $60,000 out of her, it does not lead to the conclusion that the words said by the applicant at the first meeting had no effect on her mind at all.  Although the meeting was a controlled meeting, it is not Au Yeung’s evidence that she took no heed of what was said by the applicant. It cannot be said that the very fact and the purpose of the controlled meeting itself negatives the prosecution case underlying Charge A.  Looking at the facts and the circumstances as a whole, I do not agree that the AT's guilty finding of Charge A is irrational or improper.

Ground (2) : No evidence to prove Au Yeung was induced as particularised in Charge B

30.  The applicant’s argument under Ground (2) is similar to Ground (1).  It is said that Charge B requires the prosecution to prove beyond reasonable doubt that the applicant did induce Au Yeung to believe he would meet her at Lan Heung Restaurant at 11 a.m. the day after the second meeting to return a document to her.  However, there was no evidence from Au Yeung as to whether she did believe in what the applicant told her at the second meeting. It is also argued that the AT asked the wrong question by considering whether the applicant had deliberately misled Au Yeung.

31.  As in the case of Ground (1), this was never an issue before the AT.  More importantly, it is not disputed that the reason for this agreed meeting was for the applicant to return the document to Au Yeung.  She had also said in her statement to the police that the applicant did not turn up at the restaurant as agreed.  The obvious and irresistible inference must be that Au Yeung had gone to the restaurant at the agreed time.  The applicant did not dispute that he did not turn up.  On these facts, there is ample basis for the AT’s guilty finding of Charge B.  There is no merit in this ground.

Ground (3) : The transcripts of the meetings

32.  In respect of both Charges A and B, the applicant complains that the transcripts of the meetings are incomplete due to the poor quality of the recording.  It is argued that the AT should not have afforded full weight to and relied on the transcripts.

33.  There is no doubt that the transcripts are admissible evidence.  The question as to what weight to be given to them is a matter for the AT.  At the disciplinary hearing, the applicant was entitled to and could have raised issues as to the quality of the recordings and the completeness and accuracy of the recordings and of the transcripts.  He had however made no challenge to the recordings or the transcripts.  The affirmation of the prosecuting officer further shows that at the adjourned hearing, the ICAC officers were present ready to give evidence when the applicant indicated he agreed to the contents of the transcripts, had no cross-examination for the officers and did not want to listen to the recordings.  In the circumstances, the AT could not be faulted for relying on the contents of the transcripts and affording them full weight.  There was simply no basis for the AT to doubt the accuracy, completeness or reliability of the recordings and the transcripts.

34.  It should also be noted that the guilty finding did not rest solely on the transcripts.  There are other documentary evidence before the AT, including the statements given by Au Yeung and by the applicant.

Ground (4) : The role of the ICAC officer at the third meeting

35.  Under Ground (4) that relates to Charge C, the applicant’s complaint is that the ICAC officer who were with Au Yeung at the third meeting took an active part by initiating the conversations about the hiring of the lawyer and asking the applicant for the name and address of the lawyer.  It is said that this amounts to interrogation and it is unfair to rely on the answers obtained as evidence against the applicant.  Reliance was placed on the decision of the Court of Final Appeal in Secretary for Justice v. Lam Tat Ming & Anor (2000) 3 HKCFAR 168.

36.  In Lam Tat Ming’s case, the Court of Final Appeal was concerned with the residual discretion to exclude a voluntary and admissible confession obtained in the course of an undercover operation. It held that (at 185F-H) in exercising the residual discretion to exclude a voluntary confession, the trial judge has to consider whether it would be unfair to the accused to use the confession against him at trial and unfairness is to be judged against what is required to secure a fair trial for him.  In the context of an undercover operation, whether his right of silence has been jeopardised is relevant.  As to how the discretion is to be exercised where there had been active questioning by the undercover agent, the Chief Justice observed that (at 181H-J):

“… If all the officer does is to draw attention to the incident which gives rise to the offence charged, in the absence of any other relevant circumstances, there is no persuasive reason for excluding a confession made.  The officer is doing no more than providing an opportunity for the suspect to speak. If however what the officer does amounts to interrogation, the discretion would ordinarily be exercised so as to exclude the confession. Such an interrogation would constitute a derogation of the accused’s right of silence and thus prejudice his fair trial.  Whether the conversation amounts to an interrogation would have to be determined having regard to all the circumstances.”

37.  In my view, this case does not assist the applicant.  Firstly, unlike the trial judge in a criminal proceeding, the AT does not have any residual discretion to exclude admissible evidence.  There is no provision in the Police (Discipline) Regulations that empowers that AT to exclude admissible evidence.  As to the common law, in Mahon v. Air New Zealand & Ors [1984] 3 All ER 201, 210, Lord Diplock stated that: “… the technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice.  What is required … is that the decision to make the finding must be based on some materials that tend logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.”  Although Mahon’s case concerned the finding of a Royal Commissioner, it has been considered that what Lord Diplock said applies to disciplinary proceedings: Harris, The Law and Practice of Disciplinary and Regulatory Proceedings (2nd Edition) at p.229.  

38.  Secondly, as the Chief Justice made clear both at the outset and towards the end of the judgment, Lam Tat Ming’s case was concerned with an undercover operation conducted where the criminal offences had been completed and the approach to the exercise of the discretion stated therein should be understood in that context.  It was also stated that different considerations would apply if the undercover operation was conducted when the criminal activities were ongoing and the offences had not been completed and where “the purpose is to collect evidence of an ongoing offence and the evidence usually concerns the commission of a crime, although in the course of it, it is possible that evidence of past offences may emerge”: at 176J-177C and 182D-F.

39.  As analysed by Mr Wan, at the time of the controlled meetings, there were only suspicions that offences might have been committed by the applicant.  The purpose of the meetings is to collect evidence.  Indeed, the ICAC did not bring any prosecution as it was considered that the evidence was insufficient.  The discussions and reasoning of the Court of Final Appeal associated with the non-disclosure of the undercover agent’s identity vis-a-vis the administering of caution and the right of silence do not necessarily apply.

40.  As to the question of whether there is any unfairness in relying on the transcript of the third meeting and/or what the applicant said during the meeting as evidence against him, it is apt to remember the oft-cited judgment of Lord Mustill in R v. Secretary of State for the Home Department ex p Doody [1994] 1 AC 531, 560D-G in which it was pointed out that the standards of fairness are not immutable and that what fairness demands is dependent on the context of the decision.      

41.  In the context of this application, it is important to see how it was that during the third meeting, the applicant came to say that the matter of hiring a lawyer for Au Yeung had been settled and to give the name and address of the lawyer.  As soon as she saw the applicant, Au Yeung asked him whether he had actually looked for a lawyer for her, to which the applicant gave an affirmative reply: paras.57-60 of the transcript.  She then suggested to the applicant that she could personally approach the lawyer to retrieve the document she had previously passed to the applicant, to which the applicant said there was no need: paras.61-63 of the transcript.  All these were said before the undercover ICAC officer asked the applicant again whether he did actually look for a lawyer for Au Yeung and asked for the name and address of the lawyer, to which the applicant did not give any direct reply: paras.68-77 of the transcript.  It was when Au Yeung asked again for the lawyer’s name that the applicant gave a name: paras.78-79 of the transcript.  Au Yeung then asked the applicant to write down the office address, which the applicant agreed. It was then that the ICAC officer asked whether the office was on Hong Kong side and the applicant replied that it was in Wanchai. Au Yeung then pressed the applicant to write down the exact address for her on a piece of paper: paras.90-101 of the transcript.

42.  It can thus be seen that although the ICAC officer had taken part in the conversation and had asked the applicant questions, it is not a case that the applicant made an admission of guilt as a result of her interrogation.  The applicant volunteered the answers freely.  He even suggested that previously he had already told Au Yeung the name of the lawyer: para.79 of the transcript.  There is no unfairness in relying on the contents of the third meeting and the transcript of it.  The AT cannot be criticised for affording full weight to this evidence.

Grounds (5) to (7) : Regulation 3(2)(m) of Police (Discipline) Regulations  

43.  Grounds (5) to (7) are related to Regulation 3(2)(m) of Police (Discipline) Regulations (“the Regulations”), under which Charges A to C were brought.  At the heart of the applicant’s arguments under these grounds is that Regulation 3(2)(m) should only prescribe a disciplinary offence in respect of conduct occurring in the course of duty or otherwise connected with the proper discharge of constabulary duties.  On this basis, the applicant’s first argument is that Regulation 3(2)(m) is vague and uncertain as it is capable of encompassing a wide range of conduct, thus amounts to a violation of the principle of legal uncertainty.  Accordingly, it is ultra vires section 45 of the Police Force Ordinance that provides for the power to make the police regulations because the legislature, in enacting section 45, intended that the police regulations thus made would not violate the principle of legal certainty. 

44.  Secondly, the applicant contends that on a proper construction, Regulation 3(2)(m) should only cover conduct in private life that would compromise or present a risk to the proper discharge of constabulary duties. The AT in finding the applicant guilty of Charges A to C, had erred in its construction of the regulation. 

45.  The applicant’s third argument is that the AT was wrong in finding the applicant guilty of the three charges when the requisite standard is that of a reasonable member of the public.

46.  Regulation 3(2)(m) makes conduct calculated to bring the public service into disrepute a disciplinary offence.  In the Police Disciplinary Manuel, which serves as guidance to police officers, it is said that:

“The word ‘calculated’ simply means likely.  In deciding whether a conduct is likely to bring the public service into disrepute, a person considering the suitability of the charge should put himself in the position of the proverbial reasonable citizen of Hong Kong and then ask himself whether the police officers’ conduct would be likely to lower the reputation of the public service in the mind of that reasonable citizen.  Or to put it in another way, an officer should ask himself:

Has the officer’s proven conduct fallen short of the standards of behaviour which a reasonable member of the public has a right to expect from officers of the Hong Kong Police Force?

For a conduct calculated to bring the public service into disrepute charge, there is no need for the public to be present.  That is, the conduct does not necessarily have to be witnessed by a member of the public.  It is enough for the prosecuting officer to establish and the adjudicating officer to be satisfied that the conduct from which the complaint has arisen falls below the standards of behaviour that the public has a right to expect of police officers.”

47.  In Fu Kin Chi v. Secretary of Justice (1997-98) 1 HKCFAR 85, a case on Regulation 3(2)(c) of the Regulation (i.e. conduct to the prejudice of good order and discipline), the Chief Justice (at100A) and Bokhary PJ (at 104B) both observed that a number of the disciplinary offences under Regulation 3(2), including Regulation 3(2)(m), can be committed by a police officer when he is off duty.  It is also pointed out that public confidence in the integrity and efficiency of the police force is of fundamental importance.  Citing Regulation 3(2)(m) as an example, Bokhary PJ commented that “even while wholly at leisure and off duty, a police officer’s conduct can nevertheless fell short of the minimum standard required at all times of police officers if the public service is to be spared from being brought into disrepute.”  It was considered by the Court of Appeal that the offences under Regulation 3(2) were part of a statutory scheme to maintain the integrity and efficiency of the police force.  In Bokhary PJ’s judgment, it is an intra vires scheme that is crucial to the maintenance of discipline within the force.               

48.  Plainly, Regulation 3(2)(m) is directed at conduct that falls below the standard of behaviour that the public has a right to expect of police officers.  It does not restrict to conduct in the course of duties or conduct connected with the proper discharge of constabulary duties. The restrictive construction that the applicant sought to put on the regulation is not warranted and cannot stand in light of Fu Kin Chi’s case. 

49.  As explained in the judgment of the Court of Final Appeal, the purpose of Regulation 3(2)(m), as with other offences created under Regulation 3(2), is to require a police officer to conduct himself with integrity, honesty and propriety at all times, whether on or off duty, and irrespective of whether it is in matters of professional life or of private life.  The yardstick prescribed by the statue is conduct calculated to, meaning likely to lead to, lower the reputation of the police force.  There is no uncertainty about it.  Neither will it trap the innocent as suggested.

50.  In his submissions, Mr Lo provided a summary of authorities related to the offence under Regulation 3(2)(m) to show that the regulation has a wide scope.  It is said that because of the wide scope, an officer cannot be adequately warned of the conduct prohibited.  I do not agree.  It is true that the authorities show that a variety of factual circumstances and conduct may be covered by the regulation, but that does not lead to the conclusion that the regulation is thereby vague and uncertain or that a police officer has no means of knowing what conduct is prohibited by it.  Among other matters, the Police Disciplinary Manuel provides useful guidance.      

51.  Turning to the finding of guilt, for reasons explained, the AT cannot be said to have erred in construing Regulation 3(2)(m) as applying to conduct in private life.  As to the rationality of the finding, the applicant complains that the AT, SPO, FDO and DCP(Man) had impermissibly adopted the managerial views of the police force instead of adopting the objective standard of the reasonable and informed member of the public, and that they did not identify what aspect of the applicant’s conduct that is culpable.

52.  In my view, this is a straightforward case.  The nub of the case against the applicant is that he repeatedly lied to and misled an old and illiterate woman who sought his help in the belief that he was familiar with the enforcement of the law by reason of his being a police sergeant.  As an experienced police officer occupying a supervisory position, the applicant could not have been left in any doubt as to what aspect of his conduct that is culpable. 

53.  In considering whether the applicant was guilty of the disciplinary charges, the AT, SPO, FDO and DCP(Man) were obliged to assess whether a reasonable member of the public would regard the conduct complained to fall short of that expected of a police officer.  The AT, FDO and DCP(Man) had all pointed to the fact that the applicant deliberately misled a member of the public who came to him for assistance.  Realistically, there is no room for saying that a reasonable member of the     public would not have concluded that such conduct fell below the standard expected of a police officer.  The suggestion that the AT, SPO, FDO and DCP(Man) had wrongly adopted their point of view instead of that of a reasonable member of the public is thus unjustified.  In any event, the DCP(Man) had explicitly stated that the applicant’s conduct fell short of the expectation of any reasonable member of the public.

54.  Mr Lo also relied on the various authorities concerning the offence under Regulation 3(2)(m) as showing that the applicant’s conduct was much less blameworthy.  In my view, this is not relevant.  The fact that the misconduct in other cases is more serious does not mean that the guilty finding made by the AT in respect of the applicant’s conduct is irrational.  

55.  In short, grounds (5) to (7) fail.

Grounds (8) & (9) : Procedural improprieties

56.  Under grounds (8) and (9), the applicant complains there were procedural improprieties in the disciplinary hearing.  Firstly, it is said that the AT failed to evaluate all the evidence before it in that it did not consider the explanation offered by the applicant in his statements, namely, he was merely trying to put off Au Yeung so that she would not continue to pester him.  In my view, this is at the most a point that goes to mitigation, but cannot be a defence to the disciplinary charges.

57.  Secondly, the applicant complains that the AT did not explore the issues relating to the accuracy, reliability and completeness of the tape recordings of the meetings and the transcripts.  As pointed out in the preceding part of this Judgment, one must not lose sight of what was the case and issues in dispute before the AT.  The applicant had not challenged any aspect of the recordings and transcripts.  No issue on them was raised in his final submission. The AT cannot be expected to go further to explore, on its own volition, any issue relating to the accuracy, completeness or reliability of the recordings and the transcripts as well as the other documentary exhibits, bearing also in mind that the applicant had agreed to their admission.

58.  In Mr Lo’s written submission (para.45(d) & (f)), it was incorrectly suggested that the applicant had mentioned in his final submission before the AT that some parts of the conversation between him and Au Yeung at the first meeting had not been picked up in the recording and transcribed.  The applicant only raised this point in his written mitigation.  Be that as it is, objectively viewed, it is not procedurally unfair for the AT not to take on board this part of the mitigation, given that the transcripts were agreed and the applicant did not give evidence. 

59.  Further, what is alleged to have been omitted is the applicant telling Au Yeung that the lawyer hired on her behalf was investigated by the ICAC and that the fees could be deducted later on.  This admittedly is also untrue.  Hence, even if this formed part of the recording and were transcribed, it would not have advanced the applicant’s defence to the charges. 

60.  The complaint of procedural improprieties under Grounds (8) and (9) therefore fail.

Ground (10) : The FDO had pre-determined the appropriate award

61.  The applicant raises three arguments on the FDO’s decision.  The first one is that the FDO, in deciding to issue a warning for dismissal valid for three years, had found that the applicant’s conduct was below that of a supervisory officer. In so doing, the FDO had pre-determined the question of the appropriate punishment, or there was a real danger that he had already made up his mind on it.

62.  In advancing this argument, the applicant relies on the decision of Kam Wai Hung v. Secretary of Justice unreported CACV264/2002 (13.2.2003).  In that case, in his memo inviting the defaulter to show cause why the award of punishment should not be increased, the FDO stated that he had totally lost confidence in the defaulter’s suitability to continue to perform constabulary duties and that terminatory awards are therefore necessary to reflect the gravity and serious nature of the misconduct.  Rogers VP, giving the judgment of the Court of Appeal, considered it was apt to apply a test akin to the test of apparent bias set out in R v Gough [1993] AC 646 by asking whether there was a real danger that the FDO had already decided that the defaulter’s position of a police officer should be terminated, irrespective of what submissions were subsequently made.  The Court concluded that the memo indicated that the FDO had already made up his mind to increase the award to a terminatory award.

63.  What the FDO had stated in his deliberations annexed to the memo inviting the applicant to show cause is quite different from what the FDO had stated in Kam Wai Hung’s case.  In the present case, the FDO stated that he had doubts on the applicant’s overall suitability to remain as a supervisory officer and he considered that the award of severe reprimand might be inadequate to reflect the seriousness of the case.  On this basis, he asked the applicant to show cause why the award should not be substituted with an award of reduction in rank.  Applying the test set out in Kam Wai Hung’s case, I do not agree that there was a real danger that the FDO’s mind was closed.  Evidently, the suitability of the applicant to act as a supervisory officer is the most relevant factor when considering whether an award of reduction of rank should be imposed.  In alluding to his doubts over the applicant’s suitability as a supervisory officer as explaining the decision to ask the applicant to show cause, the FDO’s expression on the point cannot be seen as a foregone conclusion.

64.  Additionally, the FDO is not required to give the applicant an opportunity to show cause before issuing the warning for dismissal, which is an administrative measure.  Thus as Mr Wan points out, the fact that the FDO explained his decision to issue the warning for dismissal for a period of three years by reference to the severity of the transgression cannot be viewed as an indication that he was not open to submissions from the applicant regarding the appropriate punishment to be imposed.

Ground (11) : Regulation 14(5) 

65.  The second argument relied on by the applicant is that the FDO had failed to comply with Regulation 14(5) of the Regulations in that he took more than 14 days after receipt of the Defaulter Report before he notified the applicant of his decision.

66.  Regulation 14(5) provides that the FDO shall exercise the power provided under the Regulation “[w]ithin 14 days of the receipt by him of a Defaulter Report forwarded to him” by a senior police officer under paragraph (4)”.                                                         

67.  It is the applicant’s argument that the 14 days under Regulation 14(5) start to run from the time the staff of the FDO received the Defaulter Report. In this case, since the Discipline Division at the Police Headquarter received the Defaulter Report on 24 January 2005, it was more than 14 days when the FDO made his decision in March 2005.

68.  The respondent, on the other hand, argued that the 14 days should only start to run when the Defaulter Report was received by the FDO himself.  From the papers before the court, the earliest date on which the FDO received the Defaulter Report was 24 February 2005.  The 14 days requirement was not breached. 

69.  In my view, the wording of Regulation 14(5) is clear and unambiguous.  It refers to the receipt of the Defaulter Report by “him”, which is a reference to the FDO.  It is a reference to the FDO as an individual. The 14 days period should count from the date the FDO himself was in receipt of the Defaulter Report. This construction is further supported by Regulation 2 which defines the FDO as a police officer appointed by the Commissioner for the purpose of the Regulations. It follows that this argument cannot stand.

Ground (12) : Severity of the FDO’s award

70.  The third argument on the FDO’s decision is that the award is too severe and disproportionate to the gravity of the situation.  In making this challenge, Mr Lo accepts that there is a long line of authorities holding that the court in judicial review will only interfere with the punishments passed by a disciplinary body if the award is severe beyond any rational relationship to the seriousness of the offence and the situation of the offender: see for instance, Au Yeung Kwok Hing v. Attorney General unreported CACV 205/1994 (7.2.1995), Ng Wai Sang v. Secretary of Justice [1998] 3HKC 501, and Tsang Hing Shing v. Commissioner of Police unreported CACV 192/2003 (17.12.2004).   Mr Lo however relied on the recent Court of Appeal case of Lau Koon Leung v. Medical Council of Hong Kong [2006] 3HKC 274 and argues that it demonstrates a new approach of the court not deferring to the judgment of the disciplinary body more than is warranted by the circumstances.

71.  Lau Koon Leung’s case is an appeal to the Court of Appeal from the decision of the Medical Council under section 26(1) of the Medical Registration Ordinance.  Cheung JA in his dissenting judgment (at para.29) referred to a new approach to appeals from the penalties imposed by the Medical Council that requires the court to take into account all matters raised by the applicant in the appeal and to decide whether the penalty was appropriate and necessary in the public interest or was excessive and disproportionate.  Yuen JA and Lam J who gave the majority decision took the view that the court should remain cautious when dealing with appeals from orders of penalties and that the previous decisions in which the court recognized that the primary responsibility of discipline rested with the disciplinary bodies remain good law.

72.  In my view, Lau Koon Leung’s case does not assist the applicant.  Firstly, the new approach that was canvassed by Cheung JA is in the context of appeals against decisions of the Medical Council under section 26(1) of the Medical Registration Ordinance, which gives the Court of Appeal wide power to affirm, reverse or vary the order appealed against. The court in judicial review has a much more limited role and different considerations should apply.  Secondly, despite that Cheung JA favoured the adoption of the new approach, his view was not shared by the majority.

73.  On the facts of the present case, while it can be said that the award of reduction in rank is not a lenient punishment, having regard to the fact that the applicant will soon reach retirement, I do not accept that the award is unduly severe and outrageously disproportionate as to justify the intervention by the court.  There is a lot to be said in favour of the views taken by the FDO and the DCP(Man) that, as an experienced supervisory police officer, to resort to lies and misrepresentations in order to put off a request for help from a member of the public is clearly a dishonourable conduct.  The gravity of the matter is increased by the fact that the lies and misrepresentations were repeatedly made.  The FDO was justified in his view that the conduct reflected adversely on the applicant’s suitability to act as a supervisory officer.  The award of reduction in rank was one which was within the range of awards open to the FDO.  There is no basis to interfere with the decision.

Ground (13) : The decision of DCP(Man)

74.  Finally, the DCP(Man)’s decision is challenged on the basis that he merely ratified the guilty finding and award without investigating the entire Defaulter Report.  There is no substance in this ground as it is apparent from the reasons given by the DCP(Man) that he was well conversant with the case and the issues involved in the appeal.                        

Conclusion

75.  For the above reasons, the application for judicial review is dismissed.  There is an order nisi that the applicant pays the respondent the costs of the application, to be taxed if not agreed.  The applicant’s own costs is to be taxed under the Legal Aid Regulations.