YEUNG CHUNG MING v. COMMISSIONER OF POLICE

FACV No. 22 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 22 OF 2007 (CIVIL)

(ON APPEAL FROM CACV NO. 13 OF 2006)

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J U D G M E N T

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Chief Justice Li:

1.  The appellant was a police sergeant.  Following the laying of criminal charges against him, the Commissioner of Police, the respondent,  (“the Commissioner”) interdicted him.  After considering the appellant’s representations, the Commissioner directed that 10% of his pay should be withheld during the period of interdiction.  Having considered the appellant’s further representations, the Commissioner reduced the percentage of pay withheld to 7%.  The appellant was later convicted whereupon he ceased to be paid.  Subsequently, he was dismissed from the Police Force.

2.  The appellant does not question the validity of the Commissioner’s decision to interdict him.  But he challenges the Commissioner’s decision to withhold his pay by 7% prior to his conviction. 

3.  The sole ground relied on by the appellant in this appeal in support of his challenge to the Commissioner’s decision is the alleged violation of the constitutional guarantee of the presumption of innocence.  It is contended that the statutory provision conferring on the Commissioner the power to withhold up to half the pay of an interdicted officer who has been charged with criminal offences breaches the presumption of innocence and is unconstitutional.  The Commissioner’s decision in the present case is accordingly said to be unconstitutional.  The same arguments based on the presumption of innocence are advanced to attack both the provision itself and the decision made under it in the present case.  If the provision is constitutional, no separate arguments have been addressed in this appeal to suggest that the actual decision is in breach of the presumption.

4.  Before the Court of Appeal, the appellant also maintained that the Commissioner’s policy relating to the exercise of his discretion to withhold pay was flawed and that he had fettered his discretion.  But Mr McCoy SC for the appellant quite properly has not pursued these arguments before the Court.

The statutory scheme

5.  The decisions to interdict the appellant and to withhold 7% of his pay were made by the Commissioner under s. 17 of the Police Force Ordinance, Cap 232, (“the Ordinance”).  The section provides:

(1)   If the Commissioner considers that the public interest requires that a police officer other than a gazetted police officer should cease to exercise the powers and functions of his office forthwith, he may interdict the police officer from the exercise of such powers and functions where –

(a)  disciplinary or criminal proceedings are being instituted or are about to be instituted against such officer; or

(b) such officer is the subject of an inquiry into his conduct in connexion with his duties as a police officer or the subject of an investigation into any report, allegation or suspicion that he has committed an offence.

(2)   A police officer who has been interdicted under –

(a)  subsection (1)(a), shall be allowed to receive such proportion of his pay, not being less than one-half, as the Commissioner shall in every case direct, until such time as he may be convicted of an offence whereupon the matter shall be determined under section 37(4);

(b) subsection (1)(b), shall not on that account receive less than his full pay.

(3)   If the proceedings, inquiry or investigation do not result in the dismissal or other punishment of such officer, he shall be entitled to the full amount of the pay which he would have received if he had not been interdicted.

(4)   If the proceedings, inquiry or investigation result in punishment other than the dismissal of such officer, he may be paid such proportion of the pay withheld as a result of his interdiction as the Commissioner may direct.

A gazetted officer is defined to include officers of all ranks from and including the Commissioner down to and including superintendent.  Section 3.  The scheme provided for in s. 17 does not apply to gazetted officers and is applicable only to police officers below the rank of superintendent[1].

6.  The statutory scheme relates to both disciplinary and criminal proceedings.  The present case is only concerned with criminal proceedings and it is unnecessary to discuss the position regarding disciplinary proceedings.

7.  Under the statutory scheme, the Commissioner’s power to interdict an officer is triggered where criminal proceedings are being or are about to be instituted against him; in other words, when criminal proceedings have been instituted or when their institution is imminent. Section 17(1)(a).  It is also triggered at the investigatory stage when an officer is the subject of an investigation into any report, allegation or suspicion that he has committed an offence.  Section 17(1)(b).  The test is whether the Commissioner considers that the public interest requires the officer concerned to cease to exercise the powers and functions of his office forthwith.  There is no question of any automatic interdiction.  The Commissioner has a discretionary power to interdict if he considers that the public interest so requires.  Where he decides to do so, the officer is interdicted from the exercise of the powers and functions of his office.  As has been noted, the appellant accepts the validity of the Commissioner’s decision to interdict him.

8.  Where an officer has been interdicted, the position regarding his pay depends on whether he is interdicted at the stage when he is being investigated for having committed an offence or at the later stage when criminal proceedings have been instituted or when their institution is imminent.  With interdiction at the investigatory stage, the officer must be paid in full.  There is no discretion to withhold any part of his pay.  Section 17(2)(b).  With interdiction at the later stage, s. 17(2)(a) provides that the officer

“shall be allowed to receive such proportion of his pay, not being less than one-half, as the Commissioner shall in every case direct, until such time as he may be convicted of an offence whereupon the matter shall be determined under section 37(4)."

This is the crucial provision in this appeal.  Under it, the Commissioner must direct in every case the proportion of pay, being not less than one-half, which the interdicted officer should receive pending the determination of the criminal proceedings.  The Commissioner has a discretion to decide the proportion of pay, if any, which should be withheld in the case in question pending such determination.

9.  At the conclusion of the criminal proceedings, if the officer is convicted, s. 17(2)(a) requires the matter to be determined under s. 37(4)[2].  The effect of that provisionis that the officer’s pay ceases upon conviction unless the Commissioner’s approval of payment is given.  Pay would cease unless the Commissioner decides that it should continue, notwithstanding the conviction.  If the officer is acquitted, he is entitled to the full amount of the pay withheld during his interdiction.  Section 17(3).

10.  The present case is concerned with an officer who had been charged with a criminal offence.  In summary, the position of such an officer under the statutory scheme is as follows :

(1) The Commissioner has a discretion to interdict him if he is satisfied that the public interest so requires. 

(2) If the officer is interdicted, the Commissioner must direct whether any proportion and if so, what proportion of his pay up to one-half, should be withheld.

(3) If the officer is convicted, his pay would cease unless the Commissioner decides that it should continue.  If he is acquitted, he is entitled to the full amount withheld during his interdiction.

The Commissioner’s policy

11.  Prior to June 2001, the Commissioner adopted the invariable practice of allowing interdicted police officers within the statutory scheme, that is, officers below the rank of superintendent, to receive their pay in full.  In his Report dated 12 October 2000, the Director of Audit considered that this practice was over-generous compared to the rest of the civil service (including police officers at the rank of superintendent and above) and recommended that the Commissioner should review his practice[3].   

12.  After a consultation exercise, the Commissioner issued a document on 30 May 2001 announcing a new policy on the withholding of pay of interdicted officers below the rank of superintendent who are subject to the statutory scheme.  The Commissioner stated that it remained the policy that a police officer should not be interdicted from duty “unless it is absolutely necessary to do so and it is clearly in the public interest”.  Where an officer has been interdicted following the laying of criminal charges, each case will be considered on its merits in deciding the direction to be given under s. 17(2)(a) on the withholding of pay.  It should be noted that the policy does not lay down any guideline of the proportion which should be withheld.  All relevant factors will be taken into account.  These will include but are not restricted to the following:

“(a) the potential adverse reaction of the general public to the Police Force continuing to give officers full pay whilst interdicted;

(b) the risk to the public purse;

(c) basic living expenses, e.g. food, rent, electricity, etc.;

(d) financial commitments incurred before interdiction, e.g. mortgage, insurance;

(e) income tax;

(f)   children support;

(g) alimony;

(h)   children education;

(i)   medical expenses;

(j)   staff morale; and

(k) characteristics of the individuals, such as length of service, and disciplinary records etc.”

It should be observed that the factor in (a), reasonably understood, is a reference to the need for the administration of the Police Force to command public confidence.  The new policy also sets out the procedure to be followed.  The procedure provides the officer with the opportunity to make representations before a decision is made and to seek a review of the decision after it has been made and also subsequently where there has been a change in the officer’s circumstances. 

The decision to withhold pay

13.  On 22 October 2003, the appellant was charged with two counts of fraud under s. 16A(1)(b) of the Theft Ordinance, Cap 210.  He was interdicted with effect from 24 October 2003.  He was invited to make representations on the withholding of pay.  In response, he submitted a letter and a completed form, setting out his financial commitments in detail and attaching supporting documents.  He noted that a bankruptcy order had been made against him on 18 December 2001 and objected to the withholding of any portion of his pay.

14.  The appellant’s representations were considered.  Most of the amounts he had declared as expenditure were accepted.  The Commissioner considered that 90% of his pay would be sufficient to cover his expenditure and decided to withhold 10% of his pay.  On the appellant’s request for a review, the Commissioner decided to reduce the percentage withheld to 7%, as his monthly commitment to pay salary tax had been underestimated when the original decision was made.  Pending the review, his pay was not reduced.  On 27 January 2004, the appellant was convicted of the two counts of fraud.  On conviction, his pay ceased pursuant to s. 37(4).  The amount of pay withheld for the few weeks between notification to the appellant of the decision on review and his conviction amounted to $2,211.68. 

The courts below

15.  Before the Court of First Instance (Reyes J), the appellant’s challenge to the constitutionality of the Commissioner’s decision to withhold pay succeeded.  [2006] 1 HKC 94.  At first instance, he did not seek to challenge the constitutionality of s. 17(2)(a) itself which confers on the Commissioner the power to withhold pay of an interdicted officer facing criminal charges.  Indeed, the appellant had not applied for leave to apply for judicial review on this ground.  Before the Court of Appeal (Tang VP, Hartmann and Lam JJ), he sought leave to challenge the constitutionality of s. 17(2)(a) but leave was refused.  That Court allowed the Commissioner’s appeal, holding the Commissioner’s decision to be constitutional, and granted the appellant leave to appeal to the Court.

Whether challenge to s. 17(2)(a) open

16.    On this appeal, the appellant has renewed his efforts to challenge the constitutionality of s. 17(2)(a) as it relates to an interdicted officer who has been charged with criminal offences.  As has been noted, this challenge was not made at first instance and leave to do so had been refused by the Court of Appeal.  In these circumstances, the Court would only allow such a challenge to be made in exceptional circumstances.  This is especially so in judicial review proceedings which have an initial leave requirement operating as an important filter.  See Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 at para 14.

17.  In the present appeal, the Court is satisfied that the requisite exceptional circumstances exist and accordingly, the appellant should be permitted to challenge the constitutionality of s. 17(2)(a).  First, there is no doubt that leave to apply for judicial review to challenge the constitutionality of s. 17(2)(a) would have been granted on the reasonable arguability threshold had it been applied for at the outset.  Secondly, the arguments advanced by the appellant to challenge the constitutionality of the Commissioner’s decision to withhold pay on the ground that it violates the presumption of innocence necessarily involve a challenge to the statutory provision conferring the power.  A satisfactory resolution of the appeal therefore requires a consideration of the constitutionality of the provision.  Thirdly, the Commissioner is in no way prejudiced as he was allowed to file affidavit evidence and a supplemental case on the question.

The constitutional provisions

18. Article 87(2) of the Basic Law provides:

“Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs.”

The right to be presumed innocent is also enshrined in the Hong Kong Bill of Rights Ordinance (“BORO”) which, as required by Article 39 of the Basic Law, implements the provisions of the International Covenant on Civil and Political Rights (“ICCPR”) as applied to Hong Kong.  Article 11(1) of BORO, which corresponds with Article 14(2) of the ICCPR, provides:

“Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”

For present purposes, there is no difference between the presumption of innocence as it is protected by the Basic Law and BORO.

The presumption of innocence

19. The constitutional guarantee of the right to be presumed innocent is deeply rooted in the common law and is the basis of the cardinal rule that the prosecution has the burden of proving the defendant’s guilt of the offence charged beyond reasonable doubt.  HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at para 23.  The right to be presumed innocent is an essential element of the individual’s right to a fair trial. 

20. In Allenet de Ribemont v France (1995) 20 EHRR 557, during a press conference which was widely reported, the Minister of the Interior and senior police officers identified the applicant as one of the instigators of the murder of a French Member of Parliament.  The applicant had just been arrested.  He was later charged with aiding and abetting the murder and was eventually released and discharged.  The European Court of Human Rights (“the ECHR”) had to consider whether the statements made at the press conference infringed the presumption of innocence enshrined in Article 6(2)[4].  The Court observed that the presumption is one of the elements of a fair trial that is required by Article 6(1) and, citing its earlier decision in Minelli v Switzerland (1983) 5 EHRR 554[5], stated :  

“It will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law.  It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty.” (at para 35)

The Court reiterated that Convention rights, including the presumption of innocence in Article 6(2), must be interpreted so as to guarantee rights which are practical and effective as opposed to theoretical and illusory and held that it may be infringed not only by courts but also by other public authorities. 

21. The Court held that the applicant was a person “charged with a criminal offence” within Article 6(2), since his arrest and detention in police custody formed part of the judicial investigation by an investigating judge which had already begun, although he had not yet been charged.  (See para 37.)  It noted that some of the highest ranking officers in the French police referred to the applicant, “without any qualification or reservation”, as one of the instigators of a murder and thus an accomplice in that murder and concluded :

“This was clearly a declaration of the applicant’s guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority.  There has therefore been a breach of Article 6(2).” (at para 41)

22. Mr McCoy SC submits that in Allenet de Ribemont and Minelli, the ECHR had held that the presumption of innocence would be violated if the authority concerned appeared to treat the person charged on the basis that he might be guilty.  This is plainly incorrect.  The ECHR had held that the presumption would only be breached if the authority had taken the view that the person charged is guilty.

23. The decision in Allenet de Ribemont v France is consistent with the earlier decision of the European Commission of Human Rights[6] in Krause v Switzerland (Application No. 7986/77) (1978) 13 DR 73.  The Commission observed that the application of the presumption of innocence is wider than a procedural guarantee in criminal procedure. 

“It is a fundamental principle embodied in this Article which protects everybody against being treated by public officials as being guilty of an offence before this is established according to law by a competent court.  Article 6(2), therefore, may be violated by public officials if they declare that somebody is responsible for criminal acts without a court having found so.  This does not mean, of course, that the authorities may not inform the public about criminal investigations.  They do not violate Article 6(2) if they state that a suspicion exists, that people have been arrested, that they have confessed etc.  What is excluded, however, is a formal declaration that somebody is guilty.” (at p.75-6)

As the statements in question made by Swiss officials should be understood merely as information provided by the Government as to the basis of the suspicion against the applicant and the announcement of the trial which would have to take place, it held that the presumption of innocence had not been violated (at p.76). 

The appellant’s test

24. As is common ground, the Commissioner is a public authority whose action may infringe the right to be presumed innocent of a person charged with criminal offences.  The issue is whether the statutory power vested in the Commissioner by s. 17(2)(a) to withhold the pay of an interdicted officer who has been charged with criminal charges infringes the presumption of innocence.  The critical question is the proper test to be applied in judging whether the Commissioner’s decision in withholding pay as contemplated by the provision violates the presumption.

25. Mr McCoy SC submits that in deciding whether any decision of a State organ in relation to a person charged infringes his right to be presumed innocent, the test is as follows :

“After X has been charged with a criminal offence and before a verdict in that trial, any decision by the State organs in relation to X which adversely interferes with X and which could only be made because X is a person charged with a criminal offence, violates the substantive content of X’s right to the presumption of innocence, if it appears to treat X as a person who might be guilty, unless such decision is demonstrably necessary to achieve a legitimate societal objective that displaces X’s right.”

Applying this approach, he argues that as any decision of the Commissioner to withhold the pay of an interdicted officer facing criminal charges could only be taken because he has been charged and as such a decision appears to treat him as a person who might be guilty, his right to be presumed innocent would be violated unless such a decision is demonstrably necessary to achieve a legitimate societal objective.  As no such necessity can be demonstrated, any decision to withhold pay as envisaged by s. 17(2)(a) would violate the presumption and the provision is accordingly unconstitutional.

26. The test put forward by the appellant must be rejected.  It is not supported by any authority and cannot be accepted as a matter of principle.

27. As has been pointed out, the presumption of innocence is essentially an element of a fair trial and is the basis of the cardinal rule that the prosecution has the burden of proving the guilt of the accused beyond reasonable doubt.  Where a person has been charged with a criminal offence, he is only at the beginning of due process.  He is presumed to be innocent and is entitled to a fair trial at which he might be found guilty or might be acquitted.

28. Where a public authority takes action in relation to a person charged merely on the basis that he might be guilty, his presumption of innocence would not be violated.  By taking action on this basis, the public authority would not be prejudging his guilt in any way prior to the trial and the fairness of his trial would not be prejudiced.  Indeed, the very act of charging a person with criminal offences involves a view by the prosecuting authority that he might be guilty.  The approach on the appellant’s test that the presumption of innocence would be violated where action is taken merely on the basis that the person charged might be guilty and that such violation has to be justified is not warranted.

The proper test

29. Taking into account the decisions of the ECHR, the proper test to be applied in the present context in considering whether s. 17(2)(a) infringes the constitutional guarantee of the presumption of innocence should be stated as follows : Whether the Commissioner’s decision to withhold any proportion of the pay of an interdicted officer who has been charged with criminal offences as contemplated by the provision implies a view that the person charged is guilty.  The test is of course an objective one.

30. In applying this test, it is important to consider the Commissioner’s decision in the light of the circumstances leading to it as contemplated by the statutory scheme.  The officer has been interdicted on the ground that the Commissioner considers that the public interest requires his interdiction.  Having been interdicted, he is relieved from his duties and is doing no work.  A decision by the Commissioner to withhold a proportion of the officer’s pay, not exceeding half, taken pursuant to s. 17(2)(a) in such circumstances as envisaged by the scheme plainly does not imply any view that he is guilty.

31. The Commissioner’s decision merely implies a view that he might be found guilty after trial.  There is no question of any prejudgment of his guilt or any prejudice to his fair trial at which he is presumed to be innocent.  Such a decision also envisages that he might be acquitted after trial as the statutory scheme expressly provides that on acquittal, he shall be entitled to the full amount of the pay withheld.  Accordingly, a decision to withhold any proportion of the pay of an interdicted officer facing criminal charges as contemplated by s. 17(2)(a) would not violate the presumption of innocence.  Therefore, the provision is constitutional and the decision in the present case is also constitutional.  Indeed, Mr McCoy fairly concedes that if the correct test in judging the validity of the provision involves the implication of a view on the part of the public authority that the person charged is guilty, then the test would not be satisfied.

32. Accordingly, the appeal is dismissed with costs, with an order for the taxation of the appellant’s costs in accordance with Legal Aid Regulations. 

Mr Justice Bokhary PJ:

33. What is the true scope of the protection conferred by the presumption of innocence?  On that depends the success of this constitutional challenge.  The legislation being challenged is contained in s.17 of the Police Force Ordinance, Cap.232.  This section deals with non-gazetted police officers (i.e. police officers below the rank of superintendent).  As relevant to this case, it provides as follows.  Where disciplinary or criminal proceedings are being or are about to be instituted against a non-gazetted police officer, the Commissioner of Police may interdict (i.e. suspend) him pending trial.  Furthermore the Commissioner may withhold up to half of his pay during suspension. 

34.  Like anybody else, a police officer is presumed innocent unless and until he is convicted.  If he is convicted, it would be either on a guilty plea or by a guilty verdict reached after a trial, which must be a fair trial.  It would be in a disciplinary tribunal if the proceedings are disciplinary, in a court of justice if the proceedings are criminal. 

35.  This appellant was a sergeant in the police force.  Criminal proceedings were brought against him.  He was suspended pending his trial.  And 7% of his pay was withheld from him during suspension.  He does not challenge the constitutionality of s.17 in so far as it permits suspension pending trial.  What he challenges is the constitutionality of the section in so far as it permits the withholding of pay during suspension. 

36.  As it happens, the appellant was eventually convicted and dismissed from the police force.  That does not detract from the legal merits of his constitutional challenge.  Indeed, a position like his may be the natural one for bringing such a challenge.  Where criminal or disciplinary charges are dropped or dismissed, a police officer whose pay was withheld is likely to receive his money in full, albeit belatedly.  Having emerged from one set of proceedings he may have no appetite for starting another by way of a constitutional challenge.  Pursuing or contesting legal proceedings can be such a strain that a person chooses instead just to get on with the rest of his life.  As for police officers against whom disciplinary or criminal proceedings are pending, they may well prefer to concentrate on those proceedings without the distraction involved in bringing a constitutional challenge.  Finally, suppose every police officer has standing to challenge the constitutionality of section 17 type powers.  Even so, no police officer is likely to relish putting himself forward as someone who could, even if only in theory, end up in a section 17 type of situation.  The appellant is not a hero or a martyr, but he is suitably placed to bring this case – which is now not so much about him as about the constitution.

Scope of the presumption of innocence

37.  Just because the presumption of innocence is a key component of our criminal justice system, it does not follow that the protection which it confers is strictly confined to criminal proceedings.  Such protection obviously extends at least to include civil matters connected with such proceedings.  Take, for instance, the decision of the European Court of Human Rights in Allenet de Ribemont v. France (1995) 20 EHRR 557.  It concerned the presumption of innocence guaranteed by art.6(2) of the European Convention on Human Rights.  At a press conference held following Mr de Ribemont’s arrest, the French Minister of Interior and senior police officers identified Mr de Ribemont as one of the instigators of the murder of a French politician. 

38.  As it turned out, Mr de Ribemont was never brought to trial.  So his complaint was not of the kind made to the European Commission on Human Rights in Petra Krause v. Switzerland (1978) 13 DR 73.  Ms Krause’s complaint was that pre-trial declarations of her guilt made publicly by Swiss officials, particularly the Federal Minister of Justice, had created a danger that she would not receive a fair trial.  Mr de Ribemont’s complaint was that the violation of his presumption of innocence by what had been said against him at the press conference had resulted in detriment to him in terms of both pecuniary and non-pecuniary loss.  The European Court of Human Rights accepted that to this extent.  They held that the trust placed in Mr de Ribemont by the people he did business with had been diminished so that it became more difficult for him to pursue his occupation.  And for such detriment, they awarded him compensation in the sum of 2 million French francs. 

39.  It can be seen that de Ribemont’s case is a development from and considerably beyond Krause’s case.  Such a process of development and its continuation are in the nature of the law.  The law moves forward, especially to provide better protection and enforcement of fundamental rights and freedoms.

40.  Like the withholding of pay, Mr de Ribemont’s complaint concerns money.  And the withholding of some of the appellant’s pay during suspension is at least as closely connected with criminal proceedings as the detriment suffered by Mr de Ribemont and the compensation which he was awarded for it.  Some situations are composed of both civil and criminal elements.  Compensation is civil, and so is pay.

41.  At least as much as statements, actions like the withholding of pay can violate a person’s right to be presumed innocent.  It is to be observed that in de Ribemont’s case at p.574, the European Court of Human Rights, without questioning the correctness of the view taken by the European Commission on Human Rights, said :

 “The Commission acknowledged that the principle of presumption of innocence was above all a procedural safeguard in criminal proceedings, but took the view that its scope was more extensive, in that it imposed obligations not only on criminal courts determining criminal charges but also on other authorities”.

42.  As I see it, the presumption of innocence reflects the way in which the members of a free society generally approach each other unless and until there is good reason otherwise in any particular instance.  And even then, that general approach is departed from only to the extent called for by such reason.  The presumption of innocence stands in the way of arbitrary treatment generally.  Many forms of treatment are recognised as arbitrary precisely because the persons subjected to it are presumed innocent.  In a free society, persons are surrounded and protected by a network of interrelated rights and freedoms of a fundamental nature.  Turning to the jurisprudence of the United States Supreme Court, one can usefully borrow the expression “rational continuum” used by Harlan J in Poe v. Ullman 367 US 497 (1961) at p.543.  So the point which I have just made can also be expressed in these terms.  Fundamental rights and freedoms form – and derive their true strength from being – a rational continuum.  It is true that Harlan J was speaking in the course of a dissent.  But I am encouraged not only by the obvious force of what he said.  I am also encouraged by seeing it described in Prof. Laurence H Tribe’s American Constitutional Law, 3rd ed. (2000), vol.1 at p.43 as an oft-quoted observation.

43.  If a society is to remain truly free, the entirety of its network or continuum of fundamental rights and freedoms must be carefully kept in good repair.  The thing to fear is too narrow an interpretation of the presumption of innocence, not too wide an interpretation of it. 

44.  Where statements alone are concerned, the position may be a stark one.  It may be that, at least in general, a statement would violate a person’s right to be presumed innocent if, but only if, it goes so far as to assert that he is guilty.  But neither that, nor any mere variant of it, can provide a test of universal application.  Something wider is needed.  There is substance in the appellant’s point developed on the proposition formulated thus in his printed case : “If a person is treated, by the conduct of the State, as if he is guilty or as if it does not matter whether he is guilty or not, this infringes the presumption of innocence”. (Emphasis supplied).  Indifference to a fundamental right or freedom is more insidious – and in that sense can be even more dangerous – than any open derogation from that right or freedom.

Not treating a person as if his innocence is accepted

45.  Threats to fundamental rights and freedoms can come in unpredictable shapes and sizes.  A constitution’s protection potential must not be cramped.  Whenever a person is treated otherwise than he would be treated if his innocence were accepted, it is necessary to examine such treatment in order to determine whether – with considerations of legitimate need, rationality and proportionality borne in mind – it is conformable with the presumption of innocence.  Such an approach is not destructive of anything worth preserving.  Arresting a person on due suspicion of his having committed a crime involves treating him otherwise than he would be treated if his innocence were accepted.  So does denying him bail or granting him bail only upon conditions.  Indeed, so does the very act of trying him.  But it is of course perfectly clear that the presumption of innocence does not stand in the way of those things.  After all, the presumption of innocence cannot possibly be meant to prevent a person being tried effectively. 

Suspension pending trial

46.  Although suspension pending trial does not involve treating a police officer as if he were taken to be guilty, it does involve treating him otherwise than he would be treated if his innocence were accepted.  Nevertheless, the appellant is quite right not to challenge the constitutionality of the power to suspend pending trial.  It is in the legitimate interest of every police officer that the police force enjoys public confidence.  If a police officer were to remain on duty pending trial, that could – depending on the circumstances – seriously erode public confidence in the police force.  It could also – again depending on the circumstances – subject the police officer himself to a mental burden detrimental to his best interests as well as the public interest. 

47.  One looks at the nature and purpose of the presumption of innocence and at the nature and purpose of a power to suspend pending trial.  Doing that, it becomes obvious that they are compatible, there being a legitimate need for such a power and the power being rational and proportionate to that need.  The power is therefore conformable with the presumption of innocence.  It is constitutional.  Whether any given exercise of the power is open to attack on administrative law grounds depends on the circumstances of each case.  There is no ground for any such attack in the present case.

Withholding of pay during suspension

48.  What about the withholding of pay during suspension?  Plainly, it involves treating a police officer otherwise than he would be treated if his innocence were accepted.  And I do not think that it can be justified on the basis that it is merely an incident of suspension.  After all, there can be suspension without any withholding of pay.  And my view that the power to suspend is conformable with the presumption of innocence is reached on the basis of suspension pure and simple.

49.  There is nothing obviously compatible between the nature and purpose of the presumption of innocence and the nature and purpose of any power to withhold pay, whether in whole or in part, during suspension.  Do they appear to be compatible upon scrutiny, with considerations of legitimate need, rationality and proportionality borne in mind?  The nature of the withholding of some pay during suspension needs little or no elaboration.  Quite simply, it means that part of a police officer’s source of livelihood is withheld from him while he awaits trial and because he is awaiting trial.  It is true that that only happens, or at least is only meant to happen, after some effort to avoid undue hardship.  But then no hardship at all is due, since the police officer concerned is presumed innocent. It is nowhere near an adequate answer to say that any pay withheld would eventually be paid if and when the proceedings come to an end without a conviction.  For many people – police officers among them, I dare say – a steady flow of full and uninterrupted income is important, sometimes vitally so, to them and their dependants.

50.  As for the purpose of withholding pay during suspension, the Government commends the Court of Appeal’s view that public sentiment is that “officers who were eventually found guilty and dismissed, should not be paid in the meantime, without any liability to repay”.  But there is an immediate problem with looking at it like that.  Quite simply, it is that at the time when a power to withhold some pay during suspension would be exercised, the police officer concerned would not have been found guilty and would, on the contrary, be presumed innocent.  Moreover, any view that there ought to be repayment in the event of conviction and dismissal should be addressed by considering whether there should be a power to obtain repayment in that event.  Nevertheless, one of the two objectives which the Government says is to be attained by withholding some pay during suspension involves a notion as to public perception. 

51.  In that connection, I note with interest the apparently different thinking of two Canadian courts.  The thinking of the Ontario Court of Appeal in Mahood v. Hamilton-Wentworth Regional Board of Police Commissioners (1977) 74 DLR (3d) 513 at p.516 was this.  Even where a police officer has been convicted of an offence and suspended as a result of such conviction, withholding his pay pending appeal may be as offensive to the public good as paying him pending appeal.  That, let it be duly noted, refers to the position even after conviction.  In Bennest v. Burnaby School District No.41 (1997) 30 BCLR (3d) 372 at para.24, however, a judge sitting at first instance in British Columbia said that he had “some difficulty with the concept that a person should be paid for holding an office when they are not performing any of the duties of the office and it is necessary to pay another person to perform those duties”.  Such a matter naturally involves an element of instinctive reaction.  It is not a matter on which uniformity is to be expected among people whether they be lawyers or non-lawyers.

52.  I see nothing to warrant any conclusion that the Hong Kong public as a whole, or even a majority of our people, generally favour the withholding of pay, whether totally or partially, during suspension.  Some people may consider it a good thing; some people may consider it a bad thing; some people may not have any firm view on it one way or the other; and some people may want to learn more about the pros and cons of it.  The public will realise that the picture of police officers in the dock is not wholly made up of senior officers eventually convicted on corruption charges.  There are also cases like that of the young constable, a client of mine three decades ago, who was acquitted, on a submission of no case to answer, of the murder of a fugitive whom he shot when that man turned on him with a weapon after a long and dangerous chase.  It was a tragedy, but not a crime.

53.  The second objective suggested by the Government has to do with defraying the expense of paying someone else to do the suspended police officer’s work.  But the evidence on this is very general if not vague.  Moreover, the impact on a suspended police officer of withholding part of his pay is inherently likely to be far in excess of any impact on the public purse of not withholding any of his pay.

54.  Despite efforts to avoid undue hardship, the impact on a suspended police officer of withholding part of his pay can be heavy even if it is for only a short period.  But the impact on the public purse of not withholding any of his pay is, in the nature of things, unlikely to be felt to any material degree unless the period involved is long.  As to that, this to be remembered.  Just as there is a right to be presumed innocent, so is there a right to be tried without delay.  At least in regard to criminal proceedings, art.87 of our constitution the Basic Law expressly guarantees these two rights in the same sentence.

55.  Under our system, there should, ideally, be no delay at all in any sort of proceedings.  But, regrettably, undue delay does sometimes occur in all sorts of proceedings.  Just imagine a period of suspension lasting so long that the impact on the public purse of not withholding any pay would be felt to a material degree.  The impact on a suspended police officer of withholding some of his pay for so long a period is likely to be extremely heavy if not crushing.  That would be the likelihood unless a merely nominal or token amount were withheld.  But the Government has not suggested – nor could it have sensibly suggested – that the legislation could possibly be meant for anything so pointless and petty.  The legislation says up to half of the suspended police officer’s pay.  Everybody knows that justice delayed is justice denied.  Justice is denied to the extent of the delay and its consequences.  For people facing charges, justice comes, one way or the other, on the day when the charges are determined.  If that day is delayed, the denial of justice to them is measured not only by the length of the delay but by also – and sometimes more so – the rigours of their predicament while awaiting judgment.

56.  Suspension pending trial is justifiable on the basis, but only on the basis, which I have explained.  But it is not “for proper cause” in the sense used in The Dispensers’ Case (Lam Yuk-ming & ors v. AG [1980] HKLR 815).  Giving the judgment of the Court of Appeal in that case, Roberts CJ asked rhetorically (at p.823), “Assuming that his suspension has been for proper cause, why should he be paid, when he has done no work?”  To understand that, it is necessary to know that the dispensers were suspended under reg.611 of the Civil Service Regulations which provided :

“Any officer who, in connection with a trade dispute, refuses or omits to perform for any period any or any part of the usual duties of his office, may be suspended from duty by the Secretary for the Civil Service and shall not be eligible to receive salary in respect of the period for which he remains suspended.”

That does not involve anything, whether of commission or omission, that remains to be proved.  An officer whose pay is withheld under such a regulation is one who chooses not to work.  That situation is wholly different from the present one.

57.  Also wholly different from the present situation is the one in Wallwork v. Fielding [1922] 2 KB 66 decided by the English Court of Appeal.  The police officer in that case refused to work.  And his suspension without pay was for such refusal.  By complete contrast, a police officer who is suspended pending trial does not choose to refrain from working.  He is prevented from working.  And unless and until he is convicted, it simply cannot be said that such prevention is through any fault of his own.

58.  The tendency of every principle is in favour of the appellant’s stance.  First of all, a constitution protects the weak.  And in an employment relationship, whether in the private sector or the public sector, the employee is normally by far the weaker party.  The Government has rightly refrained from suggesting that the State as an employer is less concerned than private sector employers with the welfare of employees.  I pause to mention, even if only in passing, the observations in Sandra Fredman and Gillian S Morris : The State as Employer (1989) at p.10 about the State’s role in setting an example for the private sector as a model employer.

59.  Secondly, constitutional rights call for a generous interpretation bringing out their benefits in full measure.  And the right to be presumed innocent is prominent even in the company of other constitutional rights.

60.  Thirdly and finally, contractual rights, especially those of the weak, deserve due protection against legislative inroads.  Just as such protection may be accorded through the interpretation of the statute, so may it be accorded through a review of the statute’s constitutionality.  In each context, the starting point is this.  The normal and natural position is that an employee should be paid his wages – and paid them in full – unless and until he is lawfully dismissed.

61.  On the foregoing principles, both the power to suspend a police officer pending trial and the power to withhold part of his pay during suspension call for careful examination.  And just because the former passes, it does not follow that latter will pass.

62.  Upon scrutiny – and with considerations of legitimate need, rationality and proportionality borne in mind – I have come to the conclusion that the nature and purpose of a power to withhold part of a police officer’s pay during suspension is not conformable with the nature and purpose of the presumption of innocence.  This is so whether the charges are criminal or disciplinary, for in either case he is presumed innocent.  The context is that of his fundamental and entrenched right to be presumed innocent.  In this context, withholding any of his pay during suspension, whether pending criminal proceedings or disciplinary proceedings, is a step too far.  It is unconstitutional.

63.  Having stated my view that the appellant succeeds on the basis of the presumption of innocence, I should guard against giving the impression of suggesting that there is no other constitutional right or freedom on which he could successfully rely if necessary.   So I merely mention, by way of example, the right to work.  Article 39 of the Basic Law provides that the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force and be implemented through the laws of Hong Kong.  And art.6 of that international covenant expressly recognises the right to work.  I have given it as my view that withholding any of a police officer’s pay during suspension is a step too far against his right to be presumed innocent.  Might it be that withholding any of a police officer’s pay during suspension is also a step too far against his right to work?  That, for example, I would leave open.

64.  In the present case there is no direct challenge to the constitutionality of the law providing or purporting to provide for the withholding of up to half the pay of gazetted police officers (i.e. police officers of superintendent rank and above) during suspension.  I therefore refrain from offering any formal declaration in regard to that law.

Conclusion

65.  For the reasons which I have given in regard to the presumption of innocence, I would allow the appeal to (i) declare that s.17 of the Police Force Ordinance is unconstitutional in so far as it provides for any withholding of a police officer’s pay during suspension; (ii) restore Reyes J’s order quashing the Commissioner’s directions to withhold part of the appellant’s pay during his suspension; (iii) award the appellant costs here and below; and (iv) order legal aid taxation of his costs.

Mr Justice Chan PJ:

66. I agree with the judgment of the Chief Justice.

Mr Justice Ribeiro PJ:

67. I agree with the judgment of the Chief Justice.

Lord Millett NPJ:

68. I agree with the judgment of the Chief Justice.

Chief Justice Li:

69. The Court (with Mr Justice Bokhary PJ dissenting) dismisses the appeal with costs, with an order for the taxation of the appellant’s costs in accordance with Legal Aid Regulations.

[1] The power to interdict a gazetted police officer and to withhold up to half of his pay whilst interdicted is vested in the Chief Executive who may delegate this power.  Sections 13 and 19 of the Public Service (Administration) Order. 

[2] Section 37(4) provides:   “No pay or allowance shall be payable to any police officer following the date of the finding by a court in criminal proceedings that a charge against such officer in respect of a criminal offence has been proved against him unless the approval of the Commissioner of such payment be given.”

[3] See the Director of Audit’s Report No 35 dated 12 October 2000 (Chapter 8) on the interdiction of government officers.

[4] Article 6(2) of the European Convention on Human Rights provides :

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

[5]  In Minelli v Switzerland, the ECHR held that the trial court’s order that the applicant should bear part of the costs of the criminal proceedings against him, which had been terminated because of limitation, infringed his presumption of innocence as the order had been made on the basis that the court was satisfied of his guilt.  It stated at para 37 :

“In the Court’s judgment, the presumption of innocence will be violated if, without the accused’s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty.  This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty… ”

[6] By virtue of the Eleventh Protocol to the European Convention on Human Rights, the European Commission of Human Rights ceased to exist with effect from 1 November 1998.