LEE YIU CHEONG v. COMMISSIONER OF POLICE

HCAL 80/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.80 OF 2003

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J U D G M E N T

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Introduction

1. The applicant in this matter seeks judicial review of certain decisions made in the course of disciplinary proceedings against him which have resulted in his compulsory retirement from the police.

2. At all material times the applicant was a police constable. As a member of the police force, he was, in terms of the Police Force Ordinance, Cap.232 ('the Ordinance'), obliged to obey all lawful orders of his superior officers and to conform to the police code of discipline.

3. In March 2001, the applicant pleaded guilty to 20 disciplinary offences in terms of the Police (Discipline) Regulations ('the Regulations'). The offences in respect of which he pleaded guilty were :

(i) One count of absence from duty (Charge A);

(ii) Five counts of contravention of Police Orders in that he visited the Mainland without giving prior or subsequent notification (Charges B-F); and

(iii) 15 counts of contravention of Police Orders in that, whilst under disciplinary investigation, he failed to give prior or subsequent notification as to his private visits to the Mainland (Charges G-U).

4. The punishments awarded by the disciplinary tribunal (known as the appropriate tribunal) were as follows :

Charge A	Forfeiture of three hours pay and a reprimand
Charges B-F	Reprimand on each count
Charges G-U	Caution on each count

5. As a police officer holding a rank below that of inspector, the applicant was, in terms of reg.2 of the Regulations, considered to be a 'junior police officer'. As a junior police officer, the applicant's convictions and the punishments awarded were subject to a process of review, this process being mandated by reg.14.

6. Although both his convictions and his punishments were subject to review, as he had pleaded guilty in respect of all charges, it is only the punishments awarded that have formed the subject matter of these proceedings.

7. In respect of these punishments, they were reviewed initially by a senior police officer; that is, an officer holding the rank of chief superintendent or above. That officer increased the punishment for Charge A to one of 'compulsory retirement suspended for 12 months' and confirmed the other punishments.

8. Thereafter, in terms of reg.14(5), the matter was then placed before the Force Discipline Officer ('the FDO') for further review. The FDO (for reasons which are not relevant) reduced the punishment for Charge A back to one of forfeiture of three hours pay and a reprimand, amending only the nature of the reprimand to that of a 'severe reprimand'. But this did not conclude the review. In his minute of 17 August 2001, the FDO observed :

" The instant case has yet again reflected the defaulter's blatant disregard of good order and discipline. When this is considered together with his poor disciplinary records, it is clear that the defaulter has not taken heed of the previous disciplinary awards and has difficulty in keeping up with the Force's standard of discipline. Under the circumstances, I have lost confidence on his suitability to continue to serve in the Force and it is only appropriate to impose an additional terminatory award of 'Compulsory Retirement with Deferred Benefits'. I have however considered all the points raised in his mitigation and have decided to give him one very last chance by suspending the additional terminatory award." [my emphasis]

9. The minute did not state in respect of which of the charges or category of charges the FDO anticipated that the terminatory award may be imposed.

10. The applicant was invited to make representations but chose to make none. In the result, the FDO, in a minute of 28 August 2001, confirmed each of the punishments imposed in respect of the individual charges and went on to confirm the 'additional award' of 'compulsory retirement with deferred benefits, suspended for 12 months'.

11. This application focuses on the single question of whether, in terms of the Regulations, the FDO had the power to impose this additional award. Mr Kwok, counsel for the applicant, has submitted that the Regulations give no such power to the FDO and accordingly the imposition of this extra punishment upon the applicant was ultra vires and of no force and effect.

12. To understand the context in which this application for judicial review is made, it must be understood that, after the additional punishment of 'compulsory retirement with deferred benefits, suspended for 12 months' had been imposed upon him, the applicant did not take steps in terms of reg.15 of the Regulations to appeal that punishment. Nor did he - at that time - seek to challenge the vires of the FDO to impose that punishment. However, during the period when the suspended punishment was still active, the applicant was convicted of several more infractions of the Regulations. These convictions, which were recorded on 17 October 2001 and 7 November 2001, rendered the execution of the suspended punishment mandatory. In this regard reg.28(3) reads :

" ... if, during the period of suspension, the defaulter is convicted of a further offence against discipline, being an offence committed after the offence for which the suspended punishment was awarded, the suspended punishment shall be executed forthwith and any punishment on such further offence shall not be suspended."

13. On 12 February 2003, the FDO confirmed that the suspended punishment of 'compulsory retirement with deferred benefits' should be activated and executed.

14. This second decision of the FDO made on 12 February 2003 was, of course, in all respects consequent upon the first decision made on 28 August 2001.

15. On 8 August 2003, less than a month after the second decision had been made, the applicant filed his application for judicial review. In his application the applicant sought a declaration that the first decision of the FDO (made on 28 August 2001) was ultra vires; a declaration that the second decision (made on 14 February 2003) was made 'without legal authority' and orders of certiorari to quash both decisions.

Delay

16. The first issue raised by the respondent has been the issue of delay; not, of course, in respect of the FDO's second decision but in respect of the first decision made almost two years before the applicant issued proceedings, that first decision being the critical decision under review.

17. In applications of this kind, an applicant has a duty to act promptly. A failure to do so may be fatal, especially when third party interests are involved. In the present case, however, Mr Westbrook SC, counsel for the respondent, has fairly conceded that third party interests have not been prejudiced, certainly not to any material degree.

18. In determining the question of delay, it is important to recognise that the first decision made by the FDO was one which involved the imposition of a suspended punishment. As such, if the applicant had not committed any further contraventions of the Regulations within the suspended period, the deleterious effect upon him of that first decision would have fallen away. It is understandable, therefore, that, in anticipation of being able to see out the suspension period without further blemish on his record, the applicant did not seek to challenge that first decision. The direct impact of that first decision only came into effect when the applicant was found guilty of further contraventions and when the FDO was then obliged to make his second decision. It may therefore be said that the practical consequence of the first decision was only brought home to the applicant when the second decision was made.

19. While ignorance of the consequences of a decision is not of itself an answer to a criticism that an applicant has failed to act promptly, it is nevertheless a factor which may, depending on the circumstances, be taken into account in looking to the justice of the matter. In the present case, there being no prejudice to third party interests, I am satisfied that the justice of this matter dictates that the applicant's failure to act promptly in respect of the first decision should not bar him from seeking substantive relief.

20. This therefore leads me to the single issue in dispute; namely, whether, in terms of his decision of 28 August 2001, the FDO had the jurisdiction to impose upon the applicant what he termed an 'additional award' of compulsory retirement with deferred benefits.

The Regulations

21. An FDO's responsibilities as a reviewing officer are set out in reg.14(5). When the FDO has confirmed or varied the findings of the appropriate tribunal in respect of conviction - in the instant case he confirmed them - his responsibilities in respect of appropriate punishment are contained in reg.14(5)(b) which reads :

"in respect of any award, where he confirms or varies the finding -

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

(ii) confirm the award; or

(iii) remit the award; or

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

[my emphasis]

22. For the applicant, Mr Kwok has submitted that the FDO has no power under reg.14(5)(b)(iv) to 'add' an award to those already confirmed, his power is limited to 'substituting' an award; that is, to replacing one award for another. That must be correct. But it begs the question : 'what is the nature of an award in terms of the Regulations?'

23. In my judgment, it is apparent on a reading of the Regulations that an award is not synonymous with a punishment. An award is the determination and imposition of punishment. As such, a single award may contain one or more than one specified punishment. The most apt analogy, I think, is with the everyday workings of a court. In imposing sentence; that is, in awarding punishment for a crime committed, a court may, for example, impose both a fine and a term of imprisonment if the relevant law allows it : two punishments within the one award or imposition of sentence.

24. A consideration of the Regulations will illustrate my meaning. Under Part II of the Regulations, a junior police officer who is found guilty of an offence against discipline is subject to a number of specified punishments. In this regard, reg.13 reads :

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

(a) caution;

(b) reprimand;

(c) severe reprimand;

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

(e) reduction in rank;

(f) an order to resign forthwith without salary in lieu of notice;

(g) compulsory retirement with pension, gratuity or other allowances, without such benefits or with reduced benefits; or

(h) dismissal."

[my emphasis]

25. The schedule of punishments is subject to reg.30 which states that :

" The punishment that may be awarded by an inspector, a superintendent, a senior police officer, the Force Discipline Officer, the Commissioner and the Chief Executive respectively shall be those set out in the Schedule."

26. The schedule referred to in reg.30 bears the heading 'Powers of Punishment'. In terms of the schedule, in respect of a junior police officer, both a senior police officer and the FDO may award the following punishments :

"1.	(a)	Caution;
	(b)	Reprimand;
	(c)	Severe reprimand;
	(d)	Forfeiture of not more than 1 month's pay except in the case of absence without good cause when forfeiture of pay shall extend to the period of absence in addition to any other punishment awarded; or
	(e)	In the case of a station sergeant or sergeant, reduction in rank.
2.	Suspend punishment under regulation 28.
3.	Order for payment under regulation 29.
4.	In place of, or in addition to, any punishment awarded under paragraph 1 above-
	(a)	dismissal, with, in the case of a station sergeant or sergeant, reduction to the ranks before dismissal;
	(b)	an order to resign forthwith, without salary in lieu of notice; or
	(c)	compulsory retirement with pension, gratuity or other allowances, without such benefits or with reduced benefits.
[my emphasis]

27. It will be seen that an award made by a senior officer and an FDO may include a punishment listed in the first paragraph (e.g. a severe reprimand) and, in addition, a punishment listed in the fourth paragraph (e.g. compulsory retirement with reduced benefits). Two punishments may be included, therefore, in the single award.

28. But how does that answer Mr Kwok's submission that in terms of reg.14(5)(b)(iv) an FDO may only 'substitute' one award for another? The answer, it seems to me, lies in the fact that an FDO may substitute (replace) one award which contains one punishment with an award that contains more than one punishment. That, in my judgment, leaving aside the erroneous language used by the FDO, is, in terms of the Regulations, precisely what happened in the present case. The FDO substituted the original award containing, in respect of each charge, a single punishment with a new award containing two punishments, the first coming from paragraph 1 of the relevant portion of the schedule, the second coming from paragraph 4.

29. I accept that the FDO has spoken of an 'additional award' when he should have spoken of an 'additional punishment to be contained in a substituted award' but that error of language cannot of itself render his decision ultra vires. What must be considered is the substance of the decision made and whether it does or does not comply with the Regulations.

30. I also accept that the FDO should have stated in respect of which charge he had determined to add the punishment of compulsory retirement. Was it in respect of one or more or all of the specified punishments? That was an error on the part of the FDO. But did it vitiate the decision - an administrative one, albeit disciplinary - so that I should quash it?

31. Judicial review is a discretionary remedy and I do not see how it can be said that in failing to 'attach' the additional punishment to one or more of the charges the applicant was prejudiced to the extent that his application for judicial review should be granted. The context in which the additional punishment was awarded was clear, its effect unambiguous. In my judgment, it would be entirely unmeritorious to quash the two decisions of the FDO on that single technical basis, remitting the matter to the FDO so that he could make a new decision in terms of which he would do no more than determine how the additional punishment of compulsory retirement with deferred benefits should best be integrated with the punishments already set. Public law does not recognise a technical breach of the rules of fairness nor are the courts obliged, even if an administrative act is shown to have been made ultra vires, to always quash that act.

32. During the course of his submissions, Mr Kwok criticised what he described as the FDO's imposition of the 'global' punishment, albeit suspended, of compulsory retirement with deferred benefits. I have accepted that the FDO should correctly have imposed that additional punishment in respect of a specific charge or number of charges. But I am unable to accept that, in looking to the matter of appropriate punishment, the FDO was prohibited from taking into account the overall culpability of the applicant, that culpability being assessed by reference to all relevant circumstances.

33. During the course of his submissions, Mr Kwok relied heavily on a judgment by my brother, Deputy Judge Andrew Cheung (as he then was), in Tsang Hing Shing v. Commissioner of Police (unreported) HCAL 191/2002. In that case, the learned judge looked to a similar matter to the one I have just determined, coming, however, to different findings.

34. I accept, of course, that a judgment given by a fellow judge of this court constitutes persuasive authority. In the present case, however, I note that the judgment was based on different factual parameters and that the judge came to his conclusions on the basis that the matters in issue had been conceded. I, however, have had the benefit of full argument. I have also been able to give consideration to the conceptual distinction between an 'award' and a 'punishment' as those terms are used in the Regulations.

Conclusion

35. For the reasons given, I am satisfied that the application for judicial review should be dismissed. I see no reason why costs should not follow the event.