RE LAM KIN CHUNG

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. Pursuant to leave granted by Nazareth J., the applicant applies for judicial review in respect to an award of dismissal made against him on 13th August 1990 in police disciplinary proceedings. The award of dismissal was confirmed on 17th August and the applicant was advised of the confirmation on 28th in the same month. The applicant took the matter on appeal to the Commissioner. His paper appeal was entertained by the Deputy Commissioner, Mr Sheppard, and it was dismissed on 28th September. On 22nd October 1990, the applicant was notified of his dismissal from the Force with effect from 28th September that year.

2. Originally, the applicant faced two charges, charge A and charge B. He was found guilty by an appropriate tribunal on both. He applied for judicial review before Nazareth, J. The judge acceded to part of his application and quashed charge A. Nazareth, J. was of the opinion that one single award of dismissal had been given for both charges. This view taken by the judge was not questioned. Insofar as the award, whether or not it was indivisible, affected charge A, it fell with the quashed charge. With a change in circumstances after judicial review and no separate penalty for charge B, it was remitted to another senior police officer for reassessment. The remitted charge came before Mr Leung Fung-shun, District Commander, Tai Po. An award of dismissal was given for charge B upon reconsideration. After its confirmation and the  applicant's unsuccessful appeal to the Deputy Commissioner, he now applies for judicial review of the punishment so dispensed to him.

3. It is complained that the award of dismissal of the senior police officer and the denial of his appeal by the Deputy Commissioner are orders which these officials, properly directed in law and discretion, could not have reasonably made. It was submitted on behalf of the applicant that these orders of Mr Leung and Mr Sheppard paid insufficient regard to relevant considerations and/or took into account irrelevant considerations. Further, it was contended that less than due weight had been given to the applicant's background, the nature of his offence, the consequences of dismissal, the personal circumstances of the applicant and the merits in his service. The negative aspects in his record and the serious nature, of the offence in charge B were claimed to have been over-emphasized. Exception was taken, in particular, to Mr Leung's reliance on the applicant's conduct of his defence before the appropriate tribunal.

4. In essence, charge A was concerned with the applicant's attire on the day of his appearance in the magistracy, though in the capacity of a victim in an assault/ wounding prosecution. Charge B was based on the applicant's subsequent false statement made to the police as regards the shirt and trousers that he wore for the same attendance.

5. In 1986, the applicant was awarded in disciplinary proceedings a reprimand and warning for dismissal (general). The next year, 1987, he received another reprimand and warning for dismissal (specific). In the year following, 1988, upon his conviction of contravention of orders, he was dismissed by an award of dismissal, against which he successfully appealed. The substituted punishment was yet another warning for dismissal (general). That was the third warning he had received in three successive years. The third warning for dismissal (general), given as a substituted penalty, was to run for the duration of a year from his receipt of a notifying memorandum dated 30th May 1988. Charge B for the giving of a false statement on 28th June 1989, was committed after the expiry of that one year period.

6. Nazareth, J. directed reconsideration by a senior police officer of punishment for the remitted charge B. The judge quashed charge A and he was mindful of the repercussions of an award of dismissal on an officer of some 10 years' standing and of the relatively long years of service, however unsatisfactory, for which the applicant had, been kept by the Force. But Nazareth, J. was content to leave the matter entirely in the hands of the police without making any recommendations. In the Applicant's written submissions on appeal against Mr Leung's award of dismissal, the observation of Nazareth J. were adumbrated for the benefit of the Deputy Commissioner. The senior police officer, Mr Leung, who awarded the dismissal had also been briefed on the judgment of Nazareth, J. and the judicial review proceedings he entertained. Both the senior police officer and the Deputy Commissioner must, therefore, have had full advantage of the judge's expressed views.

7. In his deliberation, Mr Leung Fung-shun, the senior police officer, took into consideration (1) the serious nature of the offence, (2) the applicant's "defences which lacks (sic) credibility serious doubts on his integrity" and (3) his overall poor service record. In such an overall scan, the senior police officer must have noted in the applicant's' service record that he had been complimented five times during his tenure. I shall return later to the somewhat inelegant description, "the defaulter's defence which lacks credibility cast serious doubt on his integrity".

8. Mr Leung concluded:

"During his over 10 years service, the defaulter's duty, performance and discipline has been of an  unacceptable standard and it is evident that he has neither taken nor is able to respond to the advice given to him by senior officers. In my view, he has become a liability to the Force and is unsuitable for police service. Accordingly, I awarded him a dismissal."

9. The applicant felt aggrieved and he appealed. He made a full submission in writing to the Deputy Commissioner. By a memorandum dated 18th October 1990 served on the applicant on 22nd, the Commissioner dismissed the appeal in these terms :

"Your appeal had been carefully considered by the Commissioner and was dismissed on 28.9.1990. You are therefore dismissed from the Royal Hong Kong Police Force with effect from 28.9.1990."

10. No offender may be penalized for the manner in which his charge has been, as of right, defended. On his conviction, he should not be visited by any penalty beyond a full and appropriate punishment for contesting, however resolutely, the case against him. "It is now a well established principle ... that behaviour of a defendant ... such as attacking a  prosecution witness's character of giving evidence which is or may amount to perjury is not a basis upon which what would otherwise be an appropriate sentence may be increased." See p.51 D.A.Thomas on Principles of Sentencing 2nd edn.

11. The appropriate tribunal found the evidence of all five defence witnesses "generally consistent", though "not without defects which, when probed by the prosecution, substantially undermined the tenor of the defence". It was "one version ... against another". The prosecution witnesses were regarded as "witnesses of substantial truth" and "pieces of (their) evidence ... were so convincing". The appropriate tribunal was "satisfied that the events of 16.5.1989 did occur and substantially in the way as described in evidence by the prosecution". The evidence of the defence was, "therefore", rejected. Only at the stage when the case was for the first time referred to Mr Halliday as a senior police officer for an award, it was observed by him that "upon (studying) the transcript ... there (was) no substantial motive for the three prosecution witnesses to have lied". But for the necessary imlication, not even this senior police officer categorically stated that, the applicant had lied. Mr Halliday was not himself the seeing and hearing tribunal.

12. I turn back then to Mr Leung's award on the remitted charge. Whilst the inference drawn is fairly accurate that the applicant's "defence lacks credibility" otherwise the prosecution evidence could not have been believed beyond reasonable doubt, that would not necessarily justify Mr Leung's assumption that the lack of credibility "cast serious doubts on his integrity". After all, in rejecting the defence evidence the appropriate tribunal made no such specific finding and falsity is not the only known source for lack of credibility. But what grave error has been made? Was it  not a reasonable deduction that the applicant had told lies? Did not the applicant himself, in his written submissions on appeal, begrudgingly plead that "he was merely trying to put up a (sic) explanation, though not honest, but of no sinful nature"? However, in making the award for charge B as remitted, the senior police officer, Mr Leung Fung-shun, took the applicant's conduct in his defence into consideration. Was the senior police officer entitled so to do? What, if any, is the effect of it?

13. Mr Marshall for the respondent submitted that general sentencing principles would not apply to the assessment of disciplinary punishment by the police. Counsel argued that as personal integrity is critical to the membership of such groups as the police, their disciplinary arm should be able to not an officer's want of it in awarding a just penalty. This noval concept must be wholly repugnant to the free exercise of the  deep-rooted right to defend. I do not subscribe to it. The member whose integrity is questionable or impugned would have to be brought afresh before a disciplinary tribunal. The court would not countenance the imposition of additional punitive sanction by a tribunal without any formal charge. Before he could be further prejudiced, surely the officer must be afforded an opportunity to present his proper defence. Alternatively, so Mr Marshall contended, Mr Leung took into consideration credibility and integrity at the hearing "as a reason for not being especially lenient or merciful" in deciding whether or not to allow a discount. See p.51 D.A.Thomas on Principles of Sentencing, 2nd edn. If Mr Leung had meant by paragraph 3(b) of his "Assessment of Award" to express his concern merely in the absence of remorse without a guilty plea, he would not have had to comment on credibility or integrity. Moreover, as I have said, the appropriate tribunal returned no finding on integrity or the lack of it. Insofar as paragraph 3(b) of Mr Leung's "Assessment of Award" referred to serious doubts on the applicant's integrity, that is not altogether accurate.

14. The field of judicial review is ever widening at an increasingly faster pace. It is a welcomed development in a society like ours, thriving on its laissez-faire tradition with little disciplined monitoring. But we must not lose sight of the object and purpose of administrative law. "It is intended to see that the relevant authorities use their powers in a proper manner", and "the function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by law". Chief Constable of the North Wales Police v. Evans, [1982]1 W.L.R. 1155 at p. 1160 Letters F & H, per Lord Hailsham of St. Marylebone L.C. The criteria for curial intervention are not those accepted as correct in the eyes of   the court. The working standard is that "indicated by a true construction of the Act which distinguishes between what the statutory authority may or may not be authorised to do ". See p.407 Administrative Law by Professor Wade, 6th edn. The statutory regime for the assessment of punishment in police disciplinary enquiries stands on its own. It envisages no external aid or guidance. I should echo here the warning of May J., as he then was, in Barty-king v. Ministry of Defence, [1979] 2 AER 80 at  p.83 Letter j : "This court is no court of appeal from any inferior tribunal save as provided by statute." The Legislature "has provided in many cases that matters peculiarly within the competence" of tribunals "lower down the judicial scale than the High Court" should be dealt with by them. In this case, a three-tier safeguard is further provided : from the appropriate tribunal to the senior police officer on a referral, then to the Commissioner on appeal. The court's superivsory power in judicial review should be invoked with circumspection. Prolific misuse of this remedy should be discouraged.

15. It was out of order for the senior police office, Mr Leung Fung-shun, to rely on the applicant's "defence which", lacking in creibility, "cast serious doubts on his integrity". In this application, it would not follow, once a factor having been erroneously taken into account, that the decision is  necessarily wrong. Under the rubric of "Procedural Impropriety", any alleged substantial breach of procedural or other rules for fair play would colour or taint the decision-making process. Different considerations arise when an administrative decision is attacked under what is commonly called the "Wednesbury unreasonableness". Emphasis would seem to be placed on the causation, a substantial breach, for  "procedural impropriety", whilst in the case of the "Wednesbury unreasonableness" it is principally on the consequence, the manifestly irrational decision, that the court is invited to focus. It is quite understandable why the cause is the central issue under the ground of "procedural impropriety", because in that ground the critical test is the "duty to act fairly". See Council of Civil Service Unions v. Minister for the Civil Service, [1985]1 A.C. 374 at p.414 Letter H, per Lord Roskill. As a cause, the breach would still have to be a substantial one. A substantial breach of the duty to act fairly, without more, is sufficient to render the decision reviewable. The right to flat fair play in action has been interfered with. It would instantly call for an administrative remedy. Whereas under the Wednesbury principles, the court may intervene only if a tribunal "exercises a power in so unreasonable a manner" to produce a decision "that no sensible person who has applied his mind to the question to be decided would have arrived at". Ibid. p.414 Letter G & p.410 Letter H, per Lord Roskill & Lord Diplock respectively. One can readily see the shifting of emphasis to the end product, the resultant decision. Underlying both of these grounds of challenge in administrative law, what is truly reviewable is the decision-making process. A court must not allow itself to be tempted to substitute the tribunal's decision with that of its own. For the procedural obligation to act fairly, "procedural impropriety", the shortfall may be easily detected in the overt process of deciding. But in "Wednesbury reasonableness", the abuse is better reflected in the decision itself. In every case, the court has to ask itself the question : could the error reasonably be regarded as having caused a substantial injustice, as opposed to a trival or merely technical prejudice? A substantial breach of a duty to act fairly would per se bring about an injustice. In this application, the alleged injustice is said to have caused the making of the resultant harsh award. Mr Leung, the senior police officer, relied first and foremost on the serious nature of the offence. Conduct of the applicant's defence was only one of the considerations. There was little dispute that Mr Leung could legitimately return an award of dismissal on the serious nature of the charge alone. In consequence, the real test here would seem to be : could the award have been different without the irrelevant consideration of the applicant's conduct in his defence?

16. The applicant was a serving police officer. Mr Halliday summed the matter up succinctly :

"The defaulter was required to make a formal written statement as to his dress on the day in question and the evidence indicates beyond reasonable doubt that he lied. As a police officer, he cannot be allowed to do this even if it was, in effect, in his own defence:"

17. The applicant's grievance is, for various alleged imperfections, claimed to fall within the "Wednesbury unreasonableness", Lord Diplock's "irrationality" principle. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948]1 KB 223. As stated, the principle is that the tribunal "must direct himself properly in law, call his own attention to the matters which he is bound to consider, exclude from his consideration matters which are irrelevant to what he has to consider." Ibid. at p.430 per Lord Greene M.R. For "irrationality" in Wednesbury unreasonableness, I have endeavoured to explain where the emphasis lies. Unless a tribunal observes these guidelines, what would appear or may be suggested to be a manifestly unreasonable decision is open to challenge. To begin with, the decision under consideration must be one capable of being taken as manifestly unreasonable. In order to successfully invoke the remedy of judicial review for a Wednesbury challenge, the error or neglect in the complaint must also be capable of materially affecting the decision under attack. Thus, at least the decision has to be shown to be capable of being taken as a manifestly unreasonable one, although it is debatable whether it needs to be also one "so absurd that no sensible person could ever dream that it lay within the powers of the authority" as in the Wednesbury case, supra. at p.229 per Lord Greene M.R., "so very wrong, so completely wrong that no reasonable person could sensibly take that view" as in Secretary of State For Education and Science v. Tameside Metropolian Bourough Council, [1977] AC 1014 at p.1026, Letter C per Lord Denning, "so outrageous in its defiance of logic or of accepted mortal standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" as in Council of Civil Service Unions v. Minister of Civil Service, supra. at p.410 Letter G, or an "unreasonableness verging on an absurdity" as in Puhlhofer v. Hillingdon London Borough Council, [1986]1 AC 484 at p.518 Letter D/E, per Lord Brightman.

18. As regards matters of discretion within the peculiar competence of an authority, Lord Scarman puts it on the basis of a prima facie case for the Wednesbury challenge in these terms : "Examination of a court would be justified only if a prima facie case were to be shown for holding .... that the consequences of his guidance were so absurb that he must have taken leave of his senses." See Nottinghamshire County Council v. Secretary of State for Environment, [1986]1 All ER 199 at p.202 Letters e-f.

19. An example of abuse of power prompted by an irrelevant consideration can be taken, at random, from Hanson v. Redcliffe Urban Council, [1922]2 Ch. 490 where teachers were dismissed for budgetary reasons by authorities empowered to require their dismissals only on educational grounds. The irrelevant consideration was clearly capable of affecting the decision and did in fact affect it making it manifestly unreasonable.

20. The nature of the charge against the applicant as a police officer is serious. The award of the senior police officer, Mr Leung, was made under a statutory regime. It was never sought to be demonstrated that under that peculiar statutory regime, the award of dismissal here is or is capable of being taken as manifestly unreasonable. Counsel for the applicant was unable to level any just criticism at the observation of this court that on its own charge B merits a dismissal. Aside from the statutory regime, the applicant has not been able to show that the irrelevant consideration taken into account by the senior police officer had increased his otherwise deserving punishment or in any way affected it. It was also not sought to be argued by counsel that, whether or not the statutory regime has its own code to follow, the taking of the conduct of the applicant's defence into consideration had produced a different result The evidence before me comes nowhere near establishing that this irrelevant consideration was capable of, in any way, affecting the outcome. The applicant can claim no prejudice. One would virtually need little more than sheer common sense to be persuaded that for the serious nature of the offence, no amount of impropriety under the Wednesbury principles could have made any difference. The applicant is seeking to apply these Wednesbury principles in vacuo. The senior police officer had otherwise paid proper regard to all the material considerations before returning the award of dismissal. I find no substance in the applicant's other complaints.

21. The appeal against the award of dismissal was entertained by Mr Shappard, Deputy Commissioner of Police. It was rejected in these terms : "Your appeal had been carefully considered by the Commissioner and was dismissed on 28.9.1990." The applicant had lodged a 4½-page full written submission. The argument on the conduct of the applicant's defence having been taken account of as an irrelevant consideration was advanced at a late stage of these proceedings and only under this Court's encourgement. This was not included in the applicant's written submissions for the Deputy Commissioner. But the applicant did not take any point on his own neglect in so limiting the exercise of his right of  appeal. The Deputy Commissioner's decision was otherwise sought to be assailed on the same grounds. However, counsel had chosen to be totally silent on the Deputy Commissoner's dismissal which evidently cannot be, in these circumstances, susceptible to judicial review.

22. As one point, Mr Yuen for the applicant seemed to crave in aid the "possible" ground of "proportionality" in Lord Diplock's analytic summary in Council of Civil Service Unions v. Minister for the Civil Service, supra. at p.410 Letters D to E. Counsel submitted that the punishment of the applicant is wholly incommensurate with the gravity of the charge in the surrounding circumstances. Lord Diplock envisaged "the possible adoption in the future of the principle of proportionality which is recognized in the administrative law of several of our fellow members of the European Economic Community". In a recent address delivered by Lord Scarman promoting judicial activism, "proportionality" was said not to be "a major or a noval concept in English law". See "The Development of Administrative Law : Obstacles and Opportunities", Public Law, Winter 1990, p.490. Lord Scarman continued :

"It manifests itself, for instance, in the criminal law as 'let the punishment fit the crime'. In administrative law it means simply that an excessive use of a lawful power is itself unlawful".

 

23. The Statutory regime leaves the awards in the hands of the police. There are no established tariffs. This court is not even assisted on what the critical test is, within that statutory regime, for interfering with an alleged inappropriate award. Mr Yuen suggested "manifestly excessive" but did not support "wholly erroneous" or any other guidelines. This area was left wholly unexplored as were the limitations, if any, imposed on the scope of judicial review by the statutory regime.

24. Although the making of an award is or may be regulated by different standards or under different rules, I would borrow an observation of Lord Diplock that excessiveness in punishment "is a question that judges by their training and experience should be well equipped to answer" Council of Civil Service Unions v. Minister for Civil Service, supra. at p 410 Letter G/H. If there were room for applying the developing concept of proportionality, one could detect, even ignoring the statutory regime, no sense of injustice or excess in the applicant's award of dismissal. In no way can it be said that the applicant's dismissal for making a false statement is inappropriate or excessive. Apart from the statutory regime, whatever the principle Mr Yuen invoked, the award of dismissal is, in my view, not such an improper penalty as would warrant this court's intervention .

25. It was an unfortunate incident that led to the applicant's loss of a career, security, pension and other benefits, but in whichever way the award is examined, it does not have the resemblance of an unjust and undeserving penalty.

26. The application is, therefore, dismissed with an order nisi for costs against the applicant.