李鴻發 v. 香港警務處 AND ANOTHER

HCAL 542/2022

[2022] HKCFI 3165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 542 OF 2022

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D E C I S I O N

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A.  Introduction

1.  The Applicant was a sergeant in the Hong Kong Police Force (“Police Force”). By a decision (“Decision”) dated 10 November 2021, he was dismissed from the Police Force without retirement benefits, immediately after being reduced to the rank of constable. By his Form 86 dated 27 June 2022, the Applicant seeks leave to apply for judicial review to challenge the Decision.

2.  The Applicant has named as putative respondents both the Police Force and the Civil Service Bureau (“CSB”).

3.  In accordance with my directions dated 20 July 2022, an Initial Response has been filed on behalf of the Police Force and the CSB. However, the Applicant has failed to take advantage of the leave granted to him to serve a reply to that Initial Response, either within the deadline set or at all.

4.  I had also informed the parties that, were I to decide to deal with the application for leave to apply for judicial review on paper, I would proceed to do so without further notice to the parties. Having considered the materials, I am satisfied that it is appropriate for me to deal with the application on paper.

5.  This is my Decision.

B.  Summary

6.  The CSB had no involvement in making the Decision, and the intended application against the CSB must fail in limine.

7.  The intended action against the Police Force must also fail for one or a combination of a number of reasons, including that: (1) the challenge has been brought out of time, and the Applicant has not applied for, nor sought to explain why he might be entitled to, any extension of time; (2) the Applicant has failed to identify any intended grounds of review; and (3) in any event, there is no apparent arguable failure to have complied with any public law requirements.

8.  I can explain those conclusions briefly, as follows.

C.  Factual Background

9.  The Applicant joined the Police Force as a police constable in 1988, and was promoted to the rank of sergeant in 2008.

10.  On 26 January 2021, the Applicant was convicted on his own guilty plea of three counts of “fraud” and one count of “betting with a bookmaker”. On 9 February 2021, he was sentenced to a community service order of 240 hours. Neither the convictions nor sentence were the subject of any appeal.

11.  In light of the Applicant’s criminal convictions, the Assistant Commissioner of Police (Personnel) (“ACP P”) exercised his delegated power under section 37(5) of the Police Force Ordinance Cap 232 (“PFO”) to decide whether punishment should be imposed on the Applicant, and if so what level of punishment. The Applicant was potentially liable to punishment under section 37(5) of the PFO because he was a non-commissioned officer who had been convicted in criminal proceedings. The section also identifies that one potential outcome would be dismissal without retirement benefits.

12.  On 16 April 2021, the Applicant was invited to make representations. After he was given an extension of time to do so, the Applicant submitted his representations to ACP P on 19 May 2021, via his legal representative.

13.  On 4 August 2021, the Applicant received (a) a memo from the Applicant’s Formation Commander dated 11 June 2021, and (b) the Staffing Note of the Discipline Division of the Police Force issued in July 2021. Both documents recommended that the Applicant be dismissed without retirement benefits. The Applicant was invited to submit in response his representations in writing for ACP P’s consideration. Again after he was given an extension of time to do so, the Applicant submitted his representations to the ACP P on 25 September 2021, via his legal representative.

14.  The Applicant’s case was then considered by the ACP P, who – in exercise of his delegated authority to do so under section 37(5)(b) of the PFO – on 3 November 2021 issued his ‘Deliberation’, which explained his imposition of an award of “Dismissal without Retirement Benefits” in respect of each of the Applicant’s convictions.

15.  By way of memo dated 5 November 2021, the Applicant was informed of the Decision. The memo and relevant dossier entry was explained to the Applicant on 16 November 2021, and he signed as having understood it. The Applicant was dismissed from the Police Force on 10 November 2021, and was reduced to the rank of constable before dismissal.

16.  After the dismissal, the Applicant wrote letters to the Commissioner on 12 November 2021 and the Office of the Chief Executive on 14 January 2022. The Commissioner replied to the Applicant on 9 December 2021 and 14 February 2022, stating that the Decision remained intact and that the Chief Executive has no legal power to override decisions made in accordance with the provisions of the PFO, and that there is no statutory avenue of appeal or review against an award of the kind made against the Applicant.

D.  Delay

17.  Where the Decision was made on 5 November 2021, and the application for leave to apply for judicial review was issued only seven months later on 27 June 2022, it was out of time.

18.  The Applicant has not applied for any extension of time for filing the application for leave to apply for judicial review, nor sought to identify any good reason for the Court to grant an extension of time.

19.  In any event, the correspondence subsequent to the Decision would not be a good reason for an extension of time, and the Court will not extend time where, as in this case, the intended application lacks sufficient merit (see below).

20.  Therefore, the delay is fatal to the application.

E.  Failure to identify any intended grounds of review

21.  As stated above, the Applicant has failed to articulate any or any proper intended grounds of review in his Form 86, or in his supporting affirmation. A request for legal aid (made in his Form 86) and the stated request for payment of retirement benefits (made in his affirmation) do not amount to any grounds for review.

22.  That failure is in breach of the mandatory requirements of RHC Order 53 rule 3(2)(a). It is also well-settled that it is not for the Court to seek to devise potential grounds of review, when none are identified by the applicant seeking leave to apply for judicial review.

23.  Therefore, the failure to identify any intended grounds of review is also fatal to the application.

F.  No Merit

24.  In any event, the is no apparent public law failure which might be put forward as sufficiently arguable with reasonable prospects of success to justify the grant of leave to apply for judicial review.

25.  As briefly identified above:

(1)  the Decision was made within the powers granted under the PFO, including the delegated power;

(2)  the opportunity for the Applicant to make representations, twice, was afforded to him by reference to the specific recommendations and potential decision drawn to his attention;

(3)  the Decision was made after consideration of all the relevant circumstances, including the facts leading to the convictions, the recommendations of the Formation Commander and the Staffing Note, and the Applicant’s own representations, submitted via his legal representative;

(4)  the Decision was reasoned.

26.  Further, it is settled law that in considering disciplinary decisions in judicial review applications, the role of the Court is to exercise its supervisory jurisdiction. Therefore, it will not lightly interfere with the findings of a professional tribunal, unless they are so outside the normal discretionary limits as to suggest that there must have been an error of law, or that the decision was Wednesbury unreasonable.

27.  There is no arguable basis for contending in this case that the Decision was unlawful or unreasonable in the public law sense.

28.  Therefore, the lack of merit is also fatal to the application.

G.  Result

29.  I dismiss the Applicant’s application for leave to apply for judicial review.

30.  As to costs, Ms Lai (the Acting Senior Government Counsel who signed the Initial Response) invites me to make a costs order against the Applicant on the basis that the application is wholly devoid of merit (not least because there was the failure to specify any proper or reasonably arguable grounds of review), and that time and costs have been incurred in preparing the initial response to render assistance at the Court’s invitation.

31.  I accept that may be a weighty factor justifying a costs order adverse to the Applicant. I also note that the Applicant has failed to offer any reply to the Initial Response.

32.  In the circumstances, and in the broad exercise of my discretion as to costs, it seems to me that this is a case where it is appropriate for the Police Force’s costs to be borne by the Applicant. (For the avoidance of doubt, I cannot see that the CSB would separately have incurred any costs.)

33.  The costs to be payable by the Applicant will be subject to a summary assessment by me on paper. The Police Force should provide its Statement of Costs within 14 days, and the Applicant should provide any List of Objections in response within 14 days thereafter. After those deadlines have expired, I shall perform the summary assessment and notify the parties of the result.