TANG CHI HUNG v. COMMISSIONER OF POLICE

1989, M. P. No. 208

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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D E C I S I O N

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1. I am not at all sure that these proceedings can be brought. On the assumption that judicial review can properly be invoked to question the sentence imposed here, one must not lose sight of the general classifications of grounds on which judicial review may be sought. In Civil Service Union v. the Minister for the Civil Service, [1985] A.C. 374, at p.410 Letters D-E, Lord Diplock said : "One can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community."

2. In this case, the applicant pleaded guilty to drinking a can of beer on duty, in uniform and carrying a firearm with 6 rounds of ammunition. He was sentenced and given a "severe reprimand" by an officer senior in rank to the Tribunal Officer. His sentence was automatically reviewed and his paper appeal was rejected by the Commissioner. His sentence was confirmed. It is difficult to see how the matter can be legitimately reopened. If indeed it could be, it certainly does not fall within any of the permissible grounds of challenge suggested by Lord Diplock.

3. The early cases decided at a time when the Courts were striving for a robust development of administrative law, must be read with caution. Judicial review seeks to supervise the process of decision making and not the decision itself. An "irrational" decision in sentencing is not reviewable unless the "irrationality" reflects, by necessary inference, a pre-existing irrational decision-making process. Whilst it is not conceptually impossible for a sentencing authority to be so impugned, in reality sentence susceptible to such criticism must be virtually non-existent if not rare. In practice, success in deducing a defective mental process from an "irrational" decision must be remote In Council, of Civil Service Unions supra At p. 410 Letters G-H, Lord Diploek explained "irrationality" or "Wednesbury un-reasonableness as a situation with "a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" A sentence best calculated to reflect accurately the offender's culpability would involve an assessment of a great variety of case and extrinsic material. Judicial discretion is widely ranged A jury decision may be stigmatised as perverse, but there could be no graver indictment of curial intellect and responsbility than an attack at the exercise of judicial discretion mounted on an alleged absurdity.

4. In all the circumstances, I can only comment that the sentence is not even manifestly excessive.

5. The application for the sentence to be varied must be, assuming the issues being all amenable to Judicial review after the automatic review and paper appeal, refused.

6. Having expressed my misgivings as to the propriety of these proceedings, justice nevertheless dictates that I should accede to the proposed order founded on a narrow concession made by the Crown.

7. There is, however, no justification for this Court to grant the declaration sought on behalf of the applicant.

8. I am not satisfied that any recommendation should be made in respect to these charges B & E.

9. The question of costs is, I am told, a matter between the parties to these proceedings.

Ordered:

(1)     That all proceedings in relation to charges B & E against the applicant, including whatever findings and determinations made therein be brought into this Court and thereupon quashed;

(2)    That none of the other prayers is granted and the whole proceedings be accordingly disposed of.