CHU LAM WAN v. COMMISSIONER OF POLICE

HCAL 29/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.29 OF 1999

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J U D G M E N T

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THE APPLICATION

1. By a Notice of Application for Leave to Apply for Judicial Review, the applicant, a former police officer, seeks an order of certiorari to quash the decision of the Commissioner of Police ("the Commissioner") made on 1 December 1998 dismissing the applicant's appeal from a decision of the Force Discipline Officer made on 29 September 1998 that the applicant should be compulsorily retired from the Police Force.

2. Leave to proceed with the judicial review was granted by this court on 11 May 1999 after a contested inter partes hearing.

THE FACTUAL BACKGROUND

3. The applicant, Mr Chu, joined the Police Force as a constable in 1981. From March to October 1993, while employed as a PC Cook in the MTR Division of the Hong Kong Force, he worked part-time for a private investigation agency, and took part in nine private investigations on behalf of insurance companies. A total of ten disciplinary charges were laid : nine for taking part in an investigation other than in the pursuance of duty, contrary to Police General Orders, and the tenth, a more general charge of engaging in outside work for remuneration, contrary to PGO.

4. At his disciplinary hearing on 11 June 1997, Mr Chu pleaded Guilty to all of the charges, which plea ultimately attracted a penalty handed down by the Force Disciplinary Officer ("the FDO"), affirmed on appeal by the Commissioner, of Compulsory Retirement on all ten charges.

5. That decision was quashed upon a judicial review by this court in HCAL101/1997 pursuant to a Judgment dated 24 February 1998. In that judgment it was found that the requirement of procedural fairness had not been met in those particular circumstances, and an order of certiorari issued, quashing the decision of the Commissioner dated 12 August 1997 dismissing Mr Chu's appeal against the decision of the then FDO. That decision of the FDO had been to increase the award from 'Reprimand, suspended for 12 months' for each of the first nine Charges (Charges (A) to (I)), and 'Reprimand' for the tenth charge (Charge (J)), to 'Compulsory Retirement' for each of Charges (A) to (J).

6. Consequent upon the grant of relief in these earlier proceedings, Mr Chu's case was reconsidered by the FDO and the Commissioner. For the purposes of the present case, therefore, it is at this juncture that the story really begins.

FURTHER ADMINISTRATIVE CONSIDERATION

7. By a Memo of 24 July 1998 from the Commissioner, the applicant was informed that "having reviewed all the circumstances of your case", the present FDO had come to the conclusion that the award of sentence handed down by the Disciplinary Tribunal are "manifestly inadequate to appropriately reflect the seriousness of the misconducts committed by you". This Memo went on to stress that undertaking a private investigation for remuneration by any member of the Force constituted "a grave breach of trust", and that undertaking duties which should be done impartially and on behalf of the public "in a private capacity for selected individuals is in serious conflict with your position as a police officer". Paragraphs 2 and 3 of this Memo went on to state that :-

"2. In light of the foregoing the FDO finds that you have deliberately and with little or no need to the conflict your actions would have with your status as a police officer, seriously breached the trust and confidence placed in you. He holds the view that you are no longer considered suitable to remain in the Force as this trust has been broken, not through any isolated, monetary lapse, but on 9 separate occasions. Such misconduct reflects very badly on you and the Force as a whole and is conduct which would certainly raise serious concern amongst members of the public. The FDO is also of the view that irrespective of the nature of investigation undertaken, such being done in a private capacity in abuse of your position as a police officer, renders you totally unsuitable to retain your constabulary powers.

3. The FDO has given due consideration to your guilty pleas, good service and disciplinary record and feels, whilst an outright award of 'Dismissal' could be considered suitable for a case of this nature, this would be a little bit harsh in the instant circumstances. The FDO believes however that the following would be a more appropriate level of award and is therefore considering increasing those awards given by the AO to :-

	Charge	Award
	Charges A to I	Compulsory Retirement with benefits
	Charge J	Severe Reprimand"

8. Given the opportunity to show cause why these awards should not be made, the solicitors acting for Mr Chu made representations by letter dated 24 August 1998. This letter provides a comprehensive response to the issues raised by the FDO in his Memo of 24 July and deals, inter alia, with what is seen as the "drastic" increase in proposed sentence, and with the 'four factors' underpinning the FDO's conclusions. Under this head the issues of breach of trust and conflict of interest were argued, and in particular the difference spotlighted between civil and criminal investigative work, the essential point made here being that the impugned conduct was off-duty civil investigative work (undertaken, as Mr Cotsen pointed out in argument, for insurance companies and, as such, not required to be done for the public at large), which was to be contrasted with private payment for undertaking criminal investigations, for which type of work a police officer was, of course, paid from the public purse.

9. The official response to this lengthy and detailed submission came in a Memo dated 29 September 1998 from the Commissioner to the applicant, paragraphs 2 and 3 of which states :-

"2. Your solicitors submitted a written representation in respect of the show cause. Having carefully considered the points contended in the show cause representation, the Force Discipline Officer has now decided to increase the awards as follows:

	Charges	Award
	A, B, F, H, I	Compulsory Retirement with benefits for each charge
	C, D, E, G, J	Severe Reprimand for each charge

3. The Force Discipline Officer's reasons for reaching the above conclusions are contained in attached Annex A."

'Annex A', as attached to this Memo, set out in some detail the response of the FDO to the arguments raised by the solicitors acting on behalf of Mr Chu; in particular, with regard to the dichotomy between civil and criminal investigative work, the FDO observed :-

"3. I do not share the viewpoint that undertaking civil investigation work is always a less serious occurrence than undertaking criminal investigation work. I remain satisfied that conducting any private investigation work (civil or criminal) is a serious breach of the trust that has been placed in the officer by the Commissioner, irrespective of its nature. It is, I feel, a fact that serious damage could have been caused to the reputation of the Force by Constable CHU's actions particularly in respect of the traffic accidents and consider that, in reaching a decision over the severity (or otherwise) of the award to be imposed, that this point should be carefully weighed. I am satisfied that a conflict of interest existed which should be viewed as a relatively serious matter, but that some leeway should be given to an FDO to consider the nature of the investigation undertaking when making an award.

...

6. Having considered the grounds put forward I feel that the representations hold little merit. As stated in para 3 above, some leeway may be given over the nature of the investigation when making the awards and I have given due thought and weight to this in my deliberations.

7. Given all of the above factors, I consider that the offences A, B, F, H and I deserve very severe awards due to their nature and consider that 'Compulsory Retirement with Benefits' to be a fair and just award on each count. I therefore increase the original award made by the AO to 'Compulsory Retirement with Benefits' on Charges A, B, F, H and I.

8. Given all factors, although I also consider it a very serious matter, I feel that there is some room for leeway in respect of Charges C, D, E and G. I consider that a lesser punishment can be awarded in respect of the investigations into the industrial accidents conducted by Constable CHU. I therefore increase the awards in respect of Charges C, D, E and G to Severe Reprimand on each Charge.

9. Given all factors, I do not see any matters raised in the submission which would warrant not increasing the award on Charge J to 'Severe Reprimand'. I therefore increase the award in respect of Charge J to Severe Reprimand in view of the seriousness of it."

10. This exchange was followed by a letter dated 9 November 1998 written to the Commissioner by Messrs Clarke & Kong, the applicant's solicitors, which letter represented Mr Chu's appeal to the Commissioner. The letter complains that the proposed increased award "is, in all the circumstances, excessive", and went on to make four additional points arising from the Annex to the FDO's Memo of 29 September 1998. In particular (at point (4)), the writer highlights the fact that :-

"In paragraphs 7 and 8 it is clear that the FDO distinguishes between unauthorised investigations into insurance claims arising from traffic accidents and unauthorised investigations into insurance claims arising from industrial accidents. He regards the former as more serious. No reason is given and we are unable to discern any logical basis for the distinction. Both types of investigation are civil and not criminal in nature and therefore both should be treated as less serious than unauthorised investigations into criminal matters. In the absence of any reasons given by the FDO we will refrain from further comment on this point at this stage."

11. This appeal by letter dated 9 November 1998 was rejected by Memo dated 1 December 1998 from the Commissioner to Mr Chu. Since this particular response has also been the subject of criticism, I set out the relevant parts below :-

"2. In response to the Force Discipline Officer's decision, your solicitors have submitted an appeal on your behalf, vide a letter dated 9-NOV-98.

3. The appeal has now been considered by the Commissioner (DCP OPS). He has carefully studied the record of the defaulter proceedings against you on ten counts of 'Contravention of Police Orders' by Mr. CHOW Yin-wo, the show cause memorandum to you by the Commissioner dated 24-JUL-98, the response dated 24-AUG-98 by Clarke & Liu Solicitors on your behalf, the appeal dated 9-NOV-98 also submitted by Clarke & Liu Solicitors on your behalf as well as relevant documents. He does not consider there is any merit in the grounds of appeal to justify a variation of the finding or a reduction of the awards. The appeal is therefore dismissed.

4. Since your appeal has been dismissed, you are hereby compulsorily retired from the Police Force with effect from 2 December 98."

12. This completes the immediate administrative history prefacing this second application for judicial review by this applicant. I turn now to the substance of the arguments put forward on behalf of Mr Chu.

THE ARGUMENT

13. Mr Cotsen, who had the difficult task of taking this brief at relatively short notice, complained that his client had been treated with procedural unfairness. He did not assert Wednesbury unreasonableness, but, as I understood his argument, he made two primary points : first, by virtue of the imposition of a sentence of less severity in respect of some of the charges, his client was deprived of the argument that this sentence should apply across the board; and second, as to the sentence itself, it was not shown anywhere that the Commissioner (or the FDO) had considered suspending the sentence of compulsory retirement with benefits.

14. The latter point was, I think, added relatively late in the argument, and I do not consider in the circumstances of this case that it carries any real weight. I tend to agree with Mr Kwok who appeared on behalf of the respondent in this application, that merely because other sentencing options had not been spelled out cannot be construed to mean that such options had not in fact been considered. The extent of the court's scrutiny at this stage was concisely summarized by Mortimer JA in Ng Wai Sang v. Secretary for Justice [1998] 3 HKC 501 at 506 :-

" The basic approach is that domestic tribunals regulating police discipline are left free to make their own decisions. The court's only concern is whether the reasons given demonstrate that the decision was reached fairly. It is no part of the court's task to examine any reasons given with undue rigour. All that is necessary is that the reasons, however briefly expressed, should demonstrate that the principal issues have been considered and indicate why the decision was reached. In disciplinary proceedings where a sentence is imposed upon a defaulter all that is usually necessary is for the tribunal to indicate why the defaulter's main contentions are accepted or rejected and why it is necessary to impose one particular sentence rather than another - unless one sentence is the only reasonable option."

15. Given the sequence of events in this case, and in particular the fact that the sentencing process has now been undertaken twice by the authorities charged with discipline within the Hong Kong Police Force, in my view it is highly improbable that all sentencing options had not been considered. In this case, the FDO had fully set out his reasons for adopting the course taken, and the Commissioner, after a review of the specified matters laid out in his memo, did not see fit to interfere with his conclusion. In the particular circumstances of this case, I can see no basis to bring up and quash the decision on the ground that no allusion has been made as to why the compulsory retirement sentence imposed on the nine charges was not suspended. There must, it seems to me, be an end to criticism levelled at a particular decision arrived at after the apparent weighing of all facts and circumstances. Although at one stage it was suggested otherwise, I do not consider the Commissioner's response to be inadequate in the particular context, and I repeat the observation in the earlier judgment of this court in the first set of proceedings that rejection of an appeal in the face of informed mitigation speaks for itself. I note, further, that this head is not specified in the relevant grounds filed in support of this application, which no doubt explains the absence of reference thereto in the affirmation of Mr Wong Tsang Kwong, Deputy Commissioner of Police (Operations), filed on 7 July 1999, but if and in so far as it is introduced by necessary implication, I reject it.

16. The first point relied on by Mr Cotsen, which for convenience I will term 'the sentence differentials point', is the issue that occupied most of the argument and, as can be seen, assumed some profile in the written submissions made by Messrs Clarke & Kong in the course of these disciplinary procedures. Mr Cotsen asserted that there was no real rationalization for the 'wedge' that had been driven between the private investigation of traffic and of industrial accidents, he complained that his client had not been told "what the difference is", and that he had "not had the opportunity of submitting why there should be no distinction" given that all the investigations the subject of the nine charges were insurance claims.

17. I found some difficulty with this argument; indeed, I was persuaded to reserve judgment in order further to consider the point. However, additional reflection has not served to convince. It seems to me, at bottom, that in reality what is being complained of is not the procedure by which the distinction has been drawn, but the substantive distinction itself.

18. From the standpoint of procedural fairness, the only relevant benchmark in this exercise, I can identify nothing unfair or prejudicial in terms of the applicant having been disadvantaged by the conclusion reached on this particular point. The twin issues of conflict of interest and the nature of the investigations wrongfully undertaken - that is, the 'essential' difference between criminal and civil investigations - were fully explored in the solicitors' letter dated 24 August 1998 to the FDO, whilst the FDO's reasons, as set out in his 'Comments' at Annex A, not only confront the criminal/civil investigation dichotomy, but also lay emphasis on :-

"... the serious damage [that] could have been caused to the reputation of the Force by Constable Chu's actions particularly in respect of traffic accidents, and considered that, in reaching a decision over the severity [or otherwise] of this award to be imposed, that the point should be carefully weighed ... [and that] some leeway should be given to an FDO to consider the nature of the investigation when making an award." (emphasis added)

19. So that it is clear that at this stage these relevant matters had been canvassed and were at the forefront of the decision-maker's mind. Messrs Clarke & Kong then specifically responded, in their letter of 9 November 1998, on the narrow issue dealing with the unauthorized investigations into insurance claims arising from traffic as opposed to industrial accidents, complaining about the absence of reasons for the distinction which had been drawn, which in fact had resulted in the diminution of sentence regarding those four charges (C, D, E, G) relating to industrial accidents : "no reason is given and we are unable to discern any logical basis for the distinction".

20. Mr Cotsen says, in effect, that absent any such "logical basis for the distinction", the sentence for all the charges should have been so reduced, given that all the investigations involved civil insurance claims. Here is the nub, I think. This conclusion may well be disagreeable to the applicant, in the sense that he would have wished all the private investigations to have been regarded by the disciplinary authority as falling within the lesser category, thereby reducing the level of sentence to one acceptable to him, but this is a view clearly not shared by the Force, and I cannot persuade myself that this is a point meriting further judicial interference in the decision now finally made regarding such sentence. In arriving at his conclusion, the FDO drew the distinction in favour of the applicant, and what is now being said is that it is unfair because this did not occur across the board. The appropriate response to this, I should have thought, is that although the ultimate result possibly may be regarded as hard, it is difficult to characterize as procedurally unfair. A distinction clearly was drawn by the FDO, in the applicant's favour, between the investigation of claims relating to traffic accidents and the investigation of claims relating to industrial accidents - the latter, as Mr Kwok observed, falling generally within the purview of the factory inspector, not the police constable - and this is a distinction also referred to in the affirmation filed in these proceedings of Deputy Commissioner Wong Sang Kwong (at paragraph 5v), wherein the deponent points out that the FDO had given "the rationale" behind the traffic/industrial accidents distinction in his Annex to his Memo of 29 September 1998, and concludes :-

"... Where charges related to an array of investigations into matters pertaining to traffic accidents and theft which had obvious direct police interest (i.e. Charges A, B, F, H and I), the conflict of interest that may arise would be more serious than investigations into purely civil matters, where the likelihood of direct police involvement is negligible." (emphasis added)

21. In my view, therefore, this is not a point which would justify the relief sought. Reasons (whilst unpalatable) have duly been given, and Mr Kwok may be near the mark when he suggests that what is now being sought amounts to no more than "reasons upon reasons". I am satisfied, on the face of the record, that Mr Chu and his advisers were accorded reasonable and fair opportunity during the sentencing process to air their concerns and to address the issues, and the fact that a distinction ultimately was drawn by the Force in Mr Chu's favour, thereby attracting a lesser sentence on four of the charges, in my view does not serve to invalidate this process; indeed, absent such reduction in these four charges, the point probably would not have been open for argument.

22. In Minister for Immigration and Ethnic Affairs v. Wu Shan Liang, [1996] 185 CLR 259, a case in the High Court of Australia, on appeal from the Federal Court, concerning a challenge to the approach taken by the Federal Court to the exercise of its statutory function of judicial review of administrative decisions on claims to refugee status, the joint opinion of Brennan CJ, Toohey J, McHugh J and Gummow J, when commenting in the context of various propositions as to "the practical restraints on judicial review", referred with approval to the statement of a previous Federal Court to the effect that :-

"The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error..."

and further observed (at page 272) :-

" These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin :

'The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.'"

23. I respectfully agree with and adopt those observations, which seem to me apposite in the context of this second application for review.

ORDER

24. It follows from the foregoing that this application for judicial review is dismissed.

25. I make an Order nisi that the costs of and occasioned by the application are to be paid by the applicant, such costs to be taxed if not agreed.