WONG WAI TAK v. THE SECRETARY FOR THE CIVIL SERVICE

HCAL 2335/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW PROCEEDINGS
NO. 2335 OF 2000

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J U D G M E N T

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Introduction

1. On 23 June 2000, the Respondent in this matter, the Secretary for the Civil Service, informed the Applicant, a senior inspector in the Hong Kong Police Force, that he was to be compulsorily retired. The letter read:

"I write to inform you that consequent upon your conviction of six counts of "Absence from Duty Without Leave or Good Cause" and six counts of "Making a Statement False in a Material Particular", the Secretary for the Civil Service, in exercise of the authority delegated to him by the Chief Executive, has directed that you be compulsorily retired form the service under Regulation 27(3)(ba) of the Police (Discipline) Regulations with effect from 27 June 2000. Upon your compulsory retirement, you will be granted a deferred pension ....."

The Commissioner of Police ('the Commissioner') does not have the power to direct the compulsory retirement of an officer of the rank of inspector. This power is reserved to the Respondent.

2. The Applicant is aggrieved by the punishment imposed upon him. He therefore seeks an order of certiorari to quash the decision made by the Respondent imposing that punishment and an order of mandamus directing the Commissioner to assess an appropriate punishment within the range of punishments open to him.

3. As to the grounds upon which the Applicant seeks to quash the Respondent's decision, Mr Harris, who appeared on his behalf, described 'the nub of his case' as being the assertion that the punishment imposed upon the Applicant was so exceptional in its severity that no reasonable decision maker applying his mind to the matter could have decided upon such a penalty.

4. Mr Harris argued a number of supporting grounds for why, in his submission, the decision must be quashed. They may be expressed as follows -

(i) Material mistakes of fact

Mr Harris contended that the information placed before the Respondent and upon which he must have made his decision contained material errors.

(ii) Failure to give reasons

Mr Harris contended that, although under no statutory obligation to give reasons, the Respondent was under a common law obligation to do so and failed in that obligation.

(iii) Delay amounting to abuse of power

Mr Harris contended that those responsible for processing all matters necessary to enable the Respondent to reach his decision were guilty of such inordinate and inexcusable delay that it amounted to an abuse of power. Such abuse, he submitted, vitiated the proceedings related to the assessment of whether or not it was appropriate to order the Applicant's compulsory retirement.

The early history of the matter

5. The Applicant, who is now 40 years of age, joined the police force in 1986 as an inspector. The Applicant holds a degree from a university in the United States and before joining the police had been a social worker. In 1990, the Applicant transferred from uniform branch into the CID.

6. One of the Applicant's earliest CID postings was to a Regional Crime Unit in the Kowloon West Division. He appears to have relished this posting. However, in March 1995 he was transferred to a CID unit in the Kowloon City Division. This unit was apparently, in tactical terms, a 'reserve' unit in that it would take over cases referred to it by other CID units. The Applicant was distressed at this posting.

7. In any large public organization - as in any large corporation - postings often indicate how well a person's career is progressing within the organization. The Applicant saw his new posting as an effective 'down-grading'. He later commented in a petition to the Respondent that it left him confused, frustrated and despondent as to his future in the force.

8. In the months that followed, on 6 different occasions, the Applicant absented himself from duty. On each occasion he either went to or was in Macau when he was supposed to be on duty. While there, on his own admission, he spent the time in bars and nightclubs. So that he would not be discovered, he arranged for a colleague to make the required entries in the 'occurrence book' at his station. He also made false entries in his own police notebook.

9. These transgressions spanned a period of approximately 12 months, commencing in August 1995 and ceasing in August of the following year. Shortly thereafter the Applicant was transferred to a new CID unit and appears to have regained control of his career. It appeared as if this unfortunate interlude in his life was to remain known to only the Applicant and a few of his colleagues; no doubt the Applicant fervently wished that to be so, especially as in or about August 1998 he was told that he was being considered for a new posting of enhanced responsibility. But it was not to be.

10. It appears that during 1998 an internal investigation took place into the activities of one of the junior officers in the Applicant's old reserve unit. These investigations revealed that the officer had, while supposedly on duty, made a number of trips to Macau. Continued investigations revealed that, at or about the same time, the Applicant had also made trips to Macau.

11. In November 1998, the Applicant was informed that disciplinary proceedings were being instituted against him. Up until that time, as I have indicated, he appears to have regained control of his career. But, upon being informed of the disciplinary proceedings, the Applicant found it emotionally impossible to continue working to the same degree of efficiency.

12. In December 1998, the Applicant was interviewed and made a full admission concerning his absences from duty and the manner in which he had successfully hidden that fact.

13. The following month, in January 1999, it was determined that the Applicant should no longer serve in the CID and he was returned to the uniform branch of the service. His inability at this time to function efficiently as a CID officer was one of the factors motivating the decision to move him. It appears that the Applicant had throughout his career been assessed variously as 'good', 'very good' or somewhere between: a category described as 'very good/good'. However, from November 1998, when he was under what is called interdiction, his performance was assessed as being only 'average'. The papers produced in the judicial review proceedings do not indicate the full list of performance gradings available to assessing officers. It is difficult, therefore, to know exactly what, within the service, the various grades applicable to the Applicant really meant. Mr Harris asserted that, in the absence of any evidence to the contrary, they must be taken to mean exactly what they say; namely, 'good' is good.

14. On 4 May 1999, the Applicant appeared at a disciplinary hearing. He pleaded guilty to the 12 charges which he faced. These consisted of 6 charges of absence from duty without leave or good cause, contrary to Regulation 3(2)(a) of the Police Discipline Regulations, Chapter 232, and 6 charges of making a statement false in a material particular, contrary to Regulation 3(2)(j) of the same disciplinary regulations. This second set of charges related to the Applicant's false entries in his notebook. No charges were brought concerning the false entries in the station 'occurrence book'.

15. At the disciplinary hearing, the Applicant's own defence officer accepted that the offences were far from trivial. In a written plea in mitigation, that officer wrote:

"Absence from work, as a disciplined officer, is a serious offence. Making false entry in the daily police notebook covering up the wrongful acts aggravated the situation. By repeating the same offence on six occasions, there seems little mitigation factors open to him."

Assessing punishment

16. In late June 1999, some 7 weeks after the disciplinary hearing, the Commissioner confirmed the findings of guilt. However, while the Commissioner deemed it appropriate to impose a punishment of a 'severe reprimand' in respect of the false notebook entries, he was of the opinion that the 6 charges of being absent from duty without leave or good cause merited punishment that exceeded his jurisdiction; namely, compulsory retirement with deferred benefits. It was therefore necessary for the Commissioner to make a recommendation to that effect to the Respondent.

17. The Applicant was informed of the Commissioner's decision in a memorandum dated 5 July 1999. The memorandum read, in part:

"Upon notification of the Commissioner's forwarding a recommendation to the Chief Executive, you may ... make a written petition to the Chief Executive containing such representations as may be relevant to enable the Chief Executive to exercise his discretion under Regulation 27(3). Ordinarily this should be done within 14 days of your receipt of the notification correspondence."

18. Regulation 27 of the Police (Discipline) Regulations makes the following provisions regarding a recommendation from the Commissioner:

"(1) Where any inspector is found guilty of any of the offences against discipline specified in regulation 3(2) and it appears to the Commissioner that the nature of the offence is so aggravated and other relevant circumstances such that dismissal or compulsory retirement with pension, gratuity or other allowances, without such benefits or with reduced benefits is merited, the Commissioner shall forward to the Chief Executive a report containing -

(a) the record of the proceedings;

(b) the record of the inspector's service;

(c) the Commissioner's recommendation; and

(d) his reasons for not making an award under regulation 25(1) or (2).

"(2) The Commissioner shall at the same time as he forwards a report under paragraph (1) inform the inspector that his case will be considered by the Chief Executive, and the inspector may within 14 days of the receipt of such information, or within such extended time as the Chief Executive may allow, forward to the Chief Executive a written petition containing such representations as may be relevant to enable the Chief Executive to exercise his discretion under paragraph (3)."

19. The Commissioner, therefore, makes no decision of a binding nature in respect of the punishment of compulsory retirement. He does no more than compile a report containing a recommendation so that the decision may be made independently, and after due consideration, by the Chief Executive or his delegated authority; in this case the Secretary for the Civil Service. The Commissioner does, of course, have an obligation to advise the inspector who is the subject of the recommendation that he has made a report. That is to enable the inspector to submit a written petition to the Chief Executive advocating his own position.

20. Once advised of the Commissioner's decision, the Applicant resolved to lodge an appeal with the Commissioner. It would appear that he purported to do so in terms of Regulation 26 which states that an inspector may, within 14 days of receiving notice from the Commissioner of 'any finding or punishment' appeal in writing to the Commissioner. As it transpires, the Applicant was not contesting the 'finding' of the disciplinary board; indeed, he had pleaded guilty. Nor was he contesting the 'punishment' which the Commissioner had the jurisdiction to impose; namely, the severe reprimands. He was instead appealing the Commissioner's decision to make a recommendation to the Chief Executive which, in my view, is not contemplated by Regulation 26 to be either a 'finding' or a 'punishment'.

21. But whatever the true regulatory position - and I confess to finding Regulation 26 somewhat opaque - the Commissioner accepted the Applicant's petition and indeed granted 2 short extensions of time to enable the Applicant to prepare that petition which bore the date: 10 September 1999. Shortly thereafter, by memorandum dated 21 September 1999, the Applicant was advised that his appeal to the Commissioner had been considered and dismissed.

22. By a memorandum of the same date; that is, 21 September 1999, the Commissioner's recommendation was sent to the Secretary for the Civil Service. In that memorandum the Commissioner's views as to the moral culpability of the Applicant were expressed in the following terms:

"[The Commissioner] is of the view that the officer's conduct, displayed during the commission of the offences ... should attract a terminatory award, namely "Compulsory Retirement with Deferred Benefits" as the defaulter has abrogated his responsibility as a supervisory officer and his actions have raised doubts about his personal integrity."

23. On 23 September 1999, the Applicant was informed that the Commissioner's recommendation had been forwarded and was advised of his right to appeal to the Chief Executive by petition within 14 days under Regulation 26(2) of the Police (Discipline) Regulations.

24. But Regulation 26(2) was not the correct regulation under which the Applicant should have lodged his petition. Regulation 26, as I have already said, relates to any 'finding or punishment' which may give ground for an appeal to the Commissioner. Regulation 26(2) provides that, if an inspector is aggrieved by the decision of the Commissioner on any such appeal, that inspector may then appeal the Commissioner's finding by way of a petition to the Chief Executive. In the present case, while the Commissioner had received a petition from the Applicant and then dismissed it, in my view no such appeal lay because the subject of the appeal was neither a 'finding' made by the Commissioner nor a 'punishment' imposed by him, it was no more than his decision to pass the matter of sentence to a higher authority.

25. As a result of this misapprehension on the part of both the police and the Applicant, between late September 1999 and late April 2000 the matter of assessing whether it was appropriate to direct the Applicant's retirement was processed under the wrong regulation; namely 26(2) instead of 27(2). During this time, however, it is apparent that the Respondent's staff were taking active steps to ensure that all relevant material was placed before the Respondent when he made his decision on the matter. This is illustrated by a memorandum dated 27 October 1999 from a Ms Nerissa Wong, writing on behalf of the Respondent, addressed to the Commissioner:

"To facilitate our further consideration of [the Applicant's] petition, I should be grateful if you would furnish me with the following information -

"(a) ...

(b) Mr Wong pleaded for a lighter punishment with the knowledge that the punishment being recommended is the most severe punishment awarded in the past five years in respect of the misconduct of absence from duty. Please let me know the details of those cases where the same punishment was awarded. Or if this is the first case in five years, please elaborate the reasons for deviating from the norm of punishment in respect of such cases. Have the mitigating factors such as Mr Wong's clear disciplinary record and genuine remorsefulness as displayed in his co-operative attitude in the disciplinary hearing been taken into account in the consideration of punishment? Please advise why a rehabilitative punishment would not be appropriate in Mr Wong's case."

26. In the reply of 3 November 1999, the following was said in respect of other punishments given for the offence of being absent from duty without leave or good cause:

"Awards meted out in the past five years for "Absence from Duty Without Leave or Good Cause" ranged from "Caution, suspended for 12 months" to "Compulsory Retirement with Deferred Benefits" in addition to forfeiture of pay covering the periods of absence. Apart from SIP WONG, one other officer, a Police Constable, had also been compulsorily retired in 1997 as a result of his conviction of 21 counts of "Absence from Duty" (each ranging from 2 minutes to 1 hour). Each case is judged on its individual merits, and the awards meted out in respect of other cases cannot and had not been taken as guidelines to form the basis for the decision to compulsory retire SIP WONG. That being said, there is also no indication of a deviation from the normal tariff of punishment when compared with previous awards."

27. In respect of mitigating factors, the following was said:

"His guilty plea, remorsefulness, clear disciplinary record, past service and personal circumstances have all been taken into account as mitigating factors in determining this award which, in all circumstances, is considered most appropriate. The deliberations of the Commissioner of Police (Deputy Commissioner, Management) in reaching this decision is extracted as follows:

"This officer's repeated misbehaviour is disgraceful and will not be accepted. By his actions, he has abrogated his responsibility as a supervisory officer, set a bad example to junior officers and let the Force down. This behaviour simply cannot be tolerated. He is clearly a liability to the Force and his actions have raised doubts about his personal integrity.""

28. Mr Harris has described the language set out in the memorandum in italics as being 'extreme'. I would prefer to describe it as being direct and robust. It is certainly language which can leave no doubt as to why the Commissioner recommended compulsory retirement.

29. For the sake of completeness, it should be said that the Applicant received a copy of both these memoranda and was therefore aware of the questions asked and the comments made in reply.

30. At the end of April 2000, the Applicant was informed that he had, in fact, petitioned under the incorrect Regulation and that if he still wished to petition he may do so 'in accordance with Regulation 27(2)' when the Commissioner forwarded his recommendation to the Chief Executive. Effectively, therefore, rather than attempting to 'convert' the section 26(2) procedure, it was decided to start again, allowing the Applicant time to submit a new petition. This the Applicant did, his new petition being forwarded to the Respondent on or about 22 May 2000 approximately 2 weeks after he had received notice that the Commissioner had himself submitted a fresh recommendation.

31. All the relevant materials concerning an appropriate punishment were presented to the Respondent under cover of an internal minute dated 20 June 2000. That minute contained a number of observations written by its author, Ms Judy Chan. The observations read as follows:

"13. We agree with CP's [Commissioner of Police's] view that WONG's repeated misconduct is most unacceptable having regard particularly to his post as the officer-in-charge of his divisional investigation team. The fact that WONG and the PC departed for Macau and arrived Hong Kong at approximately the same time on the six occasions strongly suggests that they were together on a trip outside Hong Kong despite they had been scheduled for duty close to their arrival time. This reflects badly on WONG's sense of responsibility and indicates that his role as the immediate supervisor of the PC was clearly compromised.

14. Although he has a clear disciplinary record, WONG's present misconduct which lasted for one year demonstrates his clear disregard for discipline although being in a supervisory position. Regarding his performance, we note that he could give an overall satisfactory service but it was not impressive. Furthermore, he was only recommended for promotion once in the 1994/95 promotion exercise but he was not shortlisted for an interview. A summary of his overall performance from 1988 to 1999 is at Float D. We have also noted WONG's guilty plea and his remorsefulness but these are outweighed by the nature of his misconduct.

15. We consider that each disciplinary case should be considered on its own circumstances. Having regard to the nature of WONG's repeated disciplinary offence and his supervisory position, we consider that his misconduct warrants removal from office. CP's recommendation of awarding him a punishment of compulsory retirement is considered appropriate. In accordance with section 6(1)(j) and (2) of the Pensions Ordinance, Cap 89, the payment of his pension will be deferred until he attains the age of 55."

32. The minute contained reference to various points the Applicant had submitted in mitigation. In his regard, it read:

"On 22 May 2000, WONG submitted his representations to the CE [Chief Executive] under regulation 27(2). His submission, which is essentially a plea for a chance to remain in the Force, includes the following points -

(a) he has ceased to misconduct himself immediately upon his self-awareness of the mistakes;

(b) his work performance in the past ten years has never dropped as seen in his being recommended for promotion in 1994 and 1995;

(c) if he were a liability to the Force as said, he would not have been appraised favourably by his various supervisors in the past years;

(d) his PC subordinate involved in the issue was convicted of twelve similar offences but the punishment awarded to him was only a warning of dismissal (Note: The PC in fact was awarded a severe reprimand and forfeiture of pay in respect of each count of his offence of absence from duty plus a warning for dismissal);

(e) ...

(f) he has a clear disciplinary record, is remorseful and has pleaded guilty to his offence at the first available opportunity."

33. The minute concluded with the following recommendation.

"You are invited to direct that WONG be compulsorily retired from the service under regulation 27(3)(ba) of the Police (Discipline) Regulations, Cap 232. The CE has delegated his authority to award punishment other than dismissal to you under regulation 27 of the Regulations ..."

34. On 22 June 2000, 2 days later, the Secretary for the Civil Service endorsed the internal minute with the word 'approved'. The following day the letter to which I made reference at the beginning of this judgment was sent to the Applicant.

Severity of the punishment being 'Wednesbury' unreasonable

35. Mr Harris submitted that, when seen in light of all the mitigatory circumstances and when it is appreciated that this was an 'exceptional' punishment, the Respondent's decision to impose compulsory retirement was so severe as to be irrational.

36. The definition of irrationality in the context of public law was given by Lord Diplock in the House of Lords in Council of Civil Service Unions v the Minister for the Civil Service [1985] 1 AC 374, at page 410:

"By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provisional Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to 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. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system."

37. I accept that the imposition of a penalty, like any other decision of a public authority made in the exercise of its public function, is susceptible to review by this Court. But it is to be emphasised that this Court is not a court of appeal. What the Applicant has had to demonstrate therefore is that the imposition of the punishment was so outrageous in its defiance of logic or of accepted moral standards that no sensible person, applying his mind to the matter, could have decided to impose such a penalty. It is a high threshold and I confess that, in my judgment, the Applicant has come nowhere near to meeting it.

38. Mr Harris submitted that the punishment imposed on the Applicant was 'exceptional' in the sense that it was unique. But is that, in fact, the case? In the memorandum from the Commissioner to the Respondent dated 3 November 1999 (of which the Applicant received a copy) it was stated that in the past 5 years one other officer, a constable, had received the same punishment for the same offences. Mr Harris protested that this officer had been found guilty of 21 offences, more than 3 times the number of offences to which the Applicant had pleaded guilty. That, of course, is correct. But the constable's absences from duty ranged from a matter of 2 minutes to one hour, all relatively short periods of time. This is to be compared with the following periods of absence on the part of the Applicant:

28 August 1995	1 hour 32 minutes
2 September 1995	6 hours 8 minutes
14 August 1996	8 hours 30 minutes
15 August 1996	6 hours 10 minutes

39. In addition, in my view, it is entirely rational to make a finding that the moral culpability of an officer in respect of these transgressions is greater than that of an officer of junior rank. While, therefore, I accept that the punishment given to the Applicant is a stern one, I do not think it can be said to be without precedent.

40. The principles which our courts adopt in assessing challenges of this kind have been laid down by our Court of Appeal in Au Yeung Kwok Hing v. The Attorney General Civil Appeal 205 of 1994 in which Bokhary JA (in giving a majority judgment) said the following concerning a police officer who had been compulsorily retired:

"How this appeal might be determined if one were to proceed on the basis of sympathy for the appellant is irrelevant. Sympathy is not the test. Responsibility for discipline in the police rests with the Commissioner of Police. His duty is to the public. And so is the duty of the courts.

A disciplinary offence has been committed. The person responsible for discipline has imposed punishment. He had done so within the range of his sentencing options. And he has not made any procedural error. Still the courts are asked to intervene to reduce the punishment. But the courts are not exercising appellate jurisdiction. They are exercising jurisdiction by way of judicial review. All of that being so, the courts will only intervene if the punishment is severe beyond any rational relationship to the seriousness of the offence and the situation of the offender." [My emphasis]

41. In the same case, Nazareth VP said the following:

"It is helpful to have regard to some of the considerations which have led to the well-established nature of the court's limited supervisory jurisdiction in judicial review. It is to the Commissioner and his officers that the determination and punishment of disciplinary charges have been entrusted by the legislation, and not the courts. And in discharging that function, the former are entitled, and must be presumed to have been expected, if not required, to bring to bear their knowledge and experience of the requirements and operations of the Police Force; and likewise to assess awards in the light shed by the nature and circumstances of the misconduct upon the desirability and appropriateness of the offending officer remaining in the Force. It is true that the award is severe. That does not make it irrational." [My emphasis]

42. With respect, I would add only the following to complement the observations of Nazareth VP. Disciplined forces are required to be disciplined because history, strewn as it is with crises, has shown that for those who place themselves in harm's way in order to protect the public interest, the ability to act cohesively in the face of such harm is critical. Discipline breeds the ability to act in this way. The importance of discipline, therefore, is best understood by those who most rely on it. This, in my view, is a matter which should be understood when offences against discipline committed in forces dependent upon discipline are challenged as being perverse or irrational.

43. In light of these principles, I am satisfied that the Respondent was entitled to bear in mind the following matters when reaching his decision:

(i) that the Applicant was a senior inspector commanding an operational unit of CID officers; as such he stood in a position of supervisory responsibility;

(ii) that the Applicant absented himself on 6 different occasions over a period of some 12 months and on each occasion went to Macau; he was not therefore nearby and able to be called to the station quickly if the need arose;

(iii) that in order to disguise his transgressions the Applicant made a number of false entries in his police notebook.

44. It is correct that there were a number of strong mitigating factors to be taken into account. The Applicant set them out in his petition and most of them were summarised in the internal minute placed before the Respondent. It was for the Respondent to decide what weight, if any, to give to those mitigating factors and I can find nothing irrational in the decision he must have made; namely, that they were not sufficiently cogent to allow him to remit the matter to the Commissioner for the imposition of a lesser penalty.

45. In all the circumstances, I must reject the submission that the punishment imposed on the Applicant was so severe and so exceptional as to be irrational.

Material mistakes to fact

46. Mistakes of fact may constitute grounds for judicial review. The principle was stated by our Court of Appeal in Chan Sau Mui and others v. Director of Immigration (1992) 6 HKPLR 479 per Bokhary J (as he then was) at page 488:

"It would, in my judgement, be going too far to say that no mistake of fact on the part of a decision maker can ever be brought within the scope of judicial review. Certain such mistakes can. Two conditions must be satisfied. First, it must be obvious - either because it is not denied or because the denial is palpably untenable - that the decision maker has made a mistake of fact. Secondly, it must also be obvious that the fact was of such importance that the decision might well have gone the other way if the decision maker had not been mistaken about it. If those two conditions are satisfied, the court can quash the decision by way of certiorari and, by way of mandamus, compel a reconsideration. That does not involve the court in the evaluation of evidence or the substitution of its decision for that of the decision maker. All it means is that the court will not shut its eyes to the obvious."

47. In his notice of application for leave to apply for judicial review, the Applicant identified two areas where, he said, the Respondent must have relied on material mistakes of fact in arriving at his decision. Both relate to the history of his work performance as an inspector.

(i) 'Deteriorating work'

48. In a memorandum dated 3 May 2000 from the Commissioner to the Respondent, the following was said:

"In [the Deputy Commissioner, management's] comments, he remarked that Senior Inspector WONG's repeated misbehaviour is disgraceful and will not be accepted. By his actions, he has abrogated his responsibility as a supervisory officer, set a bad example to junior officers and let the Force down. This behaviour simply cannot be tolerated. He is clearly a liability to the Force and his actions have raised doubts about his personal integrity. The [Deputy Commissioner, management] has also noted a deterioration in his performance. Having been recommended for promotion to Chief Inspector in 1994 he has since moved form a Regional Crime Unit to investigation team and more recently been posted to Uniform Branch. It was on the basis of the foregoing that non-terminatory awards ... are not considered appropriate ..." [My emphasis]

49. It is apparent that the Commissioner was of the opinion that, having been recommended for promotion to the rank of chief inspector in 1994, the Applicant's subsequent movement from a regional crime unit to an investigation team and 'more recently' to a posting in uniform branch did not indicate advancement in the force but rather a deterioration.

50. There had, of course, been an admitted deterioration since late 1998 when the Applicant learnt that he was facing serious disciplinary charges. But Mr Harris argued that the Applicant's assessments prior to late 1998 indicated no such deterioration and it was therefore wrong to suggest it. The fault, said Mr Harris, was compounded in the internal minute dated 20 June 2000 prepared for the Respondent. For that minute says the following:

"[Commissioner] has also noted his "deteriorating" performance after having been recommended for promotion to the rank of Chief Inspector of Police in 1994, having regard to his posting from regional crime unit (in April 1993) to divisional investigation team (in March 1995) and then to Uniform Branch (in January 1999)."

51. But, of course, the internal minute did not restrict itself to this one comment. As I have already indicated, various observations were made by the author of the minute and these included the following:

"Regarding his performance, we note that he could give an overall satisfactory service but it was not impressive. Furthermore, he was only recommended for promotion once in the 1994/95 promotion exercise but he was not shortlisted for an interview. A summary of his overall performance from 1988 to 1999 is at Float D."

52. Accordingly, when the Respondent came to make his decision, he had before him not only the comments of the Commissioner and the more general observations contained in the minute but also a summary of the Applicant's work record from 1988 to 1999. In short, he was not simply reliant on the Commissioner's comments.

53. If I was to accept Mr Harris' contentions, it would mean that the only yardstick open to the Commissioner for assessing performance would be the regular assessment grades. That, in my view, would be too restrictive. As a professional officer I believe the Commissioner is entitled to employ his experience and knowledge of the force. This will, among other things, include an historical view of an officer's career path.

54. But in any event, in making an independent decision, it was open to the Respondent to place what weight he deemed appropriate on the various mattes placed before him concerning the Applicant's performance. The Respondent had before him the Applicant's full performance record and could, if he so wished, have chosen to place greater weight on that. As was said in the New Zealand case of New Zealand Fishing Industry Association Inc. v. Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 552: ".... it cannot be said to be a mistake to adopt one of two differing points of view of the facts, each of which may be reasonably held".

(ii) 'Work record not impressive'

55. This challenge arises from the internal minute of 20 June 2000 in which, making an observation concerning the Applicant's history of performance, the author said: "... we note he could give an overall satisfactory service but it was not impressive". This comment said Mr Harris, was 'seriously misleading' and constituted a second material mistake of fact in respect of the Applicant's quality of performance during his years as an inspector.

56. In my view, however, it must be remembered that it was no more than a comment, a statement of opinion. It was not intended to be a statement of fact. The Respondent, in coming to his decision, had before him a number of assertions of opinion, including the detailed mitigation of the Applicant which included reference to his work and record of performance. As I have said, it was for the Respondent to weigh those various assertions.

57. But in any event, was the comment misleading? There was no evidence placed before me to show that it was. Where do the grades of 'good/very good' or 'good' stand in the hierarchy of assessment grades? What is above them and what is below? To those with knowledge of the police force and its workings a grade of 'good/very good' may well indicate that the officer concerned has provided satisfactory service; namely, service that satisfies the exacting professional standards expected of officers in the force, but it may not go so far as to indicate 'impressive' service; that is, service which stands out and impresses because of its excellence. I fail to see therefore how it can be said that the author of the minute made a statement so misleading that it amounted to an obvious mistake of fact.

58. In any event, in respect of both assertions, even if they did amount to material mistakes of fact and even if the Respondent did not have the performance record before him to correct such mistakes, I doubt very much that the outcome might well have gone the other way.

Failure to give reasons

59. Regulation 22(3) of the Police (Discipline) Regulations provides that -

"Where any report is forwarded to the Chief Executive under this regulation, the Chief Executive may -

(a) ....

(b) ....

(ba) if in all the circumstances of the case, he is of the opinion that the misconduct of the inspector is serious enough to warrant the compulsory retirement of the inspector, order that the inspector be compulsorily retired with such pension, gratuity or other benefits as he may determine."

60. There is therefore no regulatory requirement placed on the Respondent to give reasons for his decision. The regulations require only that he be of the opinion that the misconduct is serious enough to warrant compulsory retirement. But the fact that the regulations do not specifically require reasons to be given is not conclusive. As was said by Lord Donaldson MR in R v. Civil Service Appeal Board ex parte Cunningham [1991] 4 All ER 310 (at page 318):

"... ... I do not accept that, just because Parliament has ruled that some tribunals should be required to give reasons for their decisions, it follows that the common law is unable to impose a similar requirement upon other tribunals, if justice so requires."

61. Lord Donaldson then cited the words of Lord Bridge in Lloyd v. McMahon [1987] 1 All ER 1118 (at page 1161):

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

62. In summary, reasons will be required 'if justice so requires' or if it is needed as a procedural safeguard to ensure, 'the attainment of fairness'. But as I said in a recent judgment (So Chung v. Commissioner of Correctional Services HLAL 2483/2000):

"But that is not to say that there now exists any rule of common law or of procedural fairness to the effect that a public authority must always give reasons for its decisions. Nor, as I understand it, does there exist a duty generally to give reasons subject only to reasonable exceptions that have evolved by way of empirical experience. The English Court of Appeal in R v. Royal Borough of Kensington and Chelsea ex parte Grillo (1995) 28 HLR 94 found that it was not a correct statement of the law to state, as Sir Louis Blom-Cooper QC had said in R v. Lambeth London Council ex parte Walters, that English law had "now arrived at the point where there is at least a general duty to give reasons whenever the statutorily impregnated administrative process is infused with the concept of fair treatment to those potentially affected by administrative action."

As I have already said, what will be implied by our courts is only so much as is necessary by way of procedural safeguards to ensure fairness. But the standards of fairness are not immutable. Lord Mustill noted in R v. Home Secretary ex parte Doody [1994] 1 AC 531 (at page 560) that what fairness demands is not to be applied by rote identically in every situation; it is dependent on the context of the decision."

63. Our Court of Appeal stated the matter plainly in Re a Solicitor [1999] 3 HKLRD 406 in which the headnote reads:

"Whether a Tribunal should be required to give reasons, depended upon whether in the particular circumstances of the case that was what fairness required."

64. The question then is whether in the circumstances of the Applicant's case, fairness dictated that the Respondent should have supplied reasons at the time he made his decision to order compulsory retirement or should have supplied reasons later when his decision was made subject to the supervisory jurisdiction of this court.

65. There is no doubt that the consequences of the decision were of the utmost seriousness for the Applicant. The decision ended his career in the police force. There has in recent years been an increasing tendency on the part of the courts to expect the giving of reasons by tribunals (or executive authorities) where the interest at issue is one which traditionally the law has viewed with 'high regard'; for example, the loss of a citizen's liberty or the loss of a career. In this regard, see R v. Higher Education Funding Council ex parte Institute of Dental Surgery [1994] 1 WLR 242. But even where the consequences are draconian, the full circumstances must be considered.

66. In the present case, the Respondent was not asked to look at the complex evidential findings of a conviction made in the face of a 'not guilty' plea. The Applicant accepted all the facts upon which the charges were based. The Respondent was required only to exercise his discretion in deciding whether the Applicant's misconduct was serious enough to warrant compulsory retirement. What was to be said in that regard? As Mr Ismail, for the Respondent, pointed out, the letter informing the Applicant of his compulsory retirement stated that the decision was made in terms of regulation 27(3)(ba) of the Police (Discipline) Regulations. In terms of that regulation, the Respondent could only have made the decision if he was satisfied in all the circumstances - including the mitigatory circumstances - that the Applicant's misconduct was sufficiently serious to merit compulsory retirement. That in itself, said Mr Ismail, amounted to a stated reason; albeit stated indirectly.

67. In any event, he asked, what more could usefully be said? Upon consideration, I am constrained to agree. The Applicant knew of the circumstances of his misconduct, he knew of his own mitigation. A recitation of the two would not have taken the matter further. In my judgment, Keith JA clearly stated the position in Re a Solicitor (supra) when, at page 419, he said.

"I think that there is a very considerable difference between the finding that a solicitor has been guilty of unprofessional conduct and a finding as to what the appropriate disciplinary sanction should be. Reasons may well be required for the former but not the latter. Take this case as an example. If the Tribunal had been required to give reasons for its view that the appellant's conduct merited suspension from practice for six months, I rather doubt whether the Tribunal would have been able to do much more than state that, taking into account the appellant's personal circumstances, and the circumstances in which the contraventions occurred, the seriousness of what he did merited his suspension from practice.

68. The position was further stated by Liu JA in Tong Pon Wah v. Hong Kong Society of Accountants [1998] 2 HKLRD 427 (at 445) when he said:

"The disciplinary committee expressed in no uncertain terms that they were satisfied on the evidence that the charge was proved. Clearly, the disciplinary committee could so find and that was sufficient. See Peatfield v General Medical Council [1986] 1 WLR 243. It is perfectly obvious, even without any express reference in the decision, what the disciplinary committee was addressing its mind to and what conclusion it had reached. In this simple charge nothing more could be added to the very decision itself by further elaboration. The decision as given need not be further explained or supplemented by reasons. In all the circumstances, I am unable to say that in the context of his right to appeal, the bare decision of disciplinary committee, in the way it was pronounced, was unfair to the appellant."

69. It is not disputed that, if the penalty was truly exceptional, as Mr Harris contended, then fairness may well have dictated that the Respondent supply reasons. Such reasons would have been required to explain what was otherwise inexplicable. But as I have said earlier in this judgment, I am satisfied that the penalty was not exceptional. Indeed, in my view, it fell well within the range of penalties rationally available.

70. I am therefore satisfied that a failure by the Respondent to give stated reasons in this case did not vitiate an otherwise rational decision nor was it unfair to the Applicant.

Delay constituting an abuse of power

71. The foundation of the challenge made by Mr Harris under this heading is to be found in the wording of section 20 of the Interpretation and General Clauses Ordinance, Chapter 1, which reads:

"Where no time is prescribed or allowed within which any thing shall be done, such thing shall be done without unreasonable delay, and as often as due occasion arises."

72. Mr Harris submitted that if a public authority is guilty of unreasonable delay in fulfilling its statutory obligations, it contravenes section 70 and therefore acts unlawfully. Accordingly, its unlawful acts are liable, on review, to be quashed by the courts. As to the meaning of 'unreasonable delay' in matters of judicial review, Mr Harris suggested that assistance may be obtained from the principles applicable to the dismissal of civil actions for want of prosecution; namely, that the delay should be 'inordinate and inexcusable'.

73. While I accept that delay may constitute a ground for judicial review in terms of which an order of prohibition may be issued, in my judgment the delay must be of such a nature that it amounts to an abuse of the power of the tribunal or public authority and is of such a nature as to amount to a breach of natural justice. In the absence of some improper, and it may be mala fide, use of its procedures, I believe that the occasions on which a tribunal or public authority would be prohibited from proceeding would be rare. In this regard, I would rely on the dicta of May LJ in R v. Chief Constable of the Merseyside Police, ex parte Calveley and others [1986] 424 at 439:

"Although judicial review can provide an effective, convenient and relatively swift remedy, it should only be granted, particularly were the basis of the application is merely delay in taking the necessary proceedings, where this can properly be described as amounting to an abuse of process. Unnecessary delay in legal and analogous proceedings, such as the disciplinary ones in the instant case, is of course to be deplored, but it does occur and, in the absence of mala fides, should not tempt one to resort to judicial review where no real abuse or breach of natural justice can be shown."

74. Mr Harris, quite properly, has not suggested any mala fides on the part of the Respondent or improper use of its procedures smacking of abuse. But he submitted nevertheless that the delay in this matter was so inordinate as to amount to an abuse, indeed an abuse which constituted a breach of natural justice. What must be remembered, he said, is that the Applicant was at all times kept in a state of uncertainty as to his future. Would he be allowed to remain in the police or not? If not, the impact on his life would be immense. This state of uncertainty placed him under emotional pressure, a form of punishment in itself, and it was in this regard that there was an abuse of process. Decisions of such magnitude should be made within a reasonable time, he argued, and if they are not then the courts should prohibit them being made at all.

75. I readily accept that the Applicant must have been under emotional pressure waiting for the decision to be made just as persons awaiting trial are under emotional pressure. But, of course, there must always be some delay. Justice delayed, as the saying goes, may be justice denied but a rush to judgment may be equally unjust. The question to be asked is whether, in the circumstances of this case, the delay (not in any way tainted with bad faith) was of such a nature as to amount to an abuse of process.

76. I have earlier in this judgment set out in some detail the chronology of events culminating in the Respondent's decision to order the Applicant's compulsory retirement. From the disciplinary hearing at which the Applicant pleaded guilty (4 May 1999) to the making of the decision under challenge (22/23 June 2000) a period of 14 months elapsed. Other than a period of some 4 months from mid-December 1999 until late April 2000 when little appears to have happened, it is plain that the matter did not lie dormant. Due process was followed: petitions were lodged, reports and memoranda were passed.

77. It is true that for a period of some 7 months both the Applicant and the Respondent were mistaken as to the nature of the proceedings, a matter which had to be rectified in May 2000. That is unfortunate, and showed perhaps a lack of care on the part of the Commissioner's staff and those of the Respondent, but it cannot be taken further than that and I fail to see how it could possibly be labelled an abuse of process.

78. It may well be, as Mr Harris suggested, that normally the reasonably simple process of assessing an appropriate punishment can be achieved, in a matter of 3 to 4 months, even allowing time for the submission of a petition containing mitigation. But not all matters proceed normally and what is outside the normal does not by that fact alone constitute an abuse.

79. In the present case there was an unfortunate delay. The greatest part of that delay is explained by a mutual mistake in procedure. But once that mistake was recognised the matter was brought to a conclusion with reasonable swiftness.

80. In all the circumstances, with respect to the ingenuity of Mr Harris' arguments, I do not believe that the facts of this matter come anywhere near to showing that either the Commissioner or the Respondent were responsible for a delay constituting an abuse or process and thereby a breach of section 70 of the Interpretation and General Clauses Ordinance.

Conclusion

81. For the reasons that I have given in the body of this judgment, I am satisfied that all of the Applicant's challenges must fail.

82. As for costs, there will be an order nisi awarding costs to the Respondent