KONG KWOK KEUNG v. COMMISSIONER OF POLICE

CACV 40/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 40 OF 2013

(ON APPEAL FROM HCAL NO. 128 OF 2012)

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BETWEEN

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JUDGMENT

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Hon Lam JA (giving the Judgment of the Court):

1.  The Applicant is a police officer. In this appeal, he appeals against the refusal of Fung J [“the Judge”] to grant leave to him to seek judicial review in respect of several decisions in police disciplinary proceedings against him which culminated in a decision of the Commissioner on 12 July 2012. By that decision, the Commissioner ratified the finding of guilt and the sentence of reduction in rank and warning for dismissal.

2.  The relevant charge was a charge under PGO 6-01(8) (1999 version) [“Order 8”].  Order 8 reads:

“A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment stemming from financial imprudence which leads to the impairment of an officer’s operational efficiency will result in disciplinary action.”

3.  After hearing submissions from the parties, we take the view that the contentions advanced on behalf of the Applicant are reasonably arguable and leave to apply for judicial review should be granted.  The following are our brief reasons for coming to that view.

4.  Mr Kwok’s submissions on behalf of the Applicant focused on the proper interpretation of Order 8 in light of the Court of Final Appeal’s judgment in Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237. In a nutshell, counsel submitted that in view of Lam Siu Po, the approach adopted in Tu Kin Yip v Secretary for Justice HCAL 147 of 2001 on the definition of “operational efficiency” in Order 8 had to be further qualified and the putative respondent (and the Judge as well) erred in law in equating the restrictions placed upon the posting of the Applicant as impairment of his operational efficiency when his actual work performance was impeccable.

5.  Before the Judge, Mr Kwok’s submission in this respect was set out at para 33 of the judgment below,

“… impairment of operational efficiency can only be looked at from the management point of view provided that: (1) the facts relied on in placing the Applicant on restricted duties must arise from the serious pecuniary embarrassment; and (2) the finding of facts must be supported by objective evidence.”

6.  Counsel submitted that in the present case, even though the officer who imposed the restrictions on the Applicant gave evidence to show that he had considered the Applicant’s case on its own merits in imposing the restrictions, some of the considerations did not arise from serious pecuniary embarrassment and, as such falling outside the scope of the charge. In contrast, the Court of Final Appeal held in Lam Siu Po that there must be a causal connection between the impairment of operational efficiency and the serious pecuniary embarrassment.

7.  In our judgment, it is necessary to distinguish between two questions:

(a) Whether it was reasonable for the commanding officer to impose restrictions on the deployment of the Applicant from the management point of view; and

(b) Whether the serious pecuniary embarrassment in question had led to the impairment of his operational efficiency.

8.  There are cases where it is perfectly reasonable for the management to impose restrictions on the deployment of an officer due to his serious pecuniary embarrassment without it being satisfied that the pecuniary embarrassment had caused any impairment to his operational efficiency.  This is illustrated by the facts of Lam Siu Po.  In that case, as appeared from the first instance judgment of Chung J, restrictions were imposed in the duties assigned to him, see para 24 of the judgment in HCAL 7 of 2003, 23 August 2005.  Despite that, the Court of Final Appeal held that one cannot conclude inevitably that there had been impairment to operational efficiency.

9.  Likewise, in the case of Chan Kang Chau Clarence v Commissioner of Police HCMP 2824 of 2004, 29 December 2004, restrictions were placed on the officer in terms of bearing firearms and assignment of duties, see para 37.   In a subsequent application for leave to appeal out of time made after the clarification of the law by Lam Siu Po, Tang VP in a judgment given on 6 May 2010 accepted that it could not be said that the conviction of such officer of a charge under Order 8 was inevitable,  see para 11.

10.  In that connection, it is also relevant to have regard to the comments of Ribeiro PJ in Lam Siu Po at paras 160-161 on Chan Kang Chau Clarence.

11.  Also, at paras 163 to 166, Ribeiro PJ highlighted that the Police Force itself regarded impairment of operational efficiency as a question of fact and evidence.

12.  In light of these, it is reasonably arguable that one must look beyond the mere fact that restrictions were reasonably placed upon the deployment of an officer in determining whether there had been any impairment of operational efficiency.  There is room for argument that the approach in Tu Kin Yip (adopted by the Adjudicating Officer and the Judge in the present case) may have to be modified.

13.  At the same time, we can see the force behind Chung J’s regard for the purpose of having Order 8.  We also agree with the Judge’s observations on the importance placed upon the standard, integrity and honesty of police officers at paras 42 to 43 of the judgment.  But whether all considerations pertaining to standard, integrity and honesty are relevant in proceedings under Order 8 need to be examined with care.  This is because, as observed by Bokhary PJ (as he then was) in Lam Siu Po at para 29, Order 8 is a penal provision.  At this stage, as we are only concerned with whether leave should be granted, we need not come to any concluded view on the correct construction of Order 8.

14.  It is reasonably arguable that the Adjudicating Officer had equated the deployment restrictions per se with impairment of operational efficiency, see his judgment at paras 52 to 54. 

15.  For these reasons, we would allow the appeal and grant leave for the Applicant to apply for judicial review.  The costs of the appeal and below shall be costs in the cause of the application for judicial review.