WONG KIM MING v. THE COMMISSIONER OF POLICE

1995, MP No. 2718

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On 24 March 1994, the applicant was tried on a disciplinary charge. The charge alleged that, on 14 October 1993, the applicant took part in a game of chance or skill in a police building contrary to Police General Orders. The brief facts of the case prepared for the purpose of the disciplinary hearing reveal no more than that the applicant and some other police officers admitted gambling in the barrack room at the Airport Police Station during the early hours of the morning on 14 October 1993.

2. The record of the proceedings at this disciplinary hearing show that the prosecutor was a Chief Inspector of Police and that the applicant was unrepresented. The applicant pleaded guilty. The facts of the case were read to the applicant. He confirmed them to be accurate. Mitigation was given. The tribunal officer recorded that, when he told the applicant that he considered his power to award punishment to be inadequate, the applicant was "stunned". The officer told the applicant that he took a serious view of gambling, and that he considered it necessary to remit the matter to a senior police officer with the recommendation that dismissal "be seriously considered", but, because of the applicant good record, his apparent remorsefulness and his family circumstances, he would also recommend the matter of suspension be considered.

3. On 6 April 1994, a senior police officer recorded that he had carefully considered the nature and circumstances of the offence, that he was satisfied that the offence was of such gravity that dismissal from the Force was warranted, but because of the applicant's good service record, his mitigation statement and the recommendation of the tribunal, suspension of the punishment for 12 months was appropriate. He confirmed the finding of the tribunal and awarded punishment of dismissal suspended for 12 months. The applicant was informed of this on the same day.

4. The senior police officer, as he was obliged to do under regulation 14(4) of the Police (Discipline) Regulations (Cap. 232), sent the defaulter report to the Force Discipline Officer (the FDO). For reasons not explained, and not clear to me, the report was sent to the FDO through -

the Regional Commander,

the Chief Staff Inspector, Discipline Section,

the Staff Officer, Discipline, and

the Senior Staff Officer, Conditions of Service.

5. I can, of course, understand why these officers should be informed of the proceedings. Judging by their titles, they have an obvious interest, but the only reason I can think of for the report being sent through them on its way to the FDO is so that they could make comments for the consideration of those next in line and, ultimately, the FDO. I am not told whether or not they did make comments, but I am told that, on 16 May 1994, the Senior Staff Officer, Conditions of Service "had a brief discussion of the case" with the FDO. I am not informed of what was said during this "brief discussion". Apparently, the FDO had not received the report at this time; "it was still with [the Senior Staff Officer, Conditions of Service] for further action." The report was eventually forwarded to the FDO on 28 May 1994.

6. On 31 May 1994, the FDO set aside the finding of the tribunal and ordered a re-hearing of the case by another tribunal. The record of the FDO's action says simply "I set aside the finding of guilty and order a rehearing of the case on the same charge" by another tribunal. It is essentially this decision that is brought before me on judicial review.

7. In a memo to the applicant dated 6 June 1994, he was informed that "in Reviewing the case, the Force Discipline Officer has determined that the award of 'Suspended Dismissal' was given in the absence of any information relating to the extent of the gambling", and, therefore, he had set aside the finding and ordered a re-hearing of the case.

8. I have before me an affirmation filed on behalf of the respondent. This affirmation is made by a Woman Chief Inspector of Police, who says that she is the Chief Inspector, Discipline, in the Personnel Management Branch of the Force.

9. It is the decision of the FDO that is being brought to this court on review. When the decisions of a person exercising judicial functions are brought on review, I think the court is entitled to hear from that person himself as to his reasons for his decisions. It is upon the reasons for decisions that a judicial review often turns. How can a court say whether or not a decision is within the jurisdiction of the person making it or whether or not his reasons are "Wednesbury" reasonable unless it hears the reasons from him?

10. In this case, all I have is a statement by the Woman Chief Inspector that, when making his order of the 31 May 1995, the FDO "took into account the fact that the award of 'Suspended Dismissal' was given in the absence of any information relating to the extent of the gambling.". How does she know that? Presumably, he told her so. Why did he not tell me so himself? He does not say this in his record of the setting aside of the finding of guilty. The Woman Chief Inspector goes on to say - "It is noted, in particular, that the following matters had not been revealed to the First Tribunal during the disciplinary hearing :-

a) the role played by the Applicant in that incident as the banker;

b) the gambling stakes involved on that occasion;

c) the debts incurred by the losers. The Applicant admitted that he had won a total of about $170,000 on that occasion which included a few thousand dollars in cash and the rest being on credit."

11. What does this mean? This is noted by whom? When? I assume is it intended to say that the FDO noted this when he made his decision, and that this was part of his reasons for setting aside the finding and ordering a rehearing.

12. It is said that these matters were not set out in the brief facts before the first tribunal. It is also said one of the applicant's statements, although mentioned in the brief facts, was not produced to the first tribunal or the senior police officer. This is noted, presumably, because at least some of the information seen of importance was contained in that statement.

13. So, the applicant was tried again. Having, no doubt, a pretty good idea of what was in store for him this time, he pleaded not guilty, but he was found guilty on 24 January 1995. Again, the tribunal decided that the punishment it could award was insufficient, and referred the making of the award to a senior police officer. The senior officer confirmed the finding and told the applicant this. The applicant was invited to make any representation he wished before an award. He had nothing to add to what he had already said. An award of dismissal was made, and the applicant was informed of this. Not too surprisingly to me, or, I imagine, to the applicant, the FDO confirmed this finding and this award. It is clear that this is what the FDO wanted to achieve. The applicant was informed of this. There was again a long delay between the confirmation and award by the senior police officer on 30 January 1995 and the confirmation by the FDO on 31 March 1995. The Legislature, in laying down fairly tight time-limits, clearly intended that these matters should be dealt with expeditiously. I assume the delay was again caused by the transmission of the defaulter report through officers who had no right to have anything to do with the review of disciplinary proceedings, only to be informed.

14. The jurisdiction of the FDO under regulation 14(5) of the Police Discipline Regulations is that, within 14 days of the receipt by him of the defaulter report -

"(a) in respect of the finding -

(i) confirm the finding; or

(ii) vary the finding and substitute any finding which the appropriate tribunal could have made on the evidence adduced; or

(iii) subject to paragraph 6(c), set aside the finding and order a rehearing of the case on the same or other charges by another appropriate tribunal;

(b) in respect of any award, where he confirms or varies the finding -

(i) if no punishment was awarded, award any punishment that he is empowered to award; or

(ii) confirm the award; or

(iii) remit the award; or

(iv) subject to paragraph (6)(a) and (b), substitute any other award that the senior police officer is empowered to award.

(6) The Force Discipline Officer shall not -

(a) substitute for any award any greater award without first calling on the defaulter to show cause why such award should not be increased; or

(b) substitute for a finding of not guilty a finding of guilty; or

(c) order a rehearing where the finding, as confirmed or varied, was one of not guilty."

15. So, it is clear that the FDO had the jurisdiction to set aside the finding and order a rehearing. It is also clear that, when doing so, the FDO is acting in a judicial capacity. He is part of the procedure for the trying of disciplinary offences, acting in a supervisory role. He is, in no sense, a prosecutor. The Legislature obviously intended that these matters should be dealt with in a fair and judicial manner. It follows that the FDO cannot exercise his powers on a whim or for some improper purpose. He must have some good reason for acting in terms of the powers given to him. In particular, he cannot set aside a finding of guilty unless there is something "wrong" with that finding. Quite clearly, there was nothing "wrong" with the finding in this case. The applicant had pleaded guilty to the charge put to him, the charge was perfectly valid in the circumstances and the tribunal dealt with the matter properly. The FDO, either directly or indirectly, does not give any reasons at all for setting aside the finding. The only thing that is said is that the award was made in the absence of certain information; information that was in the hands of the prosecutor, but not, it is suggested, produced at the hearing.

16. Ms Watson told me that a possible reason for the FDO acting in this way was that he might have thought that it was fair to the applicant to have a rehearing so that he could deal with the more serious allegations that would be made at that rehearing. That may well be so, but I am not told by the FDO that this was his reason. In any event, I am more inclined to think that what motivated the FDO was the realisation that he could not legitimately increase the award under regulation 14(5)(b)(iv) on the basis of the facts adduced at the original hearing, and on which the applicant was convicted. He knew, I believe, that he had to get those aggravating features on the record before an immediate dismissal could be justified.

17. And there is another matter that makes me very unhappy. From whence did the FDO learn of these aggravating features of the case? Not, apparently, from the defaulter report. So it must have been from some extraneous source. I am not told, but it seems likely that, during the process of the defaulter report being routed to him, someone found out about them, and drew them to his attention. Perhaps this was done during the "brief discussion" about which I am given no details. The question that arises is: Is it right, under our system of justice, for aggravating facts available to the prosecution at the time of a trial, but not adduced then, to be conveyed in an informal manner to a person acting in relation to the trial in a supervisory judicial capacity, and then used by that person as a reason to order a rehearing so that the prosecution can have a second bite at the cherry, and lead those aggravating facts at the new trial to achieve a more severe penalty? I would have thought that the answer to that question was most certainly in the negative. All my instincts rebel against the idea that this procedure could possibly be in accordance with natural justice, or in accordance with the procedure envisaged by the Legislature when it drew up the scheme of prosecution of disciplinary offences.

18. In my view, it is a mockery of justice for a supervisory judicial officer to get involved in making sure that aggravating facts are taken into account to ensure that a more severe punishment is imposed, and then, when this has been done, to review the matter and solemnly tell the accused that he confirms the finding and award that he set out to achieve by his intervention in the first place. This cannot be right.

19. In all the circumstances of this case, the decision of the FDO on 31 May 1994 to set aside the finding of the original tribunal and order a rehearing is quashed. It follows that the decisions made consequent upon this must also be quashed. The decision of the original tribunal stands, as does the confirmation of that tribunal's finding and the award made.

20. It seems, on the face of it, that the applicant is entitled to his costs, and I make an order nisi accordingly.