LAU KWOK FAI BERNARD v. COMMISSIONER OF POLICE AND ANOTHER

HCAL95/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 95 OF 2003

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J U D G M E N T

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1.  In these proceedings, the applicant applies to judicial review the following decisions:

(1)	The decision of the Commissioner of Police (“the Commissioner”) made on 1 June 2001 wherebythe applicant was interdicted from duty with effect from 1 June 2001, in consequence thereof :-
	(a)	no pay or allowance was paid to the applicant with effect from 1 June 2001,
	(b)	the applicant was required to give to the Commissioner at least 24 hours advance notification in writing of his intention to leave Hong Kong, and to seek exemption from the Commissioner should he wish to leave Hong Kong for any period that would affect the daily reporting condition associated with his interdiction; and
	(c)	the applicant might not take up any form of paid employment without the permission of the Commissioner.
(2)	The decision of the Secretary for the Civil Service (“the Secretary”) dated 10 June 2003, as delegate of the Chief Executive, imposing punishments as follows:-
	(a)	dismissal with effect from 13 June 2003 for the conviction of indecent assault,
	(b)	severe reprimand and forfeiture of one month’s pay for the conviction of driving whilst disqualified,
	(c)	severe reprimand and forfeiture of one month’s pay for the conviction of driving without third party insurance, and
	(d)	reprimand for the conviction of speeding.

THE FACTUAL BACKGROUND

2.  The applicant joined the Police Force as an inspector in January 1983.  In 1988, he was promoted to be senior inspector.

3.  On 18 September 2000, the applicant was disqualified from driving all classes of vehicles under the points demerit system for a period of six months.  Two months into the disqualification period on 19 November 2000, the applicant was found driving a private car at a speed of 147.8 kmh when the speed limit at the location was 100 kmh.  The applicant was arrested and charged with three offences of speeding, driving whilst disqualified and driving without third party insurance. He pleaded not guilty at the first court appearance.  At the hearing on 31 May 2001, he changed his plea and admitted the brief facts.  He was convicted of all charges, and was fined and disqualified from driving all classes of vehicles for 16 months.  There was no review or appeal against the convictions and sentences.

4.  As a result of the convictions, the Assistant Commissioner of Police (Personnel) in exercise of his delegated power, directed that the applicant be interdicted from duty with effect from 1 June 2001.  The applicant was informed of the decision by a memo from the Commissioner dated 1 June 2001.  By the same memo, the applicant was informed that under section 37(4) of the Police Force Ordinance (“PFO”), no pay or allowance was payable to him.  The applicant was also reminded that he could not take up any form of paid employment without the permission of the Commissioner, and that he was required to notify the Commissioner in writing of his intention to leave Hong Kong at least 24 hours before departing and was also required to fulfil reporting condition associated with his interdiction in accordance with the Police General Order 6-06(1) (“GPO 6-01(1)”).  The memo further informed the applicant that consideration was being given to recommending to the Chief Executive that a terminatory reward be imposed on him under section 37(5) of the PFO and the applicant was invited to show cause within 14 days why his service should not be terminated. 

5.  On 15 June 2001, the applicant made his representation to the Commissioner.  Prior to that, the applicant was charged with an offence of indecent assault and was awaiting trial.  The Commissioner therefore decided to withhold any recommendation to the Chief Executive for punishment in connection with the traffic offences pending the determination of the indecent assault case. 

6.  On 22 October 2001, the applicant was convicted after trial of the offence of indecent assault.  The victim involved was a serving woman police constable who was an ex-subordinate of the applicant.  The incident took place on 14 April 2001 after a dinner at a restaurant attended by the applicant and a group of his colleagues, including the victim.  The applicant embraced the victim from behind, touched her breast and asked her to spend the night with him.  The victim refused and struggled to get free.  The applicant was fined $3000 for the conviction.

7.  On 24 October 2001, the Commissioner informed the applicant that he would recommend to the Chief Executive that a terminatory punishment be imposed on him under section 37(5) of the PFO and invited the applicant to make representation as to why his service should not be terminated.

8.  The applicant appealed against the conviction of indecent assault.  By a memo dated 15 November 2001, the Commissioner informed the applicant that action under section 37(5) of the PFO would be suspended pending the determination of the appeal. 

9.  On 12 July 2002, the Court of First Instance dismissed the applicant’s appeal.  The applicant’s application for leave to appeal to the Court of Final Appeal was dismissed by the Appeal Committee on 18 September 2002.  By a memo dated 16 October 2002, the Commissioner invited the applicant to make representations in mitigation of punishment.  On 2 November 2002, the applicant submitted his written representations.

10.  On 16 December 2002, the Deputy Commissioner of Police (Management) in exercise of his delegated power, made recommendation to the Chief Executive to impose the following punishments on the applicant under section 37(5) of the PFO:

(1)	Speeding	Reprimand
(2)	Driving whilst disqualified	Compulsory retirement with deferred benefit
(3)	Driving without third party Insurance	Compulsory retirement with deferred benefit
(4)	Indecent assault	Dismissal

11.  By a memo of the same date, the applicant was served with a copy of the recommendation and was invited to make representations to the Chief Executive within 14 days on any awards that he may make under section 37(5) of the PFO.

12.  On 3 January 2003, the applicant requested the Civil Service Bureau (“CSB”) to provide him with a copy of the transcript of his trial on the indecent assault case, and further requested for the time to make representations be extended to after receipt of the court transcript.  By a letter dated 10 January 2003, the CSB replied that it did not have the court transcript and the applicant was told to approach the relevant authority to obtain the same. 

13.  On 18 February and 14 March 2003, the applicant submitted his written representations to the Chief Executive.

14.  Having considered the applicant’s representations, the processing officers of the CSB agreed with the Commissioner on the recommendations relating to the convictions of indecent assault and speeding, but disagreed with the recommendations on the convictions of driving whilst disqualified and driving without third party insurance.  In respect of each of the latter two convictions, the processing officers recommended severe reprimand and forfeiture of one month’s pay as punishment.

15.  On 10 May 2003, the processing officers’ comments were forwarded to the applicant for his representations, if any, within 14 days.  The applicant applied on 2 June 2003, after the 14 days’ period, for an extension of time to make representations.  A three days’ extension was given. The letter notifying the applicant of the extensionwas handed to him personally on 3 June 2003.

16.  The applicant did not make any representation within the extended period.  On 9 June 2003, the Secretary, acting as the Chief Executive’s delegate to award punishment under section 37(5) of the PFO decided to award the following punishments against the applicant:

(1)	Speeding	Reprimand
(2)	Driving whilst disqualified	Severe reprimand with forfeiture of one month’s pay
(3)	Driving without third party Insurance	Severe reprimand with forfeiture of one month’s pay
(4)	Indecent assault	Dismissal

17.  By a letter dated 10 June 2003, the applicant was informed of the Secretary’s decision.  The dismissal took effect on 13 June 2003.

THE JUDICIAL REVIEW APPLICATION

18.  On 15 September 2003, the applicant applied for leave to judicial review.  Leave to judicial review was granted on 3 October 2004.  On 17 October 2003, the applicant filed the Notice of Motion. 

19.  In his Form 86A, the applicant seeks the following relief:

(1)	A declaration that the Commissioner’s decision to interdict the applicant from duty is inconsistent with section 17(1)(a) of the PFO and is unlawful, irrational and unfair and of no effect.
(2)	A declaration that the Commissioner’s decision ordering that no pay or allowance be payable to the applicant is unlawful, irrational and unfair and of no effect.
(3)	A declaration that the Commissioner’s decision requiring the applicant to give prior written notice of his intention to leave Hong Kong and to seek exemption from the Commissioner should he wish to leave Hong Kong for any period that would affect the daily reporting condition associated with his interdiction, s in breach of Article 31 of the Basic Law (“BL”) and Article 8 of the Hong Kong Bill of Rights Ordinance (“BORO”), cap. 383 and is unconstitutional, unlawful and of no effect.
(4)	A declaration that the Commissioner’s decision as a whole is in breach of Article 35 of the BL and is unconstitutional, unlawful and of no effect.
(5)	A declaration that the Commissioner’s decision as a whole is in breach of Article 11 of the BORO and is unconstitutional, unlawful and of no effect.
(6)	Remedies for contravention of the BORO as stipulated in section 6, Part I of the BORO.
(7)	A declaration that the Secretary’s decision is unlawful, procedurally unfair, irrational and of no effect.

THE COMMISSIONER’S DECISION

20.  The applicant challenges the Commissioner’s decision on a total of eight grounds.  I will deal with them in the sequence as they are set out in the Form 86A.

(1)    Interdiction unlawful

21.  The applicant’s first ground of challenge is that the interdiction was unlawful in that section 17(1)(a) of the PFO did not extend to interdiction for conviction for criminal offence.

22.  Section 17(1)(a) of the PFO provides that:

“	(1)	If the Commissioner considers that the public interest requires that a police officer other than a gazetted police officer should cease to exercise the powers and functions of his office forthwith, he may interdict the police officer from the exercise of such powers and functions where –
		(a)	disciplinary or criminal proceedings are being instituted or are about to be instituted against such officer; or …	”

23.  The applicant contends that when the decision to interdict him was made on 1 June 2001, there was no criminal or disciplinary proceedings being or about to be instituted because the criminal proceedings relating to the three traffic offences were concluded on 31 May 2001 upon the pronouncement of his convictions and the passing of sentences, and the action under section 37(5) of the PFO was not disciplinary proceedings.

24.  For the respondent, it is argued that the criminal proceedings did not cease to be instituted on 31 May 2001 in that the time for review or appeal remained operative for 14 days thereafter.  It is further argued that disciplinary proceedings under section 37(5) of the PFO were being or about to be instituted against the applicant when the decision to interdict was made on 1 June 2001.

25.  In my view, the applicant’s contention is misconceived.  While it may be said that the proceedings before the Magistrate relating to the three traffic offences came to an end when the applicant was convicted and sentenced on 31 May 2001, plainly on 1 June 2001 disciplinary proceedings against the applicant were being instituted or to be instituted.  It is for this reason that he was invited by the same memo to make representation to the Chief Executive as to why a terminatory punishment should not be made.  There is no merit in the applicant’s argument that action under section 37(5) of the PFO does not entail disciplinary proceedings.  Section 37(5) allows the Commissioner to initiate disciplinary sanctions against police officers who have been convicted of criminal offences.  It is by any view part of a process of disciplinary proceedings.

26.  Further, although as a matter of fact, there was no review or appeal against the applicant’s conviction and sentence, it is evident from the provision in section 17(2)(a) dealing with the effect of interdiction on an officer’s pay, that the statue envisages interdiction to take place or be continued after conviction and sentence. 

(2)    Interdiction irrational

27.  The applicant’s second ground of challenge is that the decision to interdict is irrational given that the offences in question are traffic offences and in view of the Secretary’s disagreement with the Commissioner’s recommendation of terminatory punishment for two of these offences.

28.  To succeed in this challenge, the applicant must demonstrate that the decision to interdict is Wednesbury unreasonable and not merely a harsh or severe decision.  The court will only intervene if the decision “is severe beyond any rational relationship to the seriousness of the offence and the situation of the offender”: Au Yeung Kwok Hing v. The Attorney General (unreported) Civil Appeal No. 205 of 1994, per Bokhary JA (as he then was) at p.14 and per Nazareth VP at p.22.

29.  In the memo to the applicant, the Commissioner explained the decision to interdict as follows:

“[T]he offences for which you were convicted were very serious in nature.  In particular, your criminal conviction for driving whilst under disqualification is a blatant disregard of the law and it is indicative of you having shown no respect to the court orders.  Your misconduct has cast serious doubt upon your integrity and suitability for continued service as a police officer.”

30.  Plainly, the Commissioner took a serious view of the offences because they represented wilful disregard for the law and court orders.  The Commissioner’s view was shared by the applicant’s own counsel who accepted in the course of mitigation that the offences were serious and objectively viewed, showed a flagrant disobedience of a court order.  Indeed the magistrate in passing sentence also described the circumstances of the case as very serious, and indicated that the applicant should consider himself fortunate to have narrowly escaped an immediate custodial sentence on account of the mitigations that had been urged on his behalf.

31.  The Commissioner’s conclusions on the gravity of the offences and the case are amply justified.  It cannot be said to be in any way so illogical or outrageous that no sensible person applying his mind to the matter could have come to the same conclusion: see the judgment of Hartmann J and of the Court of Appeal in Wong Wai Tak v. the Secretary for Civil Service (unreported) HCAL 2335 of 2000 at pp.14-15 and [2002] 3 HKC 1 at 16R-17D.  This ground of challenge must fail.

(3)    Interdiction unfair

32.  The applicant’s third complaint is that the Commissioner was prejudiced against him and that there was disparity in the treatment of him and other police officers.  Among the cases cited by the applicant as comparables was an inspector, who was convicted of similar offences in January 2003, but was only interdicted in April 2003.  There was also a police constable who was convicted of driving whilst disqualified but was not interdicted.

33.  The Commissioner denies the allegation of bias and prejudice. It is also pointed out that each case was considered on its own merits and it was inappropriate to compare the applicant’s case with other cases with different circumstances.

34.  The authorities have long recognized that the responsibility for discipline in the police rests with the Commissioner, and the disciplinary officers’ professional judgment is to be respected: see e.g. Wong Wai Tak v. The Secretary for Civil Service, supra, Au Yeung Kwok Hing v. The Attorney General, supra, and Leung Fuk Wah Oil v. The commissioner for Police (unreported) HCAL 317 of 2001.  Disparity in punishments by itself is therefore not a ground for judicial review.

35.  Likewise, difference in the treatment of different officers per se does not amount to unfairness.  Neither does it in itself lead to inference of apparent bias or prejudice.  The argument of disparity in treatment was considered at length in Pang Chak Yum v. Secretary for the Civil Service (unreported) HCMP 1349 of 1995.  The late J Chan J held that disparity of treatment per se is not unfair and all would depend on the comparables used to demonstrate the unfairness of the situation.  It was further held that the correctness of the other decisions used as the comparable must first be established before such decisions can be of any use in demonstrating the unfairness of the decision under challenge.  In demonstrating the propriety of any comparable decision, its detail factual matrix, background and personal circumstances of the offender involved would have to be analysed.  The judgment also pointed out that it is wrong to accept, in absolute term and without question, the propriety of the comparable decision simply because the decision had not been appealed.  I respectfully agree with the judgment.

36.  In the present case, the full circumstances of and the considerations involved in the comparable cases are unknown.  The applicant has also not established the correctness or propriety of the comparable decisions.  The argument that the decision to interdict is unfair by reference to other cases has no proper foundation.  This is particularly so when some of the cases used as comparables took place after the decision affecting the applicant.

37.  As to the complaint of prejudice, in Deacons v. White & Case Limited Liability Partnership & Ors [2004] 1HKLRD 291 at 296-299, the Court of Final Appeal held that the test for apparent bias involves the court first ascertaining all the circumstances which have a bearing on the suggestion that the decision maker was biased and, secondly, enquiring whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision maker was biased.

38.  In the present case, given that the full circumstances of the other police officers and, in particular, the inspector who was interdicted in April 2003, are not known, there is no factual basis for the contention that there had been disparity or inequality in the Commissioner’s treatments of the applicant and the other inspector.  There is nothing on which a fair-minded and informed observer could have concluded that there was a real possibility of the Commissioner being biased against the applicant in his decision made in 2001. The third ground therefore fails.

(4)   No pay or allowance unlawful

39.  The applicant’s fourth complaint is that the Commissioner’s decision that he shall receive no pay or allowance during interdiction is unlawful. The applicant refers to section 17(2)(a) of PFO, which provides that a police officer who had been interdicted shall be allowed to receive a proportion of his pay until he is convicted of an offence whereupon the matter falls to be determined by section 37(4).  He argues that as there is no power to interdict solely on account of criminal conviction and since section 37(4) does not empower the authority to withhold pay and allowance to an officer upon his conviction, the inference is that the legislature only intends to subject officers sentenced to immediate custodial sentence to the punishment of no pay or allowance.

40.  Section 17(2)(a) of the PFO provides as follows:

“	(2)	A police officer who has been interdicted under –
		(a)	subsection (1)(a), shall be allowed to receive such proportion of his pay, not being less than one-half, as the Commissioner shall in every case direct, until such time as he may be convicted of an offence whereupon the matter shall be determined under section 37(4).	”

41.  Section 37(4) further provides:

“(4) No pay or allowance shall be payable to any police officer following the date of the finding by a court in criminal proceedings that a charge against such officer in respect of a criminal offence has been proved against him, unless the approval of the Commissioner of such payment be given.”

42.  Irrespective of the provision in section 17(2)(a) for the payment of a proportion of the pay to an interdicted officer, upon the officer being convicted of an offence, as in the case of the applicant, his position falls to be governed by section 37(4).  Section 37(4) mandates no pay or allowance shall be payable to the officer except where the Commissioner had given approval for payment. 

43.  Properly analysed, the Commissioner did not make a separate decision to withhold payment of pay or allowance to the applicant.  The non-payment of pay or allowance was by operation of law, which arose by reason of the decision to interdict and the convictions of the applicant.  The argument that the Commissioner acted unlawfully in deciding that no pay or allowance be paid to the applicant has no proper basis.

44.  The applicant relies on the opinion by Paul Goulding QC to the effect that any policy to withhold salary should, among other things, afford the individual an opportunity to make representations in respect of all relevant considerations.  The applicant argues that he had throughout not been given an opportunity to make representations on the withholding of his pay.  This argument is misplaced in that no government policy to withhold salary is engaged here. The basis for the non-payment of salary and allowance to the applicant is the legislation.

45.  The applicant also refers to the decision in Fung Yiu Bun v. Commissioner of Police [2002] 4HKC 15 and contends that the Commissioner had acted unlawfully in unilaterally altering the terms of his employment contract.  Quite apart from the fact that this is not a case of variation of contractual terms, the authority cited does not in fact assist the applicant.  After holding that there was an employment relationship between a police officer and the government, Chung J went on in Fung Yiu Bun’s case to hold further that complaints for breach of the applicant’s employment contract is not a matter of public law, but falls to be dealt with under the private law.  Accordingly, the application for judicial review was dismissed.  Thus, even if the applicant is correct in saying that the terms of his employment contract had been unilaterally altered by the Commissioner’s decision under challenge, it is not a matter for judicial review.

46.  In the course of his oral submissions, the applicant submits that the Commissioner had failed to exercise his power under section 37(4) of the PFO to approve payment to the applicant.  This argument is at variance with his Form 86A which puts the challenge on the basis that the Commissioner had by the 1 June 2001 memo decided to withhold payment of salary and allowance.  That aside, the applicant’s latest argument is without factual basis.  It is not the applicant’s case and there is no evidence that the applicant had ever asked the Commissioner to exercise his discretion under section 37(4) to approve payment of salary and allowance.  The applicant says that he was not advised to apply and he was not aware of the existence of such procedure.  This is irrelevant.  The fact remains that the applicant never sought approval for payment of salary.  That being the case, it is not open to the applicant to contend that the Commissioner had failed to exercise his power under section 37(4), let alone acted irrationally.

(5)   No pay or allowance irrational

47.  The applicant’s fifth ground of challenge is that the Commissioner’s decision to withhold pay or allowance is irrational.  The applicant contends that the Commissioner failed to have any regard for his livelihood and further points to the fact that he had been without pay for over two years.

48.  As with his fourth ground, the applicant is proceeding on the basis that the Commissioner had by the memo of 1 June 2001 made a separate decision to withhold payment of the applicant’s pay or allowance.  In truth, however, the Commissioner’s only decision was to interdict the applicant.  In consequence of the decision, section 37(4) applies and the applicant would not receive any pay.  Similarly, the Commissioner did not, as the applicant contends, make a decision to prohibit him from taking up paid employment.  Paragraph 6 of the memo dated 1 June 2001 is merely a reminder that the applicant required the Commissioner’ approval in taking up any paid employment.  It was open to the applicant to apply to the Commissioner for approval of payment or for permission to take up paid employment.  Further, the Commissioner had on 30 January 2003 written to the Director of Social Welfare requesting him to render assistance to the applicant.  The applicant did not, however, draw on the Comprehensive Social Security Assistance.

49.  In his reply submissions, the applicant says that during the period when he was interdicted, he had performed a number of duties, including carrying out the reporting conditions, attending interviews with his formation commander and acting as defence representative in disciplinary proceedings of other police officers.  The applicant argues that as such, it would be perverse for the Commissioner not to grant approval for payment of his salary.

50.  This is a new ground, on which no leave has been given to argue it at the judicial review application.  It is also at variance with the case advanced in the Form 86A.  Additionally, the argument presupposes that the Commissioner is under a positive duty to consider and make approval for payment of salary to the applicant.  Such an assumption is not warranted by the terms of section 37(4) of the PFO.  The power of the Commissioner under the section to approve payment is discretionary and not mandatory.  The Commissioner cannot be regarded as acting irrationally for not exercising the discretion when the applicant had not sought the approval from him.

(6)   No pay or allowance unfair

51.  The sixth complaint of the applicant is that the Commissioner had arbitrarily invoked his authority of stopping the applicant’s pay and allowance.  The applicant refers again to the case of the inspector who was interdicted in April 2003 for similar offences and says he had been treated differently.

52.  For the reasons discussed above, the Commissioner had not exercised any power of stopping pay and allowance to the applicant.  Further, the argument of unfairness or prejudice by reference to the case of the other inspector has no merit.  This ground of complaint must fail.

(7)   Article 31 of the BL and Article 8 of the BORO

53.  The applicant’s seventh ground of complaint relates to the requirements to give prior notification of intention to leave Hong Kong and to seek prior approval for any absence from Hong Kong that will affect the reporting condition imposed on the applicant.  These requirements stem from PGO 6-06, which provides that reporting conditions may be imposed on an interdicted officer.  It also provides that an interdicted officer who wishes to leave Hong Kong is required to give prior notification to the Commissioner, and that late or post notification is permissible in exceptional circumstances.  The applicant argues that these requirements violate the fundamental rights of freedom of movement guaranteed under Article 35 of the BL and Article 8 of the BORO. 

54.  Article 31 of the BL provides:

“Hong Kong residents shall have freedom of movement within the Hong Kong Special Administration Region and freedom of emigration to other countries and regions.  They shall have freedom to travel and to enter or leave the Region.  Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization.”

55.  Article 8 of the BORO provides:

“	(1)	Everyone lawfully within Hong Kong shall, within Hong Kong, have the right to liberty of movement and freedom to choose his residence.
	(2)	Everyone shall be free to leave Hong Kong.
	(3)	The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedom of others, and are consistent with the other rights recognized in this Bill of Rights.
	(4)	No one who has the right of abode in Hong Kong shall be arbitrarily deprived of the right to enter Hong Kong.	”

56.  Article 39 of the BL further provides, inter alia, that the provisions of the ICCPR as applied to Hong Kong shall remain in force, and that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.

57.  Under section 46 of the PFO, the Commissioner may from time to time make such orders as he thinks expedient for, inter alia, the administration of the Police Force, the efficient discharge of the duties of the Police Force and for carrying out the objects and provisions of the PFO.  The orders thus made are called Police General Orders, of which PGO 6-06 forms part.  The imposition of reporting conditions and the requirement of giving prior notification of departure from Hong Kong under PGO 6-06 are therefore prescribed by law, and their contravention is a disciplinary offence under Regulation 3(2)(e) of the Police force (disciplinary) Regulations: Fu Kin Chi Willy v. Secretary for Justice (1997-98) 1HKCFAR 85 at 102D.

58.  PGO 6-06 does not prohibit an interdicted officer from leaving Hong Kong.  It only requires the officer to give 24 hours prior written notice of his intention to leave Hong Kong.  The issue is whether the requirement of prior notice is so restrictive or so disproportionate as to violate the right of freedom of movement. 

59.  Two main reasons are put forward on behalf of the Commissioner to justify the requirement of prior notification and the imposition of reporting condition.  Firstly, it is said that an interdicted officer is or will be subject to criminal or disciplinary proceedings.  The reporting condition and the prior notice of departure from Hong Kong will ensure that any criminal or disciplinary proceedings will not be frustrated by the absence of the officer from Hong Kong and at the proceedings.  Secondly, it is pointed out that the formation commander of the interdicted officer remains responsible for the welfare of the officer and may enquire into the personal and financial problems of the officer.  The notification requirement is therefore conducive to good and efficient management and administration.

60.  I accept these are proper justifications for the reporting condition and prior notification requirement under PGO 6-06.  Considering that only 24 hours prior notice is required and that late or post notifications are accepted in exceptional circumstances, I am of the view that the requirements imposed by PGO 6-06 are proportionate and are not so restrictive as to cause an undue restriction of the freedom of movement.  I agree with Mr Ismail’s submission that it is an over-statement to say that the requirements make “any spontaneous trips or trips that are planned less than 24 hours ahead impossible”.  The evidence also shows that the reporting conditions were administered flexibly.  There was occasion whenthe applicant was told he could report to police station other than the designated one.  It was also possible for him to seek exemption from reporting, if it should become necessary.

61.  To the extent that the applicant seems at one stage to be arguing that he was not challenging the constitutionality of PGO 6-06, I am unable to understand the argument.  Given that the Commissioner by the 1 June 2001 memo was reminding the applicant of the requirements under PGO 6-06, any challenge based on breach of the BL and the BORO must necessarily involves a challenge to PGO 6-06 itself.  In short, the complaint that the Commissioner’s decision infringes Article 31 of the BL and Article 8 of the BORO cannot stand.

(8)    Article 35 of the BL and Article 11 of the BORO

62.  The applicant’s eighth and last ground of challenge to the Commissioner’s decision complains that the prolonged period of no pay and allowance has deprived him of the prospect of timely engagement of counsel of his own choice to appeal against the conviction for indecent assault, to procure the notes of proceedings to enable him to prepare the appeal and the representations to the Chief Executive.  The applicant argues that there is a breach of Article 35 of the BL and Article 11 of the BORO. 

63.  Article 35 of the BL provides:

“	Hong Kong residents shall have the right to confidential legal advice, access to courts, choice of lawyers for timely protection of their lawful rights and interests or for representations in the courts and to judicial remedies.
	Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.	”

64.  Article 11(2)(d) of the BORO provides:

“	(2)	In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
		(d)	… to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal representation, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.	”

65.  In Dr Ip Kay Lo v. Medical Council of Hong Kong [2003] 3HKLRD 851 at 856, Cheung JA pointed out that the right under Article 35 of the BL is not absolute.  The judgment stated that Article 35 is “not concerned with the provision of free legal service by the Government”, and “does not enable the litigant to insist to have a particular lawyer, even though that lawyer may not be available to handle the case or is not willing to represent him”.  It is further said that the fundamental requirement for meeting the objective of Article 35 is to ensure that the litigant is given an opportunity to seek legal representation.

66.  In the context of Article 11 of the BORO, it had been held that the Article did not confer an absolute right to free legal aid and to be provided with a full transcript at public expense: R v. Fu Yan [1992] 2 HKPLR 109, and R v. Mirchandani [1992] 2 HKPLR 196.

67.  The essence of the applicant’s complaint is that he did not have a counsel of his own choice to conduct his appeal.  But as the authorities have laid down, there is no constitutionally guaranteed right to have an appeal conducted by a counsel of the applicant’s own choice.  The substance of the rights protected by Article 35 of the BL and Article 11 of the BORO is the right to have an opportunity to seek legal representation and in turn a fair trial.  A fair trial, however, does not necessarily mean that the parties must be legally represented, let alone represented by a lawyer of his own choice: see Dr Ip Kay Lo v. Medical Council of Hong Kong at 859.

68.  The applicant did have an opportunity to seek legal representation.  He was represented by counsel at the trial in the Magistracy.  He has no complaint against the counsel who was assigned by the Duty Lawyer Scheme to represent him and his conduct of the trial.  In his own words, the counsel had demonstrated “superb professional competence” and “dedicated effort”.  The applicant, however, says that if he had been represented by a Senior Counsel, the result of his trial might have been different.  This is a speculative argument given that there is no suggestion of incompetence or inadequacy of the assigned defence counsel.  At the appeal in the Court of First Instance, the applicant had been granted three adjournments to seek legal representation before Beeson J refused to further adjourn the appeal at the hearing on 12 July 2002. 

69.  The applicant also had an opportunity to obtain the transcript of the trial before the appeal hearing, but he had not applied for it.  He had no right or legitimate expectation to being provided with a transcript at public expense.  The applicant argues that had he been provided with a copy of the trial transcript, his appeal would have a greater chance of success.  The applicant also argues that if he were able to engage counsel in time, his prospect of appeal to the Court of Final Appeal would be better.  These arguments are pure speculations.  The thrust of the applicant’s challenge on appeal was the Magistrate’s findings of fact.  The availability of the transcript will not lessen the difficulties that the applicant faced in launching an appeal against the Magistrate’s factual findings.  Further, appeal to Court of Final Appeal is only permissible where the case involves a point of great general public importance.  There is nothing to show that the applicant is anywhere near the permissible limit.

70.  The applicant therefore cannot complain that he did not stand to have a fair trial in the Magistracy or in the Court of First Instance on appeal. The complaint that there is a violation of Article 35 of the BL and Article 11 of he BORO has no merit.

THE CHALLENGE TO THE SECRETARY’S DECISION

72.  The applicant challenges the decision of the Secretary on three grounds.

(1)    Delegation by the Chief Executive

71.  The applicant’s first ground of challenge to the Secretary’s decision is that the power of the Chief Executive under section 37(5)(a) cannot be delegated to the Secretary. 

72.  Section 63(1) of the Interpretation and General Clauses Ordinance, cap. 1 provides:

“Where any Ordinance confers powers or imposes duties upon the Chief Executive, he may delegate any person by name or the person holding any office delegated by him to exercise such powers or perform such duties on his behalf and whereupon, or from the date specified by the Chief Executive, the person so delegated shall have and may exercise such powers and performs such duties.”

73.  By an Instrument of Delegation gazetted on 8 November 2002, the Chief Executive had delegated to the Secretary the exercise of the powers under section 37(5)(a) of the PFO.  By the letter dated 23 June 2003, the applicant had been informed that the Secretary was exercising the power delegated to him by the Chief Executive.  The applicant in his reply submissions lodged on 11 June 2004 accepted that the Secretary has been properly delegated and abandoned the argument.

74.  The applicant however continues to argue that the Secretary had delegated his power to officers in the CSB and that such sub-delegation is unlawful.  In answer to this complaint, paragraphs 28 and 29 of the affirmation of Wong Kwok Bun filed on behalf of the Secretary stated that two officers in the CSB had been involved in the applicant’s case as processing officers.  It further pointed out that the Secretary, being the head of the CSB, is entitled to rely on the collective knowledge, experience and expertise of the processing officers and other government officials serving directly or indirectly under the CSB, and that this was not sub-delegation of the Secretary’s authority under section 37(5) of the PFO.

75.  Clearly, the Secretary and the maker of the affirmation were having in their mind the judgment of Lord Diplock in Bushell v. Secretary of State for the Environment [1981] AC 75 at 95 which stated that:

“Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge, his own expertise.’

76.  The passage was considered by Hartmann J in Ch’ng Poh v. The Chief Executive of the HKSAR (unreported) HCAL 182 of 2002 at para.19, and was held to have equal application in Hong Kong, notwithstanding that at the time of the making of the application for judicial review that fell to be considered, Hong Kong did not have ministerial system as that system was understood in the United Kingdom.  The view of Hartmann J was shared by Cheung J (as he then was) in Kaisilk Development Ltd. v. Secretary for Planning, Environment and Lands (unreported) HCAL 148 of 1999, when he stated that:

“Hong Kong does not have the ministerial system of government.  However, in my view the Secretary is clearly entitled to rely on the collective knowledge, experience and expertise of the government officials serving directly or indirectly under his Bureau.”

77.  I respectfully agree with these judgments.  Indeed the authority to award punishment under section 37(5) of the PFO is delegated to the Secretary not as an individual but as a holder of the office of secretary for civil service.  In that capacity, the Secretary must be entitled to avail himself of the knowledge, experience and expertise of the CSB as a whole in discharging his duties and arriving at a decision under the section.  The collective knowledge experience and expertise of the processing officers as well as any other government officials serving under the CSB is to be treated as those of the Secretary personally.  There is therefore no sub-delegation of authority from the Secretary to the processing officers.

78.  The applicant argues that notwithstanding the introduction of the ministerial system to Hong Kong in July 2002, the Secretary, who was hitherto a civil servant, had retained his status as a civil servant, and that with his knowledge and expertise as a former civil servant, his reliance on the processing officers must be kept to the minimal.  The applicant therefore says that there is no justification for the processing officers to have made what he called “pre-emptive decisions”, including decision to refuse his request for transcript of the indecent assault case, without first conferring with the Secretary.  This argument plainly cannot stand in the light of the observations of Hartmann J and Cheung J in the cases referred to in the preceding paragraphs, with which I agree entirely.  Besides, the decision on the applicant’s request to be provided with the transcript is not an exercise of the power under section 37(5) of the PFO.  As to the comments the processing made on the applicant’s representations, they were to assist the Secretary in the discharge of his duties.  It is for the Secretary to consider them and to arrive at a decision under the section, in the course of which he may adopt or reject the processing officers’ views and comments, whether in part or in whole: Wong Wai Tak v. The Secretary for the Civil Service, supra, per Hartmann J at p.20.

79.  The applicant also points to the fact that Secretary made his decision on the same day the materials were placed before him for consideration as indicative of the Secretary having surrendered his independent judgment.  The applicant in his reply submissions goes so far as suggesting that from his experience in the Police Force, the Secretary would have a busy schedule on a Monday, on which 9 June 2003 fell be one, and criticises the lack of evidence as to the exact time and the duration of the Secretary’s deliberations on his case.  These, in my view, are desperate submissions that in no way advance the applicant’s challenge that the Secretary had unlawfully sub-delegated his authority.  The fact that the Secretary completed his deliberations and made his decision within the same day the papers were placed before him for consideration cannot lead to any of the speculative conclusions suggested by the applicant.  After all, the factual matrix and considerations involved in the applicant’s case, objectively analysed, are not as complicated or complex as the applicant has endeavoured to depict.

80.  This ground of unlawful delegation of authority therefore fails.

(2)   Procedural unfairness

81.  A number of matters were relied upon by the applicant under the challenge of procedural unfairness.  Firstly, the applicant again points to the fact that Secretary made his decision on the same day the materials were placed before him for consideration as indicative of the Secretary having pre-determined the matter or was actuated by the motive of depriving him of the locus to pursue another judicial review application in connection with the government’s decision to reduce the pay of the civil service.  For reasons that have been canvassed in the preceding section of this judgment, the arguments are entirely speculative and have no objective basis.

82.  Secondly, the applicant also asserts that he had sent by post an interim representation on 7 June 2003 and this had not been taken into account when the Secretary made the decision.  The evidence filed on behalf of the Secretary denies that this interim representation had been sent or ever received by the CSB or the Secretary.  In my view, there is no reason to disbelieve the evidence filed by the Secretary to the effect that this interim representation was not received.  Apart from this, as the applicant has pointed out, 7 June 2003 was a Saturday.  The applicant has no reason to expect with any confidence that any interim representation sent on that day would have reached the Secretary before the expiration of the three days’ extension granted on 3 June 2003.  He could not complained of any procedural unfairness even if this court were to accept that the interim representation did arrive at the CSB but had not been considered by the Secretary, bearing also in mind that he had been given a total of three extensions of time to make representations.  

83.  Thirdly, the applicant also raises by way of submissions that the Secretary had given no reason for his decision.  Section 37(5) of the PFO does not require reasons to be given for the decision.  The common law does to recognize a general duty to give reasons.  The court will imply a duty to give reasons only when it is necessary by way of procedural safeguard to ensure fairness, but the standard of fairness is not immutable.  In the present case, it is obvious from that the Secretary was in agreement with the views of the CSB and had adopted its recommendations on the punishments to be made.  There is also nothing exceptional in the decision made by the Secretary when one considers that the applicant was a senior inspector and the case involves four criminal convictions.  In respect of the conviction that gives rise to the award of dismissal, it is a conviction after trial and upheld on appeal.  There is no merit in the applicant’s assertion that he has been left in the dark as to the reasons for his dismissal.  The circumstances of the case and the mitigations advanced are within the applicant’s personal knowledge.  It mattes not that the applicant asserts that he is innocent and does not accept the factual basis for the conviction as found by the Magistrate.  Additionally, it must be fairly obvious to him that a conviction of indecent assault committed on a junior police officer by a senior inspector is a very grave matter such that an award of dismissal is one that is open to the Secretary to impose.

84.  Fourthly, the applicant refers to the “Procedural Manual on Discipline” (“PMD”), the Guidebook on Discipline (“the Guidebook”) and the Public Service (Administrative) Order (“PS(A)O”) annexed to the PMD as Annex 5.1, and contends that there had been non-compliance with the provisions in them. Specifically, the applicant relies upon paragraphs 4.3 and 4.4 of the Guidebook and contends it is unfair not to include the transcript of the indecent assault case in the papers placed before the Secretary.  Paragraphs 4.3 and 4.4 of the Guidebook state:

“	4.3	Under section 11 of the PS(A)O, if an officer has been convicted of a criminal charge, the CE may, upon a consideration of the proceedings of the court on such charge, inflict such punishment upon the officer as may seem to him to be just.  Accordingly, the department should, upon conclusion of the criminal proceedings, obtain a copy of the facts of the case (from the police or the ICAC) and the court transcript (through the Department of Justice) to examine the gravity of the offence and the circumstances surrounding the criminal conviction.
	4.4	Having examined the case history and relevant court transcript, the department should promptly refer the case to the SCSD, with a recommendation on whether and if so what punishment should be imposed. …	”

85.  This argument is completely misconceived.  The PMD and the PS(A)O have no application to officers who are subject to other disciplinary regulations: paragraph 1 of the PMD and paragraph 5.3 of the PS(A)O.  The applicant as a police officer is subject to the PFO.  Accordingly, the PMD and PS(A)O have no application to him.  Further, the decision to award punishment was made under section 37(5) of the PFO and not under section 11 of the PS(A)O, so that paragraphs 4.3 and 4.4 of the Guidebook are not engaged.  In any case, the applicant admittedly is not a gazetted officer covered by the Guidebook.

86.  In addition, the purpose of the stipulations in the Guidebook on obtaining a transcript is to enable a view be taken of “the gravity of the offence and the circumstances surrounding the criminal conviction”.  Insofar as there are in existence other materials upon which the Secretary can properly exercise his power and make a decision, the failure to obtain a transcript is per se not procedurally unfair. 

87.  The applicant refers to the fact that the transcript of the traffic offences case had been obtained as supporting his argument that it was unfair not to obtain the transcript of the indecent assault case.  The argument, however, ignores the fact that in the traffic offences case, there was no other material upon which a view can be taken of the gravity and the circumstances of the offences.  In the case of indecent assault, there were the Statement of Findings and the Judgment on appeal.  There were ample materials on which the Secretary could form a view of the matter.            

88.  Furthermore, the reasons put up by the applicant for his request for the court transcript are to enable him to make representations to the Chief Executive and to demonstrate what he perceived to be the shortcomings and errors in the Statement of Findings of the trial Magistrate.  This is manifested by the applicant’s second affirmation which introduces the witness statement of the sergeant who was present that evening.  The use that the applicant seeks to put to the court transcript is plainly outside that envisaged by paragraphs 4.3 and 4.4.  More fundamentally, it is not open to the applicant to seek to challenge the findings of the Magistrate that had been upheld on appeal.  The applicant is bound by the findings of the court and any attempt to circumvent the court findings by the use of the transcript is an abuse.  There is also no duty on the part of the Secretary to look beyond the court findings and the judge’s reasons.  No principle of fairness will impose upon a decision maker such an onerous duty.  At any rate, it was open to the applicant, if he wished to labour the point, to include among his representations the witness statement of the sergeant, but for reasons unexplained, he had not seen fit to do so.

89.  The applicant also argues that the Secretary was guilty of non-disclosure of documents and materials.  The fact is that the CSB did not have in its possession the court transcript.  The duty to disclosure cannot be extended to become a positive duty to call for documents that are not in the CSB’s possession and which the CSB did not intend to relay upon and did not consider it necessary to obtain.   In the same vein, the applicant’s argument that the Secretary is under a duty to assist him and had failed in his duty in not providing the applicant with the court transcript is untenable.

(3)   Decision to dismiss irrational

90.  The third major ground advanced by the applicant to challenge the decision of the Secretary is that the decision to award a punishment of dismissal for the indecent assault conviction is irrational.  As stated above, the court in judicial review proceedings only has a supervisory role and judicial review proceedings must not be used as a roundabout way to appeal against disciplinary award.  The harshness or severity of an award is not a ground for judicial review.  To the extent that the applicant draws assistance from other disciplinary cases involving police officers, for reasons set out in the earlier part of this judgment, they do not afford the applicant with a valid ground for judicial review in that disparity in treatment per se is not irrational nor unfair. 

91.  In the present case, the applicant was a senior police officer holding a supervisory role.  The victim involved was a junior officer.  The evidence filed on behalf of the Secretary shows that the applicant’s conduct was regarded as unacceptable and a breach of the trust placed on him by his superiors and subordinates as well as bringing the Police Force into disrepute.  In my view, these are views that the Secretary is entitled to.  In the circumstances, there is no room for challenging the Secretary’s decision to award a dismissal when he concludes, as he is entitled to, that there are serious doubts on the applicant’s integrity and suitability to remain in the Police Force.  This ground therefore fails.

CONCLUSION

92.  For the reasons set out above, the applicant’s application for judicial review is dismissed.  Applying the normal rule of costs follow event, I make an order nisi that the applicant pays the respondent the costs of this application, to be taxed if not agreed.