LEE YIU CHEONG v. COMMISSIONER OF POLICE

cacv 90/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 90 of 2004

(on appeal from HCAL NO. 80 of 2003)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  I agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

2.  This was an appeal by the applicant from the order of Hartmann J dated 19 January 2004 dismissing his application for judicial review of certain decisions made in the course of disciplinary proceedings resulting in his being compulsorily retired from the police force.  The judicial review proceedings had been made in respect of (1) the decision of the Force Discipline Officer (“FDO”) made on 28 August 2001 giving the applicant an “additional award” of compulsory retirement suspended for 12 months, and (2) the decision of the FDO made on 14 February 2003 directing that the suspended award of compulsory retirement with deferred benefit be executed forthwith.  At the conclusion of the hearing, we allowed the appeal and quashed those decisions.  Written reasons were to be handed down later which we now do.

The facts

3.  The applicant joined the police force as a police constable in 1980.  His family lived in Shenzhen and he made frequent visits there.  On 23 March 2001, he pleaded guilty to and was convicted of 20 disciplinary offences under proceedings no. BOR DR 3/2001.  The relevant facts were as follows.  On 15 June 2000, the applicant was scheduled to report for duty at 7:15 in the morning.  He was late returning from the Mainland and did not report for duty until 10.15 a.m.  It then emerged that the applicant had, on five occasions between 21 and 26 March 2000, failed to submit notifications regarding his private visits to the Mainland.  It further emerged that whilst being the subject of a disciplinary investigation, he failed to notify his formation commander of his departure from Hong Kong on 15 occasions between 1 and 31 July 2000.  In summary, the charges were:

Charge A:	absence from duty;
Charges B - F:	contravention of Police Orders in that he visited the Mainland without notification; and
Charges G - U:	contravention of Police Orders in that, whilst under disciplinary investigation, he failed to give notification of his private visits to the Mainland.

4.  On 23 March 2001, the disciplinary tribunal known as the appropriate tribunal made the following awards by way of punishment:

Charge A:	forfeiture of three hours pay and a reprimand
Charges B - F:	a reprimand on each count
Charges G - U:	a caution on each count

5.  Under the police regulations, the punishments awarded were subject to a process of review.  After the original awards had been made and prior to the review, a warning for dismissal was issued valid for one year with effect from 15 August 2000, in relation to other disciplinary offences committed prior to the charges in question.  When the punishments awarded in the present case came to be reviewed by a senior police officer (“the SPO”) on 30 March 2001, the award for Charge A was increased to “Compulsory Retirement, suspended for 12 months”. 

6.  The review process continued.  In due course, it came before the FDO.  A minute dated 7 August 2001 by SIP D R&D (“M5”) making recommendations to the FDO mentioned the applicant’s disciplinary record which showed, inter alia, the following convictions:

“	1998 :	“Contravention of Orders” for failing to submit notifications regarding his private visits to the Mainland on 37 occasions, and “Contravention of Orders” for the loss of one round of ammunition.  Both attracted “Reprimand”….
	2000 :	33 counts of “Contravention of Orders” for failing to submit notifications regarding his private visits to the Mainland on 33 occasions.  Each awarded a “Reprimand”.  Issued with a WD(G) valid for one year w.e.f. 2000-08-15….

The minute noted that seven days after the conviction in 2000, the applicant went on to commit the same misconduct again on five occasions leading to Charges B - F.  The author of that minute made the following observations:

“

11.

Defaulter’s mitigation did not mention why he repeatedly committed the same mistake, nor why he did not apply for waiver.  I cannot find any justification that defaulter’s persistent misconduct should be further tolerated.  His indifferent attitude towards discipline renders him unsuitable to remain in service.  Although the offences are minor in nature and do not warrant severe punishments, the consistently poor standard of discipline justifies an additional award of terminatory nature….  “Compulsory Retirement with Deferred benefits” is an appropriate award.

The recommendation made to the FDO included the giving of an additional award of “Compulsory Retirement with Deferred Benefits” under P(D)R Schedule for “Powers of Punishment”.  The reasons appeared in paragraph 12 of M5:

12.	The termination of defaulter’s service should be sought by way of an additional award, rather than increasing the level of award for individual charges.  Awards for individual charges should therefore remain at non-terminatory level.”

7.  After reading that report, the FDO reduced the punishment for Charge A to one of “Severe Reprimand plus forfeiture of three hours’ pay” and confirmed the other awards.  Importantly for present purposes, the following was recorded in the FDO’s minute dated 17 August 2001:

“

3.

The instant case has yet again reflected the defaulter’s blatant disregard of good order and discipline.  When this is considered together with his poor disciplinary records, it is clear that the defaulter has not taken heed of the previous disciplinary awards and has difficulty in keeping up with the Force’s standard of discipline.  Under the circumstances, I have lost confidence on his suitability to continue to serve in the Force and it is only appropriate to impose an additional terminatory award of “Compulsory Retirement with Deferred Benefits”.  I have however considered all the points raised in his mitigation and have decided to give him one very last chance by suspending the additional terminatory award.”

As the applicant chose not to make representations, on 28 August 2001, the FDO confirmed, inter alia, the additional award of “Compulsory Retirement with Deferred Benefits, suspended for 12 months.”

8.  On 17 October 2001, the applicant was convicted of one count of failure to be prudent in his financial affairs by amassing debts of about $250,000 and five counts of a failure to make a note book entry.  A rehearing was ordered in respect of the financial imprudence count but that never took place because the applicant had been compulsorily retired.  In respect of each of the other counts, the applicant was awarded a caution.  Then on 7 November 2001, the applicant was convicted of one count of absence from duty for which he was awarded a reprimand.  On 14 February 2003, the FDO gave a direction that the suspended award be executed forthwith in view of regulation 28(3) of the Regulations.

9.  The issue before the judge was whether the FDO had power under the Regulations to impose the “additional award”. 

10.  The punishment that may be awarded by a Senior Police Officer and, (in the case of Junior Police Officers only) a Force Discipline Officer is contained in the following part of the Schedule to the Regulations:

“	1.	(a)	Caution;
		(b)	Reprimand;
		(c)	Severe reprimand;
		(d)	Forfeiture of not more than 1 month’s pay except in the case of absence without good cause when forfeiture of pay shall extend to the period of absence in addition to any other punishment awarded; or
		(e)	In the case of a station sergeant or sergeant, reduction in rank.
	2.	Suspend punishment under regulation 28.
	3.	Order for payment under regulation 29.
	4.	In place of, or in addition to, any punishment awarded under paragraph 1 above—
		(a)	dismissal, with, in the case of a station sergeant or sergeant, reduction to the ranks before dismissal;
		(b)	an order to resign forthwith, without salary in lieu of notice; or
		(c)	compulsory retirement with pension, gratuity or other allowances, without such benefits or with reduced benefits.”

This court had occasion to consider the powers of the FDO of in Tsang Hing Shing v Commissioner of Police, CACV 192 of 2003.  That decision is authority for the proposition that an additional award may be imposed by the FDO on top of another award pursuant to paragraph 5 provided it relates to the same charge but he has no power to make an additional award on some undefined, overall or global basis without attaching it to a specific charge. 

11.  Mr Kwok who appeared for the applicant submitted that what the FDO in the present case sought to do was to impose an additional award on a global basis and, accordingly, the additional award was made without lawful authority and must be quashed.  However, the judge considered that paragraph 5 allowed two punishments to be included in a single award, namely, the punishment listed in paragraph 1 and, in addition, a punishment listed in the paragraph 4 of the Schedule.  Thus, a FDO has power to substitute one award which contains one punishment with an award that contains more than one punishment.  Although he was of the view that there was an error of language used by the FDO, he considered that to be a technicality and looking at the substance of the decision made, he reached the conclusion that it did comply with the Regulations.  Mr Westbrook SC urged the court to uphold the judgment. 

12.  The crucial question is whether the additional award was indeed attached to Charge A.  Mr Westbrook drew attention to the fact that Charge A was the only award made by the FDO under paragraph 1 of the Schedule.  Whilst I would agree that that was the only charge in respect of which he had the power to make an additional award under paragraph 5, it does not necessarily follow that the additional award must therefore have been attached to Charge A.  It is for this reason that the FDO’s minute dated 17 August 2001, specifically paragraph 3, merits close attention.  When that is read together with M5 considered in paragraph 6 above, it is evident that the overriding concern triggering the additional award was the applicant’s “blatant disregard of good order and discipline” and his failure to take “heed of the previous disciplinary awards”.  He “repeatedly committed the same mistake” and “did not apply for waiver”.  That was plainly a reference to the many occasions when he failed to submit notifications of his private visits to the Mainland.  For my part, I am unable to discern from the FDO’s minute any hint that the additional award related to the charge of absence from duty which was Charge A.  Fairly read and in the context, that minute is consistent only with the additional award being made on some undefined, overall or global basis rather than being specifically attached to Charge A.  It would follow that the additional award was ultra vires the powers of the FDO.

13.  The applicant raised a supplementary ground of appeal on the basis that the Regulations did not permit the FDO to suspend the additional award.  As a proposition of law, that is plainly correct and Mr Westbrook did not seek to argue otherwise.  Indeed, he conceded as much.  However, he submitted that it would not be right to turn the clock back.  It was said that the supplementary ground was raised 4½ years after the original decision.  Further, the applicant had been compulsorily retired since 21 February 2003 and if the consequence was that all 3 sets of disciplinary proceedings had to be remitted to be considered afresh by the FDO he would first have to be re-instated but his dismissal would be a virtual certainty.  In these circumstances, the court was invited to refuse to quash the orders in the exercise of its discretion.

14.  For my part, I do not find any of the considerations advanced sufficiently compelling to warrant a refusal of judicial review.  Quite what the outcome would be as regards the financial imprudence count is certainly not a foregone conclusion.  It would be quite wrong to proceed on the basis that dismissal would be a virtual certainty.  It may well be that that will be final outcome but this is no reason to short circuit the proper procedures.

Hon Lunn J:

15.  I agree with the judgment of Le Pichon JA.