1994, No.205
(Civil)
IN THE COURT OF APPEAL
(On Appeal from High Court Action No.MP3513 of 1992)
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| | IN THE MATTER OF an application by Au Yeung Kwok Hing, former police Detective Sergeant 13310 for leave to apply for Judicial Review out of time AND IN THE MATTER of the finding made by one C.M. Keenan, the Adjudicating Officer, in a Disciplinary Proceedings commenced on 20th May, 1992 and completed on 28th May, 1992 of which the said Au Yeung Kwok Hing was the Defaulter and the award of punishment made by the said Adjudicating Officer on 28th May, 1992 in respect of the Disciplinary Charge of “Conduct Calculated to Bring the Public Service into Disrepute” AND IN THE MATTER of the decision of Leung Fung-shun, a Senior Police Officer, of 8th June, 1992 confirming the finding and the award of the said Adjudicating Officer AND IN THE MATTER of the decision of the Commissioner of Police of 29th June, 1992 confirming the finding of the said Senior Police Officer but varying by substituting the award of punishment of reprimand with compulsory retirement with benefit AND IN THE MATTER of the dismissal of the appeal of Au Yeung Kwok Hing, the said Defaulter, of 1st August 1992 from the aforesaid finding and awards and their subsequent confirmation and variation and for an Order of Certiorari |
BETWEEN
| | AU YEUNG KWOK HING | Appellant |
| | AND | |
| | THE ATTORNEY GENERAL FOR AND ON BEHALF OF THE COMMISSIONER OF POLICE | Respondent |
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Coram: Hon Nazareth VP, Bokhary & Liu JJA
Date of Hearing: 20 January 1995
Date of Delivery of Judgment: 7 February 1995
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JUDGMENT
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Liu JA:
1. The appellant was a Detective Sergeant in the Royal Hong Kong Police. In 1990, his childhood friend of over 20 years, one Chau Hung-kwan, was arrested in New York and charged with drug-trafficking. On conviction, Chau was liable to be sentenced to a long term of imprisonment. The appellant visited America with the view to seeing his friend for possibly the last time as well as calling on his parents-in-law in Los Angeles. During his stay in America, the appellant agreed to be a character witness in Chau’s trial before the United States District Court, Southern District of New York. On 7 August 1990, the appellant gave evidence as a character witness at Chau’s trial. Staff data for impugning his credibility had been supplied to the American prosecutor by the Royal Hong Kong Police who collaborated with the American Drug Enforcement Administration in bringing to justice those, including Chau, featured in a case of drug-trafficking. At the inception of his cross-examination, the appellant was made aware of the requirements in Regulation 3(2)(m) of the Police (Discipline) Regulations, and on being pressed as to his failure to comply with those requirements, the appellant stated: “Even if I have to violate the regulation, I would have to testify on (Chau’s) behalf.”.
2. Subsequent to the appellant’s return to Hong Kong, in March 1991 he was cleared, after an investigation, by the Independent Commission Against Corruption of possible corrupt practices. In April 1991, he was notified of a disciplinary review initiated by the Internal Investigations Office, but he was not brought before the Appropriate Tribunal on 17 charges until May 1992. Apart from the first two charges, the remaining 15 charges were in respect to the appellant’s failure to give notification of his 15 visits to China from April 1989 to January 1990 in contravention of the then direction of the Commissioner of Police, which has since been revoked. He pleaded guilty to all the charges except the second charge, Charge (B) to which he pleaded not guilty.
3. The first charge, Charge (A), is founded on the appellant’s failure to obtain prior permission for giving character evidence for Chau in the New York United States District Court. The second charge, Charge (B) reads:-
“Conduct calculated to bring the public service into disrepute.
Contrary to Regulation 3(2)(m) of the Police (Discipline) Regulations, Cap. 232.”
4. The particulars of Charge (B) are set out below:-
“D/Sgt13310, AU YEUNG Kwok-Hing, of the Royal Hong Kong Police Force, you are charged that on 7.8.1990 at the United States District Court, Southern District of New York, you did say in evidence that you would violate the Police General Orders in order to testify on behalf of Mr. CHAU Hung-Kwan, such act being conduct calculated to bring the public service into disrepute.”
5. A caution was awarded against the appellant for each of the remaining 15 charges and a reprimand for the first charge, Charge (A). The penalty imposed on the appellant in Charge (B) was also an award of reprimand. These awards were made by the Adjudicating Officer in May 1992. In early June 1992, the findings and awards were confirmed by a Senior Police Officer. On 20 June 1992, the appellant was informed by the Force Discipline Officer of his intention to increase the awards as follows:-
“Charge (A) from reprimand to severe reprimand, charge (B) from reprimand to compulsory retirement with benefits and the remaining 15 charges from caution to reprimand.”
6. The appellant submitted representations, and on 29 June 1992, he was served with a memorandum by the Force Discipline Officer on behalf of the Commissioner of Police, notifying him that the proposed increases had been made against him with effect from 24 June 1992. The appellant appealed to the Commissioner, and his appeal was dismissed.
7. The appellant challenged the increased award in the second charge, Charge (B), by way of judicial review before Mayo J. At the conclusion of the proceedings on 6 October 1994, the judge denied his application.
8. Mayo J found that “when the (appellant) gave evidence in examination in chief, he gave evidence as a police officer in Hong Kong with CID experience and did not say anything in his evidence to make it apparent to the jury that his evidence was being given in the solely personal capacity”. Mr Cooney, counsel for the respondent sought to persuade us that the judge was correct in this finding. For the reasons I am about to give, I do not accept counsel’s submission. But whether or not the appellant gave evidence in his private capacity, he was then a serving officer, and the statement he made to the American jury was one emanating from a Hong Kong police officer serving in the Force.
9. In examination-in-chief or direct examination, the appellant was led to say this:-
“ Q. Sergeant Au Yeung, you do speak some English, do you not?
A. I speak very little English.
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.
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Q. I address you as sergeant. Would you tell the ladies and gentlemen of the jury what your occupation is?
A. I am a detective sergeant in Hong Kong and I am responsible for investigating criminal matters.
Q. And does that include drug matters?
A. It includes that and all kind of criminal cases.”
10. Thereafter, the appellant was addressed from time to time as Sergeant Au-Yeung.
11. The appellant was subjected to what may be described as an effective hostile cross-examination.
“ Q. Sergeant Au Yeung, when did you come to the United States in your most recent trip?
A. The end of February, 1987.
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Q. And let me ask you: In Hong Kong you are a sergeant for the Royal Hong Kong Police I believe you said. How long have you been with the police force there?
A. 17 years.
Q. And that is continuous service?
A. Yes.
Q. And in fact, that is not quite right, is it, Sergeant Au Yeung?
A. That is right.
Q. In fact, you were suspended, were you not, from service from July 23, 1985, to October 24, 1985?
(Objection overruled and same question repeated in different from)
A. During this period, I was suspended.
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Q. That is correct, isn’t it, that you were charged with assault?
A. At the time, I was charged because in my work I injured the person I had arrested.
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Q. Now, as a sergeant in the Royal Hong Kong Police, it is important to follow the police general order, is it not?
A. Yes.
Q. And in fact you could be disciplined if you don’t follow those orders?
A. Yes.
Q. And you can be suspended if you don’t follow those orders?
(Objection ‘to this continuing line of questioning’ overruled)
Q. Are you familiar with the rule of the police -- general order of the Hong Kong police which requires an officer when testifying for character evidence of an accused to obtain permission from the deputy director of police in Hong Kong?
(Objection overruled)
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A. That is correct. Just because of the time I didn’t think of testifying as a character witness. That is why I did not get the permission.
Q. So you didn’t get that permission?
A. Yes, I did not.
Q. And you haven’t sought that permission since you have been in the United States? You didn’t call anyone in the Royal Hong Kong Police to tell them that you would be testifying, did you?
A. Correct.
Q. And you didn’t fax them anything?
A. That is correct. (Answer was given before objection.)
Q. And you didn’t write them a letter?
A. Correct.
(Objection overruled)
Q. Now, when you testify in a private capacity, that is, not for the Royal Hong Kong Police Force, one of the rules that you are required to do is to give a preamble, is it not? A preamble? A statement before you testify?
A. Could you repeat that?
Q. Are you not required to say before or at the time when you take the stand and before you give your testimony when you are testifying as a character witness, that ‘I wish to make it clear that I am appearing before this court in a capacity as a private citizen, not a police officer; and whatever I say in no way represents the view of the government of Hong Kong’?
(Objection overruled)
Q. Are you familiar with that rule?
A. You mean where do I have to say such words?
Q. I am sorry?
A. Do you mean I have to say such words?
Q. Isn’t that one of the rules and conduct of the crown that you have to say these words before you testify?
A. If I testify in private and not from the Police Department, I don’t need to write down any record.
Q. Aren’t you required to tell the jury and make it clear that you are testifying as a private citizen and not as a police officer of the Royal Hong Kong Police force?
(Objection overruled)
A. Yes, I am testifying here in private this time.
Q. You are making it clear right now, are you not?
A. Correct.
Q. But isn’t it the case that under Chapter 6 of your rules and conduct you are required to do that right off the bat before you say anything in court?
A. I am not familiar with the regulation.
Q. You are not familiar with the rules about your conduct as a private citizen by the Royal Hong Kong Police force, is that your testimony?
A. Correct.
Q. But it is important you follow those rules nonetheless, is it not?
A. Since I know my friend and after I understood his case, even if I have to violate the regulation, I would have to testify on his behalf.
Q. You would testify for your friend even if that would mean violating the rules of conduct of the Royal Hong Kong Police Force?
A. Yes, because I belief my friend would not have committed this offence. I trust my friend and I am also in the US so I would act as a witness on my friend’s behalf. I am also acting in private as a private person and not on behalf of the Hong Kong Police.
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Q. You are just here as a loyal friend of Christopher Chau aren’t you?
A. Yes.”
12. In June 1991, at an interview by the Royal Hong Kong Police for the disciplinary review of the Internal Investigations Office, Question 7 was the only question out of 23 asked of the appellant regarding his offending statement under complaint. Question 7 and answer are set out below:-
“ Q7. According to the trial record, when you gave evidence in Court, you did say that although you knew it was in breach of the PGO to bear witness for Chau Hung-kwan, you would do so because you did not believe that Chau Hung-kwan had committed the offence of drugs trafficking. Do you have any explanation?
A8. Since I called to my mind that I have to make application to DDP only when I was giving evidence in Court, I continued to bear witness though I knew it was contrary to the PGO. Besides, I did not believe that Chau Hung-kwan had engaged in drugs trafficking. Thereby, I went on to give evidence.”
13. It is reasonably clear that even in his examination in chief, the appellant did not hold himself out as giving evidence in his official capacity of a Hong Kong police officer. He was simply, as led by defence counsel, stating his occupation. He was a character evidence witness who served in the Royal Hong Kong Police with CID and other experience. In its entirety, the evidence of the appellant left it in no doubt that he was coming forward to testify in his personal capacity. Even if the judge had wholly focused on the appellant’s examination-in-chief, his view could not have been supported by the evidence. It was also wrong to say that penalty was not a matter which properly (fell) within the four corners of a (sic) Judicial Review”. Penalty is reviewable under the Wednesbury unreasonableness. Meng Ching-hai v. AG, [1991] 1 HKLR 535 at p.543 Letter G, per Fuad V-P.
14. The applicant felt aggrieved by the judge’s dismissal of his application and, in this appeal, specifically takes issue with the above findings of the judge. These erroneous findings had, so counsel complains, led the judge to his conclusion that the conduct of the appellant “could have an adverse effect on the Royal Hong Kong Police Force as a whole” and that his said conduct amounted to conduct calculated to bring the Royal Hong Kong Police into disrepute. However, as I have said earlier, granted that the appellant was testifying in his private capacity, the statement he made was nevertheless attributable to a serving officer of the Force. No point was taken on the alleged procedural improprieties. The short questions are, therefore, whether that statement repeated again, made by a serving police officer albeit in his private capacity as a character witness, could bring the Force into disrepute and if so, whether the punishment is absurd.
15. Clearly, the statement made and repeated by the appellant as a serving officer could be taken as being calculated to bring the Force into disrepute. The uniform view formed by the police throughout the stages of the disciplinary exercise was one open to them to form and cannot be susceptible to review.
16. Stripped of all erudite arguments, the remaining question is whether the revised award for Charge (B) is irrational, that is to say, whether the revised award “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”. Council of Civil Service Union v. Minister for the Civil Service [1985] 183, 374 p.410G per Lord Diplock. Put another way, whether the revised penalty is one which a reasonable tribunal, properly directing itself in law and on facts, could have awarded.
17. The Adjudicating Officer, the Senior Police Officer and the Force Discipline Officer for the Commissioner all held that the conduct of the appellant in the second charge, Charge (B) was conduct calculated to bring the public service into disrepute. In a disciplinary force, such as the police, there was all the more reason for the making of the appellant’s statement as complained of in Charge (B), to be taken as very serious misconduct albeit committed under the pressure of cross-examination.
18. The appellant said: “Since I know my friend and after I understood his case, even if I have to violate the regulation, I would have to testify on his behalf.”. That statement must be viewed in the proper context of the line of cross-examination undertaken, which was directed to impugn his credibility by confrontation. It was not an informed answer given by a calm and composed man.
19. From his court evidence set out earlier in this judgment, I hope to illustrate that the appellant had been provoked into making a terse response. Regulations are not, of course, made to be broken, but if the appellant’s notion of the regulation had been one of a trivial nature, his penalty for words uttered in very confrontational cross-examination ought to be considered in that frame of mind. Moreover, it is not challenged that he was unaware of the existence of such a regulation. His response had also to be instantaneous.
20. After he had returned to Hong Kong, he took no immediate steps to make a post-application. That is further evidence that the appellant could not have himself taken a serious view of the regulation or its breach. The particular circumstances in which the statement was made and the events that followed should be taken into account. The statement in the answer he gave during robust questioning and in the unawareness of its seriousness, though having the effect of exposing his Force to public odium, should not be judged out of context.
21. The incident must not be looked at as if the appellant had been making a statement of the same kind at a recruitment interview. Naturally, the Force is jealous of its honour and tradition and would only take in the best of recruits. The appellant’s statement made in legal proceedings was one made in rapid response to a pressing cross-examination designed to attack his veracity. He was not taking a firm stance. It was not a considered view. When he came to realise the seriousness with which the Force viewed the statement he had made, he showed remorse.
22. He explained that he only came to know in cross-examination that he had to apply for permission. He said that: “since (he) was already in the witness box, (he) was at a loss as how to respond.”. He attributed his indiscretion to “a slip of the tongue”, “prompted by persistent questioning and attack from the prosecutor that (he) had not applied for permission to act as a witness”. He elaborated that: “it had never occurred to (him) that those words would bring the public service into disrepute”, that “they were (sic) not taught (explained) to me by anybody beforehand”, and that “(he) did not realise that the consequence could be that serious”. “Those words”, he said, “were made without thorough thoughts”. He described himself as “a police officer who is heedless of (his) own safety, with a strong sense of loyalty”. He regretted to have “made a wrong expression in court”. “The present event (was) just a mindless fault.” In his appeal to the Commissioner, he summed it up: “Although somewhat belatedly, I realise that I should not have testified on behalf of my friend without permission and that my sense of loyalty was perhaps misguided.”.
23. At the time when he made the offending statement he was aged 36/37. By the time he was compulsorily retired, he was 38/39, and had had 19 years of good service behind him. The Adjudicating Officer confirmed from his overall record that the appellant was a hard-working and dedicated police officer. No dedicated police officer would deliberately make an irresponsible statement, in the absence of provocation, to lower the esteem of his own Force.
24. The amount of pensions he would receive, so stated the appellant, would be meagre and he asked rhetorically: “How am I going to support [my 70 years old mother and my young family of a wife and two children (then) aged three and ten]?”. The appellant made a strong plea to the Commissioner to allow him to stay.
25. For making an unguarded statement in those trying circumstances, without any clear understanding about a regulation of what he then thought to be of a petty or innocuous nature, the decision to inflict upon the appellant a penalty which puts an end to his career and would practically deprive him of his livelihood must be ludicrous. Differently analysed, the decision-making process must, by necessary inference, have been wrong and amenable to judicial review. What falls to be decided is not whether the increased penalty was within the range of punishment assigned by law to a breach of Regulation 3(2)(m) but whether the result, judged by reference to the circumstances in which the offending statement was made, is absurd. The appellant has spent the best part of his working life as a policeman, and at his present age of 41, the hardship he will endure in the outside world must be unimaginable.
26. The Force is rightly proud of its reputation and image, but for an impromptu statement made in the peculiar circumstances of this case, it would be flying in the face of all logic to visit the appellant with a penalty of a forced retirement. I have come to the conclusion that no reasonable police disciplinary tribunal, properly directed on the facts, could have awarded a compulsory retirement with benefits against the appellant. It is a revised award which no sensible tribunal, having properly applied its mind to the question to be decided, could have arrived at.
27. I would order that the said increased award for Charge (B) made by the Force Discipline Officer and affirmed on appeal be removed forthwith into this Court and be quashed and that the original award for Charge (B) be sent back to the Force Discipline Officer for his reconsideration in accordance with this decision. I would allow the appeal and set aside the judgment both to that extent.
| | (B Liu)
Justice of Appeal |
Bokhary JA:
28. I see no basis for overturning the Commissioner of Police’s view that the appellant had brought the police into disrepute.
29. As to the penalty imposed, it is undoubtedly a severe one. Even though he is allowed to retain his benefits, being compulsorily retired from the police force must be a very heavy blow to any police officer.
30. 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.
31. A disciplinary offence has been committed. The person responsible for discipline has imposed punishment. He has 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 seriousness of the offence and the situation of the offender.
32. Turning to the appellant’s conduct, it comes essentially to this. He, a serving Hong Kong police officer of considerable experience, gave character evidence for the defence in a court overseas. He was seen to be in breach of his force’s regulations governing that very exercise. Further, he was seen to be unaware of those regulations. Finally and by far the most seriously, he indicated that he would have done what he did even if he had known that it meant violating those regulations.
33. For one of its members to conduct himself in that way, undoubtedly put the Royal Hong Kong Police Force in a very poor light. And that is so even though the appellant was under the pressure of cross-examination. The cross-examination itself was not a particularly taxing one. But for the appellant, the experience must have been a very uncomfortable, embarrassing and even annoying one.
34. Looking at it like that up to that point, let us turn to what the appellant did when he, knowing what the Commissioner might do, put in his written explanation for his conduct.
35. One of the things said in that explanation is this:-
“When I appeared in Court in the States as a character witness of CHOW, I was cross-examined by the prosecutor regarding my occupation. The prosecutor asked if I had applied to the Police Force for permission to act as a witness. It was only then that it came to mind I had to apply before I could act as a witness. However, since I was already in the witness box, I was at a loss as to how to respond. Eager to help a friend and by a slip of tongue, I answered, ‘Even if it is a breach of discipline, I will still act as this character witness.’. The above words were prompted by persistent questioning and attack from the prosecutor that I had not applied for permission to act as witness. They were merely a slip of tongue. It had never occurred to me that those words would bring the public service into disrepute. They were not taught to me by anybody beforehand. I said so simply because of attack and cross-examination by the prosecutor. I did not realize that the consequence could be that serious. Those words were made without thorough thoughts. Nonetheless, I had made it clear in court that I was acting as witness in my personal capacity and was not representing the Force.”
36. But the difficulty is that the Commissioner was entitled to view the whole explanation as being of limited weight. That is so for these reasons. First of all, the appellant said in his explanation that it was at the accused lawyer’s suggestion that he acted as a character witness. That unfortunately is at variance with the evidence which he gave in the overseas’ court. There he said that he approached the accused with an offer to give character evidence for him, and that the accused then conveyed that offer to his lawyer who advised accepting it.
37. Nor does it end there, because the appellant also said in his explanation that it was only when he was cross-examined about his occupation that he was forced to reveal it. In truth, however, his examination-in-chief began with these questions and answers:-
“ Q. Sergeant Au Yeung, you do speak some English, do you not?
A. I speak very little English.
Q. And you prefer to testify in your native language?
A. Yes, I would like to speak in my native language.
Q. I addressed you as sergeant. Would you tell the ladies and gentlemen of the jury what your occupation is?
A. I am a detective sergeant in Hong Kong and I am responsible for investigating criminal matters.
Q. And does that include drug matters?
A. It includes that and all kinds of criminal cases.
Q. Have you won special awards in that regard?
A. Yes, I have. In 1981 I broke a case involving pounds of narcotics and the police chief awarded me a prize.”
38. Of course, those inaccuracies are not to be taken into account as elements of aggravation. What they do mean, however, is that there really was no convincing mitigation, and the Commissioner of Police had to look at what the appellant did without the benefit of any cogent mitigation for it.
39. In my view, the penalty imposed by the Commissioner cannot be condemned as severe beyond any rational relationship to the appellant’s offence and his situation.
40. I would dismiss this appeal.
| | (K Bokhary)
Justice of Appeal |
Nazareth VP:
41. Mr Sarony for the appellant pursued three grounds of appeal. The first relates to the following passage at p.8 of the judgment:
“When the applicant gave evidence in examination in chief he gave evidence as a Police Officer in Hong Kong with C.I.D. experience and did not say anything in his evidence to make it apparent to the Jury that his evidence was being given in a solely personal capacity. Having regard to the involvement of the Royal Hong Kong Police Force in the prosecution of Mr CHAU, it is not difficult to envisage how the Applicant’s conduct could have an adverse impact on the reputation of the Force as a whole.”
42. The burden of Mr Sarony’s submission was that the judge was wrong and misdirected himself in saying that the appellant gave evidence as a Police officer in Hong Kong with C.I.D. experience. I reject that submission. While it is true that the appellant did not claim to be giving evidence in his official capacity, with official approval, he did say he was a Police Officer in Hong Kong and that he had C.I.D. or criminal investigation experience. In my judgment, properly and fairly read, the judge in the foregoing passage was saying no more than that. In my judgment there is nothing in the point. To be fair, although Mr Sarony did not abandon it, equally he did not press it very far.
43. The second ground Mr Sarony pursued was that the finding that the applicant’s conduct could have an adverse effect on the Royal Hong Kong Police Force as a whole is objectively insupportable. I do not find it necessary to recount the detailed submissions. Suffice it to say that where an accused person is successfully prosecuted upon a serious drug trafficking offence in pursuance of the joint efforts of American and Hong Kong Police Forces, it seems plain to me that the latter must be brought into disrepute when one of its officers appears as a character witness for the accused. Even if I am wrong in that view, the Commissioner could hardly have been irrational in coming the same view.
44. I turn then to the third ground, i.e. that the award of compulsory retirement is irrational as wholly disproportionate to a petty offence. It was submitted by Mr Sarony that the award of compulsory retirement, involving the loss of livelihood as it did, is so wholly disproportionate to the petty nature of Charge B as to be irrational. He made it plain that he did not rely upon proportionality in the sense discouraged in Reg v Home Secretary, Ex p. Brind (H.L.(E)) [1991] 1 AC 696.
45. Charge (B), upon which the award of compulsory retirement was made, is as follows:-
“Charge (B) Conduct calculated to bring the public service into disrepute.
Contrary to Regulation 3(2)(m) of the Police (Discipline) Regulations, Cap.232.
Particulars: D/Sgt13310, AU YEUNG Kwok-Hing, of the Royal Hong Kong Police Force, you are charged that on 7.8.1990 at the United States District Court, Southern District of New York, you did say in evidence that you would violate the Police General Orders in order to testify on behalf of Mr. CHAU Hung-Kwan, such act being conduct calculated to bring the public service into disrepute.”
46. The statements the appellant made are best seen from the transcript of his evidence in the New York trial of his friend, Mr Chau. He was referred by the prosecutor to the Police Force General Orders regulating the giving of character evidence by police officers in a private capacity, and asked whether it was not important that he follow those rules. The record then reads:-
“ A. Since I know my friend after I understood his case, even if I have to violate the regulation, I would have to testify on his behalf.
Q. You would testify for your friend even that would mean violating the rules of conduct of the Royal Hong Kong Police force?
A. Yes, because I believe my friend would not have committed this offense. I trust my friend and I am also in the U.S. so I would act as awitness on my fried’s behalf. I am also acting in private as a private person and not on behalf of the Hong Kong police.”
47. Of themselves, those words might seem not to amount to anything of particular seriousness. That is not to say that I adopt the unnecessary characterisation by Mr Sarony of the charge and disciplinary proceedings as petty. It seems to me plain that a police force may find it necessary to regulate the giving of such evidence and in particular circumstances to take disciplinary action for breach of such regulations. However, to return to the prima facie non-serious nature of the charge, it was in pursuance of that line of submission contended on his behalf that in the witness box he was pressured and pushed into making unfortunate statements that he would give character evidence even if that violated regulations. That submission was founded primarily upon his “Explanation for Discipline” dated 23 June 1992 which ran to some 12 pages of typescript. It was given in response to a formal memorandum from the Force Discipline Officer recording the position that he had been found guilty of the charges in question, that the findings and the awards had been reviewed and confirmed and that thereafter the Force Discipline Officer was considering increasing the awards to severe reprimand on Charge (A) and compulsory retirement with benefits on Charge (B). He was requested to acknowledge receipt of the memorandum and submit any representation he wished to make. The passages in the Explanation upon which he principally relies are as follows:-
“5. When I got to see CHOW in New York, he was about to be summoned to trial. His lawyer made a summary suggestion that I should act as CHOW’s character witness. I had not considered other issues. Nor had it crossed my mind that I should apply to the Commissioner of Police for such an act. I willingly agreed to comply with the lawyer’s suggestion, thinking that as an old friend of CHOW, I could help him get away with a lighter penalty by so doing.”
6. … I was cross-examined by the prosecutor regarding my occupation. The prosecutor asked if I had applied to the Police Force for permission to act as a witness. It was only then that it came to mind I had to apply before I could act as a witness. However, since I was already in the witness box, I was at a loss as to how to respond. Eager to help a friend and by a slop of tongue, I answered, ‘Even if it is a breach of discipline, I will still act as this character witness.’ The above words were prompted by persistent questioning and attack from the prosecutor that I had not applied for permission to act as witness. They were merely a slip of tongue. It had never occurred to me that those words would bring the public service into disrepute. They were not taught to me by anybody beforehand. I said so simply because of attack and cross-examination by the prosecutor. I did not realise that the consequence could be that serious. Those words were made without thorough thoughts. Nonetheless, I had made it clear in court that I was acting as witness in my personal capacity and was not representing the Force.
18. (P.11) … My acting as a character witness for an old friend of over 20 years was not prompted by my own interests. It was purely a mindless act. I am a police officer who is heedless of my own safety, with a strong sense of loyalty. It just missed my mind that I should apply to the Commissioner of Police for permission to act as witness.. I had also made a wrong expression in court ….
(P.12) … The present event is just a mindless fault. I really hope to continue with my service in the Force.”
48. Clearly the appellant was trying to explain away his statements and in that sense moving towards disavowal. But equally clearly he did not reach that position. He added that he had only one day within which to prepare his Explanation. But had he wished to repudiate any intention or willingness to violate the Regulations, nothing would have been easier than to say so. And certainly he had ample opportunity to do so, not just in his very long and well-reasoned Explanation of the 23rd June 1992, but in all the time that elapsed from June 1991 when he gave his first statement to WCIP Mok in the context of investigations into disciplinary charges. Moreover, having been found guilty of disciplinary Charge (B) at the end of the disciplinary hearing in May 1992, he was asked by the tribunal if there was anything he wished to say before sentence. What he said ran to some two pages of typescript and there also, he did not disavow the sentiment in the statements.
49. In my view, the Commissioner was in these circumstances entitled to take a serious view of the matter. Upon that basis, it is difficult to see how the award can be said to have been irrational. However, the matter does not end there.
50. 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.
51. It is true that the award is severe. That does not make it irrational. It was possible for the Commissioner to have imposed an even more severe award, i.e. dismissal or compulsory retirement with reduced benefits. That the enquiring and confirming officers took a much more lenient view of Charge (B), in the sense of the much less severe awards they made, likewise does not in my view make the ultimate award irrational.
52. For the reasons I have endeavoured to give, and those given by Bokhary JA, I conclude that the award made by the Commissioner is not irrational. I also would dismiss the appeal.
| | (G P Nazareth)
Vice President |
Mr N. Sarony Q.C. & Mr Tommy Chung (Ng & Co.) for the applicant
Mr N. Cooney (A.G.’s Chambers) for the respondent