CHUNG WING YIM v. COMMISSIONER OF POLICE

HCAL96/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 96 OF 2003

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BETWEEN

	CHUNG WING YIM	Applicant
	and
	COMMISSIONER OF POLICE	Respondent

______________________

Before : Chu J in Court

Date of Hearing : 31 May 2004

Date of Judgment : 23 December 2004

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J U D G M E N T

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1. This is the applicant’s application for judicial review against the following decisions:

(1)    The decision of the Senior Police Officer (“SPO”) made on 11 October 2002 to impose 5 awards of dismissal suspended for 1 year and an award of reduction in rank (“the SPO’s decision”)

(2)    The decision of the Force Discipline Officer (“FDO”) made on 6 November 2002 to increase each of the six awards to compulsory retirement with deferred benefits (“the FDO’s decision”);

(3)    The decision of the Deputy Commissioner of Police (Management) (“DPC”) made on 19 December 2002 dismissing the applicant’s appeal against the FDO’s decision (“the DCP’s decision”).

Factual background

2. The applicantjoined the Police Force as a police constablein 1985.  He was promoted to sergeant in 1997. 

3. In the course ofa police investigation into a moneylender in 2001, the applicant was found to be one of its borrowers.  Consequently, the applicant was interviewed and a statement was taken, in which he stated he had incurred loans totaling $100,000.  Thereafter the applicant was interviewed again ona monthly basis on27 September, 26 October, 25 November and 30 December 2001.  On each of these occasions, he stated verballythathis financial situation had remained unchanged.   All these written and verbal statements were later found to be untrue.

4. On 2 January 2002,three days after the last interview,the applicant filed a petition for bankruptcy and the debtsinvolved amounted to $11,074,526.  As a result, the applicant was not permitted to continue drawing firearms effective from 7 January 2002. He was posted to the report room instead of the PSU.  He was also not permitted to have access to the safe and to handle cash and valuable properties.  The applicant was adjudged bankrupt on 2 May 2002.

5. On 2 September 2002, the applicant was charged with six disciplinary charges.  Charges A to E were for making a statement false in a material particular, contrary to Regulation 3(2)(j) of the Police (Discipline) Regulations (“the Regulations”).  Theyconcernthe written and verbal statements that he had given in relation to his financial position.  Charge F was for contravention of Police Order (i.e. PGO 6-01(8)), contrary to Regulation 3(2)(e) of the Regulations.  This refers to his failure to be prudent in his financial affairs by incurring unmanageable debts,which constitutes serious pecuniary embarrassment resulting in impairment of his operational efficiency.

6. The applicant pleaded guilty to all six charges.  On 3 October 2002, the applicant was found guilty as charged by the Appropriate Tribunal.  The Appropriate Tribunal considered his power of award insufficient and referred the matter to the SPO to make awards under Regulation 11(6) of the Regulations.

7. On 11 October 2002, the applicant appeared before the SPO.  The SPO confirmed the findings of guilt on the six charges and made awards of punishment.  For each of charges A to E, he made an award of dismissal suspended for one year.

8. Thecasewas reported to the FDO forconfirmation of findings of guilt and awardspursuant to Regulation 14(4) of the Regulations.  The FDO confirmed the findings of guilt and directed that the applicant be asked to show cause why each of the six awards should not be increased to compulsory retirement with deferred benefits.

9. On 1 November 2002, the applicant made a written representation.  On 6 November 2002, the FDO decided to increase the six awards and substituted them by compulsory retirement with deferred benefits.  The FDO’s decision was communicated to the applicant on 7 November 2002.

10. On 20 November 2002, the applicant appealed against the FDO’s decision to the Commissioner of Police.  By a memorandum dated 19 December 2002, the applicant was informed thattheDCP, acting under delegated powers, had dismissed his appeal.  The awards took effect on 24 December 2002.

The application for judicial review

11. On16September 2003, the applicant commenced judicial review proceedings. Leave was granted on 17September 2003.  On 24September 2003, the Notice of Motion was filed.   The application was brought outside the three months period and the applicant asked for extension of time to make the judicial review application, principally on the basis that he had been waiting for the outcome of his legal aid application.  The respondent took no issue on the delay.

12. Initially, the applicantonlysoughtordersofcertiorarito quash thedecisionsof the SPO and FDO.  At the hearing of the judicial review, in response to criticisms made byMiss Chung who appears forthe respondent,Mr Lau applied on behalf ofthe applicant and was granted leave to amend the Form 86A and the Notice of Motion to add a further relief foran order ofcertioraritoquash the DCP’s decision.  In consequence of this, the respondent was given leave to file and introduce a second affirmation of Eugene Yue to deal with the additional relief.

The applicant’s mitigating materials

13. In the course of the disciplinary proceedings, the applicant had put before the Appropriate Tribunal a statement of mitigation written by himself, another one from his wife and nine other letters of mitigation fromthe applicant’s colleaguesin the Police Force.

14. In his statement of mitigation, the applicant referred to his past good performance report andthecomplimentshe had received, his clear disciplinary record and his early plea of guilty.  The applicant also gave explanations on his debts.

15. The nine letters of mitigation were written by senior police officers thathad acted as the senior or supervising officers ofthe applicant.  Among these officers was Inspector Leung to whom the applicant had made the verbal statements about his financial position that form the subject matter of chargesBto E.  The letters of mitigation contained favourable comments on the dedication, competence, ability and work attitude of the applicant both generally andin relation tospecific assignments and duties. The writers all pleaded for lenient punishments on behalf of the applicant.

The grounds for application

16. The principal groundstaken by the applicant for the challenge against the threedecisionsareirrationality and failure to take into account relevant factors.

17. In respect of theSPO’sDecision,the complaint is that the SPO had further given insufficient or no weight tothenine letters of mitigation.  It is said that the SPO’s treatment of the nine letters of mitigation is irrational and that the SPO had failed to take relevant consideration into account when deliberating on the level of awards to be given.

18. As for the FDO’s decision, the complaint is that despite the applicant’s specific request, the FDO did not consider any of the mitigating factors and hadinsteadplaced undue weight on the aggravating circumstances of the case.  The applicant contends that the FDO by failing to have regard to relevant considerations had invalidly exercised his power in increasing the awards.

19. In the case of the DCP’s decision, it is said that his decision is irrational in that he had not given sufficient weight to the applicant’s mitigating materials.

The approach of the court

20. At the outset, it is important to note that although the applicantdoes notput thejudicial reviewapplicationon the ground oftheseverity of the punishments, hiscomplaintsisin substancean attackon the level of awards imposed on the six charges.  As the authorities had stressed, it is for the disciplinary authorities to decide on the appropriate punishments for disciplinary offences and to decide what weight, if any, to be given to the mitigations put forward: Wong Wai Tak v. Secretary for the Civil Service (unreported) CACV 611/2001,andAu Yeung Kwok Hing v. The Attorney General(unreported) Civil Appeal No. 205/1994.   The line between a challenge on irrationality and failure to have regard to relevant considerations andthat onthe severity of the punishment is a fine one.  Care must be taken not to allow judicial review applications be used as avenues of appeal against the awards imposed.  In this regard, it is pertinent to note the observations of Bokhary JA (as he then was) in Au Yeung Kwok Hing v. The Attorney Generalbelow when approaching an application like the present:

“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 situation of the offender”.

The SPO’s decision

21. The applicant’s case on the SPO’s decision is firstly that when he appeared before the SPO, he had been told through an interpreter that the SPO would not consider any of the nine letters of mitigation.  The SPO in his affirmation deniedhaving said this and statedthat he had considered the letters.   In my view, given that the proceedings before the SPO were conducted in English and translated in Chinese to the applicant by a police interpreter, the applicant cannot take this point further when the SPO had gone on oath to state the position.

22. Secondly, the applicant takes objection to the part of the SPO’s deliberations as follows:

“I have read the mitigation submitted by the defaulter and those on his behalf, but whilst noting the favourable comments, note that most of the contributors were duped by the defaulter at the time and were unaware that he was reprehensibly covering up his indebtedness and deceiving them.”

23. The applicant complains that the SPO’s skepticism is unfounded, not being supported by any evidence as to whether the writers of the nine letters were or were not aware of the applicant’s financial situation when the applicant served with them.  It is pointed out that none of the writershadexpressed surprise at the applicant being disciplined as a result of financial problems.

24. The Brief Facts for the disciplinary proceedings,which was admitted by the applicant,shows that the applicant had since early 2000 borrowed from moneylenders to meet his financial difficulties.  It was only in June 2001 that the Police force was firstalertedto the applicant’s borrowings.  The full picture of his financial situation wasnotrevealeduntil early2002.  The inference must be that his senior and supervising officerswere not aware ofthe applicant’s indebtednessfor atleast the period between 2000 and 2001.  Among the nine writers of the letters of mitigation, five were the applicant’s senior or supervising officers during 2000 and January 2002.  Thus analyzed, the SPO’s comments that most of the contributors were unaware of the applicant’s indebtedness cannot be said to be unfounded. Further in the case of Inspector Leung, he was obviously misled or, as the SPO put it, “duped” by the applicant.

25. The applicant criticizesthe SPO for placing no or insufficient weight to the letters of mitigation.  It is however plain from the reasoning of the SPO that he started with the nature of the charges, pointing to the fact that they reflect on the applicant’s lack of integrity and ability to conduct himself as a professional police officer andwarrantdismissal from the Force.  The SPO then went on to consider the mitigating factors and concluded that they justify suspending the punishment for one year.  In my view, the SPO’s approach is unimpeachable and Mr Lau for the applicantdoes not seek to argue otherwise.

26. In arriving at the conclusion that the punishment should be suspended, the SPO had referred to such matters as the applicant’s young age, remorse and resourcefulness.  These are matterscanvassedin the letters of mitigation.  Clearly the SPO had paid regard to the letters of mitigation and had accepted some of the contents, and was consequently led to conclude that the punishment should be suspended.  To the extent it is said the SPO had disregarded the letters of mitigation, it is not borne out by hisevidence.

27. Additionally, it cannot be said that the SPO had given no or insufficient weight to the letters of mitigation.  The amount of weight to be attributed to the mitigating factors is a matter for the SPO as the decision maker, and the court will not interfere unless he has acted unreasonablyin the Wednesbury sense: Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759 at 764G-H.  The evidence in this case however falls short of showing that the SPO’s decision 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 Unions v.  Minister for the Civil Service [1984] 3 All ER 935.  In my view, the SPO had adopted an approach that he was entitled to and had,after considering the mitigation letters and other factors, arrived at a set of awards that was within the range of his power.  The challenge to the SPO’s decision thereforefails.

The FDO’s decision

28.  In his deliberations dated 26 October 2002, the FDO began by stating that he had read the record of the disciplinary proceedings and the related papers in the defaulter report against the applicant leading to the direction.  In his representation to the FDO urging him not to increase the punishments, the applicant noted that the mitigations were not mentioned in the FDO’s deliberations and pointed out that it was wrong in principle to ignore the mitigations.  In his decision dated 6 November 2002, the FDO stated that he had carefully considered the applicant’s representations but did not consider there wasanything to allay his doubts as to the applicant’s integrity and to justify leniency.

29. The applicant’s complaint is that the FDO had failed completely to have regard to the mitigations he had put forward in that none of them had beenmentionedin the deliberations or the decision.  The applicant argues that mitigating factors are material to the determination of the appropriate awards, citing the case of R v. Manchester Metropolitan University, ex p. Nolan [1994] ELR 380 in support.  

30. The facts and circumstances in Nolan’s case are different from the present one in that the FDOdid have available to him all the mitigations and information.  That said, however, I accept that in principle mitigations are relevant considerations to be noted by a decision maker when deciding on the punishment to be imposed.  The crux of the issue here is whether by not setting out specifically the mattershe had considered,isthe FDOtobe taken as not having consideredany ofthe mitigations advanced. 

31. In my view, it is important to appreciate the role of the FDO.  The matter went before him under Regulation 14(4)and (5)of the Regulations for confirmation of the findings of guilt and awards.  He was not dealing with the matter or makingtheawardsde novo. As a confirmation officer who was mindful of increasing the punishment, the focus of the FDO’s deliberation and decision mustnaturallybe to explain why an increase in punishment is required, hence an emphasis on what he perceived to be the gravamen of the charges and the aggravating factors.  The fact that he did not set out theapplicant’smitigations in his deliberation and decision cannot be taken as indicative of the FDOnot having read or consideredthe mitigations.  The weight to be placed on the mitigations is as said above a matter for the FDO.

32. It is also not to be missed that the FDO had stated that he had read the notes of proceedings and the relevant papers in the defaulter report.  The mitigations and the letters and statements of mitigation were among the notes of proceedings and the defaulter’s report.  Some of the mitigations were also repeated in the representations the applicant put in to show cause against an increase of the awards.   In short, the challenge that the FDO’s power to increase the awards is invalidly exercised and his decision illegal is without merits.

The DCP’s decision

33. Under Regulation 15(2) and (3), the Commissioner of Police in dealing with an appeal has a wide power.  He may vary and substitute any findings on the evidence and may vary the punishment imposed or order a rehearing of the case on some or all of the charges.  He also has power to call for additional evidence.  The exercise of the Commissioner’s power is not confined to cases where there are errors in the decisions under appeal.

34. In the present case, the applicant was invited to make further representations in response to the comments made by the Discipline Section on his appeal.  The applicant made the “last word” representation on 7 December 2002.  Both the written appeal and the “last word” representation had been taken into account by the DCP.  The DCP was of the view that the applicant had been reckless in borrowing beyond his ability to repay and had also been dishonest in relation to his indebtedness.  In conclusion, he said:

“In considering the Defaulter’s appeal, I have also taken into account [sic] his guilty plea, his mitigations and those on his behalf, and his good record of services.  However, I cannot find sufficient merits to justify a lenient award.  I therefore dismiss the appeal.”

35. There is thus a clear indication that the DCP had taken into consideration the mitigations put forward by the applicant.  Having regard to the entire appeal process and the written deliberation of the DCP, the criticism that the DCP had given insufficient consideration to the mitigations is not supported by the evidence.

36. The applicant contends that the DCP should have pointed out the inadequacy of the FDO’s decision, namely, there was no mention and consideration of the mitigations advanced.  I agree with Miss Chung that in view of the wide power of the Commissioner on an appeal, the DCP is not bound to consider the applicant’s appeal by reference to the deliberations of the FDO.  The DCP is entitled to approach the case by reference to all the relevant circumstances, including the mitigations made hitherto and the representations made on appeal, and to come to his own views on the gravity of the charges and the appropriate awards to be imposed.   

37. In my view, there is no basis for the challenge that the DCP’s decision is irrational.

38. Given my conclusions on the three decisions under challenge, it is not necessary to deal with the arguments whether the appeal to the DCP had cured any defect that may have occurred in the decisions of the SPO or FDO’s and whether the case ofCalvin v. Carr[1980] AC 574 at 592-593.  I therefore express no views on the arguments.  

Conclusion

39. For the reasons stated above, the application for judicial review is dismissed.  Applying the normal rule of costs follow event, there is an order nisi that the applicant pays the costs of the respondent, to be taxed if not agreed.  The applicant’s own costs be taxed under the Legal Aid Regulations.

(C Chu) Judge of the Court of First Instance High Court

Mr Nicholas Lau instructed by Messrs. Kitty So & Tong for the applicant.

Miss Ada Chung Deputy Principal Government Counsel of the Department of Justice for the respondent.

Appeal by applicant to Court of Appeal dismissed. Please refer to CACV290/2005 dated 17 March 2006