LAM SIU PO v. COMMISSIONER OF POLICE

CACV 340/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 340 OF 2005

(ON APPEAL FROM HCAL NO. 7 OF 2003)

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REASONS FOR DECISION

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Hon Tang VP (giving the reasons for decision of the Court):

1.  The applicant was a police constable.  He was adjudicated bankrupt in September 2000.

2.  On 27 March 2002, he was found guilty of a disciplinary charge brought under Police General Orders (“PGO”) 6-01(8).  He was ordered to be compulsorily retired with deferred benefits suspended for 12 months on 4 April 2002.  That was varied to one of immediate execution on 15 July 2002.  On 23 October 2002 he was compulsorily retired with deferred benefits.

3.  At that time PGO 6-01(8) provided:

“A police officer shall be prudent in his financial affairs.  Serious pecuniary embarrassment stemming from financial imprudence which leads to the impairment of an officer’s operational efficiency will result in disciplinary action.”

4.  It was introduced by amendment on 22 September 1999 (“the 1999 version”).

5.  The Police (Discipline) Regulations 9(11) and 9(12) permitted the applicant to be represented by:

“(11) …   (a)   an inspector or other junior police officer of his choice; or

(b)   any other police officer of his choice who is qualified as a barrister or solicitor,

who may conduct the defence on his behalf.

(12)   Subject to paragraph (11), no barrister or solicitor may appear on behalf of the defaulter.”

6.  In the present proceedings, the applicant challenged the legality of these regulations insofar as they restricted legal representation, in particular, he relied on Article 10 of Hong Kong Bill of Rights (“BOR”).

7.  This application was dismissed by Chung J on 23 August 2005.  His appeal to us was dismissed on 8 November 2007.

8.  We took the view that we were bound by our previous decision in 陳庚秋 訴 香港警務處處長, HCMP 2824 of 2004, unreported, dated 29 December 2004, where this court held that Article 10 was inapplicable to a police officer who faced a similar charge.  However, as we pointed out in our judgment:

“21.   … when a suitable case arises, the applicability of Article 10 can be reviewed by the Court of Final Appeal.”

9.  The applicant sought leave to appeal to the Court of Final Appeal.  Mr. Johannes Chan, SC (leading Ms. Margaret Ng) contended that the intended appeal involved 3 questions which can be said to be of general and public importance, mainly:-

“(1)   whether Art.10 of BoR is engaged in police disciplinary proceedings;

(2) whether R.9(11) and (12) are consistent with Art.10 of BoR; and

(3) whether it is necessary or permissible to adduce evidence to prove or disprove an ‘impairment of operation efficiency’ as a police officer (in addition to ‘serious pecuniary financial embarrassment stemming from financial imprudence’) in establishing a disciplinary offence under PGO 6-01(8).”

10.  The respondent did not dispute that the 1^st and 2^nd questions are potentially of general or public importance, but opposed the application on the ground that they were academic so far as the applicant was concerned because we have said in our judgment that:

“22.   … on the facts [the applicant’s] conviction was inevitable.”

11.  Mr. Anderson Chow, SC for the respondent submitted that since the 1999 version has been amended, any decision concerning its proper construction would not be of general public importance.

12.  The 1999 version has been amended on 2 July 2003 (“the 2003 version”).  The 2003 version which is current provides:

“A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment stemming from financial imprudence is regarded as a circumstance which impairs the efficiency of an officer and will result in disciplinary action.”  PGO 6-01(8).

13.  The earlier versions of PGO 6-01(8) were:

“(1)   From 18 July 1984

‘A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment from whatever cause is regarded as a circumstance which impairs the efficiency of an officer and, if occasioned by imprudence or other reprehensible cause, may form the basis of a disciplinary charge.’”  1984 PGO 6-02(4D) (“the 1984 version”)

(2) From 30 January 1993:

‘A police officer shall be prudent in his financial affairs.  Serious pecuniary embarrassment from whatever cause is regarded as a circumstance which impairs the efficiency of an officer.’” (“the 1993 version”)

14.  As we have pointed out in our judgment, the fact that the applicant was in serious pecuniary embarrassment stemming from financial imprudence was obvious and had never been in dispute.

15.  We went on to say in para. 27 of our judgment:

“27.   This court has consistently held that serious pecuniary embarrassment would necessarily lead to impairment of operational efficiency of a police officer within the meaning of PGO 6-01(8).  See, for example, 陳庚秋and Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653.”

16.  As noted above, the applicant was found guilty of the disciplinary charge on 27 March 2002.

17.  The judgment of this court in Leung Fuk Wah was handed down on 28 March 2002.  陳庚秋 was decided in 2004.

18.  Here, the adjudicating officer in convicting the applicant appeared to have adopted the ‘two-pillar’ approach following the decision of Stone J in Ng Kam Chuen v Secretary for Justice [1999] 2 HKC 291, which was decided on 1 April 1999.  Stone J was concerned with the 1993 version.

19.  This is what Stone J said at page 296 of the report:

“With respect, I am unable to agree with this interpretation.  In my judgment, a reasonable and purposive construction of the present charge based on PGO 6-01(8) is that the Force bears the ultimate legal burden of establishing both serious pecuniary embarrassment stemming from financial imprudence and consequent impairment of efficiency of the officer concerned, but that upon the demonstration of serious pecuniary embarrassment (in most instances, I should have thought, something which will be as plain as a pikestaff) the evidential burden then shifts to the accused officer to establish that his efficiency as an officer has not been impaired.  Whether this be put in terms of responding to a rebuttable presumption or in terms of the shifting of the evidential burden does not seem to me to much matter; in disciplinary proceedings based on this Order (at least wherein the charge is framed in like terms to that of the present), the Force is empowered to start from the premise that one state of affairs (serious pecuniary embarrassment) does in fact lead to the other (impairment of efficiency as an officer) without the necessity of leading evidence on the point, and the ball is then in the accused officer’s court to displace the view expressed within this particular General Police Order.  What in my judgment it does not do is to sanction an approach whereby the issue of impairment of efficiency is, in effect, simply discarded from consideration by reason of the perception that such is conclusively presumed within the terms of the Order.”

20.  It appears from a memo from the Commissioner of Police dated 15 April 1999 that the Commissioner understood the ‘two-pillar’ approach to require that:

“4. … both serious pecuniary embarrassment stemming from financial imprudence, and consequent impairment of efficiency have to be established”. [Emphasis added]

21.  It seems likely that the 1999 version was adopted to give effect to Ng Kam Chuen.  It was said in that memo:

“5. In effect the Commissioner’s stance on this issue remains the same. Evidence, illustrating that a police officer’s efficiency has been impaired as a result of his indebtedness must exist before the disciplinary offence of contravening PGO 6-01(8) can be libelled against him or her. The rationale for this (see advice at Annex A) is that should the Commissioner harbour concerns over an officer’s financial imprudence and wish to take action in respect of it, any subsequent failure to establish how the latter’s financial situation had impinged upon his ability/efficiency as a police officer would represent arbitrary interference with that individual’s privacy as provided for by Article 14 of the BOR.”

22.  The advice referred to was given in October 1995, by the Attorney General’s Chambers which contained the following paragraphs:

“10.   It is therefore the view of these Chambers that whilst PGO 6-01(8) is capable of creating two separate offences against discipline only one, namely failure to be prudent in financial affairs is an offence against discipline where such failure impairs an officer’s efficiency, is proceeded with.

11.    Whether or not amendment to PGO 6-01(8) is necessary is for the Commissioner to determine.  As currently worded the Commissioner’s intent is clear; an officer is required to be prudent in his financial affairs and where he fails or suffers serious pecuniary embarrassment thereby impairing his efficiency he will be subject to disciplinary action.

12.    The foregoing details an interpretation of PGO 6-01(8) which will not infringe the BOR and which has been followed by these Chambers since the introduction of the P.G.O..”

23.  In Leung Fuk Wah, this court was also concerned with the 1993 version.  Cheung JA in delivering the judgment of the court overruled Ng Kam Chuen.  The learned judge said:

“84.   … However, as serious pecuniary embarrassment is regarded as a circumstance impairing efficiency, it is not necessary to adduce further evidence on the impairment of efficiency.”  Para. 84.

24.  It is likely that Leung Fuk Wah led to the adoption of the 2003 version.

25.  In our decision, we followed Leung Fuk Wah notwithstanding the different language in the relevant 1999 version.  Our decision involved 2 questions: (1) the applicability of Leung Fuk Wah.  (2) the correctness of the Leung Fuk Wah decision.  The first question may not be of great general importance but the second is, since Leung Fuk Wah continues to provide guidance on the proper construction of the 2003 version.

26.  In Leung Fuk Wah, the court relied on “Force Policy on the Management of Indebtedness” (“the Force Policy”) including the statement that:

“Serious pecuniary embarrassment from whatever cause, is regarded a circumstance which impairs his efficiency and is not acceptable.”

and concluded that:

“81.   … supports the construction placed on PGO 6-01(8).”.

27.  The Force Policy was Annexure “A” to the “Instructions as to the Management of Indebtedness” dated 29 June 2001 issued by the Commissioner (“the Instructions”).  When dealing with the posting of “Officers with unmanageable debts” (“OUD”), it stated:

“40.   … If an officer, identified as having unmanageable debts, is deployed in a sensitive post the officer’s Formation Commander should examine whether the officer is still suitable to remain in the post. …

……

42.    Apart from sensitive posts, the Formation Commander is also required to consider whether there is a need to restrict the OUD’s range of duties to those which the Formation Commander has confidence the OUD can carry out and/or to allow the OUD to carry firearms whilst on duty. There will be prima facie evidence of PGO 6-01(8) having been contravened if, after the review, the office is not permitted to carry firearms on duty; is transferred out of his/her post (be it a sensitive/specialised post or not); or have his/her duties restricted in any manner because of the officer’s indebtedness. Under such circumstances, the Formation Commander should conduct a disciplinary review in accordance with the guidelines in the ‘Disciplinary Action’ section below.

……

49.    In general, when considering whether a contravention under PGO 6-01(8) has been committed the Formation Commander must examine all relevant factors as well as the individual circumstances of the indebted officer which should include: the cause and level of his/her indebtedness; the suitability to retain the officer in his/her post or to be posted to sensitive post; the suitability to carry firearms whilst on duty; and whether or not the officer can be trusted to handle cash and valuables in the course of his/her duty.

50.    If the Formation Commander loses confidence in the officer’s integrity and/or his/her ability to perform a full range of constabulary duties because of his/her serious pecuniary embarrassment stemming from his/her indebtedness and as a result restricts the officer’s duties including prohibition from handling cash and valuables coming into police custody and/or carrying firearms on duty, or transfers the officer out of his/her post, be it a sensitive/specialised post or not, there is prima facie evidence of PGO 6-01 (8) having been contravened.

51.    However, should the Formation Commander simply restrict the officer’s duties as a ‘matter of course’ without reference to the individual circumstances of the officer’s indebtedness and the officer’s ability to perform his/her duties, the officer’s efficiency can then be said to have been impaired by circumstances outwith his/her control. It is therefore imperative that any decision to restrict the officer’s duties, including transferring the officer out of his/her post or prohibiting the officer from carrying firearms on duty, must be made after careful consideration, and the reasons for the decision fully documented.”

28.  It appears from the above that it might not have been the Commissioner’s view that pecuniary embarrassment would necessarily affect the efficiency of a policeman.  The court, of course, is not bound by the Commissioner’s view.  But if reliance should be placed on such view it would appear that the Commissioner took the view, (see the memo of 15 April 1999 quoted in para. 20 above) that he had the burden to show consequent impairment of efficiency.  The Instructions appeared to be consistent with that view.

29.  Lastly, we do not believe that a successful appeal on the first 2 questions will be academic since our decision that conviction was inevitable was based on Leung Fuk Wah.  So if Leung Fuk Wah was wrongly decided or that we were wrong to have applied the reasoning in Leung Fuk Wah to this case notwithstanding the different language used in the 1993 version and the 1999 version, the outcome of the appeal may be different.

30.  So although we might have framed the 3^rd question differently, we believe this was a case for leave to appeal.

Appeal allowed: see FACV9/2008 dated 26 March 2009