KONG KWOK KEUNG v. COMMISSIONER OF POLICE

HCAL 128/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTION AND ADMINISTRATIVE LAW LIST

NO. 128 OF 2012

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JUDGMENT NO.2

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1.  The Applicant is applying for judicial review against:

(1) The decision of the Adjudicating Officer dated 24 October 2011 convicting the Applicant of serious pecuniary embarrassment stemming from his financial imprudence which has impaired his operational efficiency in contravention of Police General Order (“PGO”) 6-01(8);

(2) The decision of the Senior Police Officer dated 7 November   2011 confirming the finding of guilt and making the award of reduction in rank to police constable;

(3) The decision of the Force Disciplinary Officer dated 17 February 2012 confirming the finding of guilt and the award of reduction in rank to police constable and making a   warning for dismissal (general) valid for 3 years;

(4) The decision by the Commissioner of Police dated 12 July     2012 ratifying the finding of guilt, award of reduction in rank and warning for dismissal.

2.  I have previously refused leave for judicial review. The Applicant appealed to the Court of Appeal whereby leave was granted.

Background

3.  The Applicant is a police sergeant. In 2007, his wife petitioned for divorce (FCMC 9555/2007).  In the ancillary relief proceedings for divorce, the Applicant averred that he gambled away the family savings in Macau.  Notwithstanding that, the Family Court ordered him to pay a lump sum of $775,000 to his ex-wife.

4.  The Applicant sought help from the Police Welfare Officer about the divorce without formally reporting the proceedings to the Force.  In September 2009, the Applicant was promoted to Sergeant while his divorce was not formally reported to the Force.

5.  On 22 March 2010, the Applicant was adjudged bankrupt by reason of his failure to make the lump sum payment to his ex-wife.  He reported the bankruptcy on 12 April 2010. 

6.  On the next day, the Applicant wasprohibited from drawing firearms. 

7.  On 15 March 2010, the Applicant was interviewed by Senior Superintendent Ziemann.  SSP Ziemann referred to the 4 considerations for the imposition of restricted duties:

(a) possible stress due to the bankruptcy;

(b) sensitive posting in the ASU;

(c) concern over emotional instability from the proceedings and family problems;

(d) doubt in integrity due to failure to inform the commander of the divorce and family proceedings.

8.  The Applicant was classified an officer with unmanageable debts (“OUD”).  At that stage, he had not referred to gambling in Macau.  The restriction in drawing firearms was confirmed and he was removed from front line duties in the Airport Security Unit (“ASU”). 

9.  PGO 6-01(8) (1999 version) provides that:

“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 discipline action.”

10.  The Applicant was charged with contravention of PGO 6-01(8) (Charge A):

“(The Applicant), you are charged that from 12 December 2008 onwards, in Hong Kong, you did fail to be prudent in your financial affairs by amassing unmanageable debts of $775,000, which serious pecuniary embarrassment stemming from your financial imprudence has impaired your operational efficiency, contrary to PGO 6-01(8).”

11.  He was also charged with failure to report the divorce and the bankruptcy proceedings (Charges B and C).      

12.  During the disciplinary enquiry, the Applicant admitted gambling away the family savings in Macau.

13.  It is common ground that the Applicant always had good performance reports, before and after being placed on restricted duties.

Adjudicating Officer’s decision

14.  The Applicant was found guilty of Charge (A) by the Adjudicating Officer (“AO”) in the judgment dated 24 October 2011:  

“33. The Prosecution was required to prove Defaulter was imprudent in his financial affairs resulting in amassing the debt. In this connection, the Prosecution relied on the judgment of the divorce and ancillary relief proceedings to prove this element. Defaulter conceded that their family asset totalled at $1.65 millions-HK on 2007-07-22 and that his ex-wife was entitled to half of the sum. Defaulter knew his ex-wife had filed a divorce and ancillary relief proceedings sometime in Sep 2007. Defaulter could not control his emotion after realizing the divorce proceedings and gambled away all the savings. This should include the sum to which his ex-wife was entitled. Defaulter also made similar confession in his interview with PW1 (SSGT WL YU) that he knew his marriage could not be salvaged and went to Macau to gamble in the hope for security for his ex-wife and his children but eventually lost all the money.

34. Defence may want to argue that Defaulter should not be responsible for the debt of $775,000-HK as ordered by the court on 2008-12-12 as he only gambled away the money in his possession. However, it must be pointed out that when Defaulter went to gamble in Macau, he should be aware that his ex-wife had already filed a claim of her entitlement of the family asset. In other words, half of the amount of the asset would not belong to Defaulter, if the court ruled in favour of his ex-wife. He should have known or considered half of the money did not belong to him and yet he gambled it away.

35. Moreover, the unmanageable debt of Defaulter should not be due to unforeseen and compassionate circumstances as Defaulter had knowledge that half of the family savings should belong to his ex-wife who had already initiated the proceedings for a claim of her share. There was also no ground for compassion for losing such a large amount of money in gambling. Defaulter was obviously imprudent in handling his financial affairs, resulting in his subsequent financial problem.

36. There was no information on when and how Defaulter gambled in Macau as Defaulter did not disclose such details in this case. Defaulter merely said that he went on the gambling spree after having realized the divorce proceedings initiated by his ex-wife. This should be sometime after Sep 2007. Defaulter was already imprudent in dealing in his financial affairs with his gambling away of all the family savings at such time. With the court order issued to Defaulter on 2008-12-12 and onwards, Defaulter’s financial imprudence was formalized. His financial imprudence should not stop even if he had ceased gambling as the impact of imprudence had continued to affect Defaulter so that he was subsequently adjudged bankrupt.

37. Defence submitted that financial situation of Defaulter was healthy as he did not have other debts with the exception of the $775,000-HK after he was adjudged bankrupt. Defaulter was also able to pay the monthly maintenance payment to his ex-wife with no arrears up to April of 2010, as indicated in the Official receiver’s memo to the force [AE 3]. His financial situation should therefore not be unmanageable. However, the bankruptcy order alone was already irrefutable evidence on Defaulter’s debt being unmanageable, else he could have settled the payment later. This was also a serious pecuniary embarrassment to Defaulter.

38. POLR in her final submission quoted the judgment in para.graph 84 in the case of ‘Leung Fuk Wah v Commissioner of Police’ (CACV 2744/2001) to submit that serious pecuniary embarrassment was proved by the police officer having unmanageable debts. Imprudence was proved by the circumstances in which these debts occurred. She also quoted the case of Lee Kwok Wing Jackson v Secretary for Justice (HACL 142/2002), para.graphs 17-18 on the use of the objective test in considering imprudence. These are reasonable comments which were applicable in Defaulter’s case.

39. Defaulter’s unmanageable debt was resulted from the loss in gambling of all the family savings by Defaulter, which was evidence of the officer’s imprudence in handling his financial affairs. The gambling in Macau was also a reprehensive cause in incurring the debt. Defaulter eventually could not settle the debt, resulting in the bankruptcy order being issued to him. His unmanageable debt was already evidence of his serious pecuniary embarrassment.

41. The Prosecution has therefore adequately proved Defaulter’s serious pecuniary embarrassment by amassing the unmanageable debt, as resulted from his imprudence in his financial affairs, after the decree absolute order was issued, which was sometime since 2088-12-12 onwards and until present, being the first element in Charge (A).”

42. In proving the second element of Charge (A), it is necessary for the Prosecution to prove Defaulter’s serious pecuniary embarrassment had impaired his operational efficiency. PGO 6-01(8) did not specify the definition of operational efficiency. However, it is obvious that this provision should not only be limited to the general efficiency or the actual performance of the officer concerned, but should also include the ‘efficiency’ of the officer judged from the management point of view.

43. According to the Force Administrative Instructions on the Management of OUD [Annex C], OUDs may be in a position where they may be compromised. Accordingly, they should be subject to close supervision. If an OUD is deployed in a sensitive post, the Formation Commander should examine whether the officer is still suitable to remain in the post.  In considering to placing an OUD on restricted duties where there are doubts as to his integrity, mental ability or there are other relevant concerns, should go through, and record, a thought process for making any such a decision. In reaching such a decision the supervisory officer should consider and record matters such as [Annex D]:

· possible stress on the officer due to his debts;

· any behavior or remarks indicating the officer is under stress;

· any concerns about suicidal behavior;

· concerns about the officer’s integrity and honesty i.e. has made false statements about, or failed to disclose, his debts during interviews;

· concerns about the possibility of danger to himself, his colleagues or to the public at large if the officer is permitted access to firearms;

· concerns about allowing the officer to handle money or valuables;

· possibility of having to handle “public money” under CSR 458.

48. In proving the second element of Charge (A), i.e. serious pecuniary embarrassment resulted from Defaulter’s imprudence in financial affairs has impaired Defaulter’s operational efficiency, the Prosecution called PW3, ex-DDC APTDIST, to testify the reason of his prohibiting Defaulter from drawing firearm for duty and placing Defaulter on restricted duty, i.e. UB APTDIST, after his bankruptcy status was revealed.

49. PW3 testified that he had considered a number of issues in making the decision.  He had recorded down his thinking process in his report [PE 6] outlined as follows:-

(a) The possible stress on him due to the bankruptcy order now placed on him;

(b) The District is a ‘sensitive’ positive post under Managed Posting Arrangement (MPA). On a daily basis passengers’ property including valuables are handled by officer in the District; and there is a possibility of the officer handling ‘public money’;

(c) There are concerns over his emotional instability arising   from these proceedings and his family problems; and

(d) His integrity is in doubt due to his failure to inform his Formation Commander of the two legal proceedings against him.

50. PW3 (SSP D Ziemann) elaborated his thinking process in the hearing.  In reaching the decision, he had considered the possible stress on Defaulter as the result of his financial problem becoming known. He had concern how the officer would respond to the stress and emotional stability arising from the proceedings of the bankruptcy and divorce. PW3 has also considered the possibility Defaulter had to handle passenger property and valuables in his daily duty in ASU. PW3 had doubt of his integrity and honesty after he had failed to notify the Formation Commander on the two proceedings. Defaulter had to carry firearm and interaction with the public in ASU.  Police officers might suddenly have emotional breakdown and for the safety of the officer, his team members and members of the public, he decided to put him in a less stressful post where he did not have to respond to incident where instant decisions are necessary.

51. PW3 therefore prohibited Defaulter from drawing firearm and placed on UB duty in the Control Room of Airport District. It was clear that PW3 did not routinely, or just as a ‘matter of course’, put the officer on the restricted duty solely after his bankruptcy status was known to the management.  Furthermore, his worry of the integrity and honesty of the officer was evidenced by his reprehensible gambling in Macau and failure to report the two proceedings to his Formation Commander.

52. Defaulter could not continue to perform his original duties in ASU because of his financial problem and was put on restricted duties by the management. His operational efficiency had already been impaired as the result. The Prosecution had adequately proved the second element in Charge (A), as well as the charge as a whole.

53. DLR had in the hearing made considerable effort to present the consistent exemplary work performance of Defaulter between 2005 and up to Jun 2011 even after Defaulter was transferred to UB duty in the Airport with the view to proving Defaulter’s operational efficiency had not been impaired. DLR highlighted that Defaulter’s outstanding work performance was least affected even after he had been involved in the divorce and bankruptcy proceedings since 2007. PW2, the immediate commander of Defaulter in ASU APTDIST between Oct 2009 to Apr 2010, also confirmed Defaulter’s outstanding performance in the period.  PW2 commented that Defaulter even performed better than other experienced SGTs in the unit. DLR had tried to prove the operational efficiency of Defaulter was at no time impaired.  However, as mentioned in the foregoing para.graphs, the ‘operational efficiency’ in this subject PGO order should not only be limited to his actual work performance but should include “efficiency” judged from the management point of view, particularly the officer’s suitability for posting. There was no dispute that the actual performance of Defaulter had all along been consistently well report.  However, with the considerations and concerns raised by PW3 based on the particular issues and available evidence, Defaulter could not continue his original duty. His ‘Operational Efficiency’ was obviously impaired. And the situation remained unchanged until present when Defaulter was still being placed on the restricted duty and prohibited from drawing firearm.”

15.  The Applicant was also found guilty of the failure to report a legal action (namely the bankruptcy petition) (Charge (C)).The findings of guilt were confirmed by the superior officers successively up to the Commissioner as stated above.

Applicant’s grounds

16.  The grounds for judicial review were:

(1) The AO adopted an incorrect approach in stating two rather than three elements must be proved for  Charge (A);

(2) The AO erred in relying on Tu Kin Yip v SJ (HCAL 147/2001) in that “operational efficiency” under PGO 6-01(8) was not limited to the Applicant’s actual work performance but also included efficiency as “judged from the management point of view”, namely the Applicant’s suitability for posting;

(3) The finding that the operational efficiency of the Applicant was impaired was irrational given that there was no evidence to prove the operational efficiency of the applicant had been adversely by his bankruptcy.

Legal context

17.  PGO 6-01(8) (1999 version) (see para.10 above) superseded the 1993 version, and the 1993 version reads:

“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.” (emphasis added)

18.  In Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653, Cheung JA held that under PGO 6-01(8) (1993 version), once serious pecuniary embarrassment is proved, it is not necessary to adduce further evidence on the impairment of efficiency (para.84).

19.  In Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237, the Court of Final Appeal held (at para.150) that under PGO 6-01(8) (1999 version) there are 3 elements (as opposed to 2 elements in the 1993 version):

(1) the officer must be guilty of conduct amounting to financial imprudence;

(2) such conduct must result in serious pecuniary embarrassment;

(3) the said serious pecuniary embarrassment must lead to impairment of that officer’s operational efficiency.

20.  The 1999 version requires proof of impairment of the officer’s efficiency as a separate element of the offence, flowing from his serious pecuniary embarrassment (Lam Siu Po para.166).  The 3 elements are causally linked and occur in a sequence: financial imprudence causing serious pecuniary embarrassment causing the impairment of operational efficiency. Thus, the serious pecuniary embarrassment “stems from” financial imprudence and in turn “leads to” the impairment of operational efficiency (Lam Siu Po para.153).

21.  The meaning of “operational efficiency” is not defined under PGO 6-10(8).  InTu Kin Yip Chung J considered the meaning of “efficiency” in PGO 6-10(8) (1993 version) and held (at para.27) that:

“... when PGO 6-01(8) refers to ‘the efficiency of an officer’, that phrase is intended to include ‘efficiency’ judged from the management point of view, particularly the officer’s suitability for posting, and should not be limited to his actual work performance. A major reason for introducing PGO 6-01(8) is the need to ensure the highest personal standard of police officers in view of the risk of compromising their work. This is recognized by the Court of Appeal in Leung Fuk Wah Oil: para. 80-81 of the judgment. To restrict ‘efficiency’ to mere consideration of work performance and ignore matters like the honesty and integrity of an officer would take away much (if not all) of the purpose for which PGO 6-01(8) was introduced.”

22.  “Efficiency” in PGO 6-10(8) (1993 version) was replaced by “operational efficiency” in PGO 6-10(8) (1999 version).  In 盧漢新訴香港警務處處長  (Lo Hon Sun v Commissioner of Police of Hong Kong) HCAL 13/2004, Chung J further held that the replacement of “efficiency” by “operational efficiency” was intended to specify more clearly whether the relevant police officer’s efficiency was impaired should be assessed from the basis of the overall operation of the Police Force. [1]

23.  In 香港警務處處長對黎應安（Commissioner of Police of Hong Kong v Lai Ying On）CACV 226/2005, the applicant argued that his performance report had not been affected by his indebtedness.  Yeung JA (as he then was) held that:

“26. The appellant is a police officer but he was indebted seriously to the tune of $700,000, and was made bankruptcy because the inability to repay. Whatever the cause of the indebtedness, it indicated the appellant was imprudent in his finance and was under serious pecuniary embarrassment. The appellant cannot argue that although he had financial problem he can still effectively discharge his duties and not in contravention of PGO 6-01(8). The Commissioner’s posting of an officer indebted to a huge amount must be restricted, and this can be viewed as impairment of the officer’s operational efficiency.” [2]

24.  In 林志偉訴香港警務處處長（Lam Chi Wai v Commissioner of Police of Hong Kong）HCAL 56/2004, Chu J (as she then was) agreed with the judgment of Chung J in Lo HonSun that in consideration of the entirely of PGO 6-01(8), whether the operational efficiency of an officer should be viewed from the management view of the police force as a whole. [3]

25.  In Chan Wai Keung v Commissioner of Police HCAL 196/2002, A Cheung J (as the CJHC then was) held that:

“24. Secondly, counsel argues that there was simply no or insufficient evidence to prove that the applicant’s operational efficiency had been impaired by his pecuniary embarrassment.

…

27. Mr Pun eventually accepts that to a significant extent, his submission really turns on whether the instructions prohibiting the applicant from drawing firearms and the decision to switch him to indoor duties could be justified from a management point of view. This is a matter for the disciplinary tribunal, but not for the Court sitting in its supervisory jurisdiction.”

26.  In陳庚秋及香港警務處處長(Chan Keng Chau v Commissioner of Police Hong Kong) HCMP 2824/2004 (29 December 2004), Yeung JA (as he then was) observed that a police officer who was bankruptcy or had serious pecuniary embarrassment would face many restrictions in his work.  In order to prevent police officers who had serious pecuniary embarrassment from the temptation of bribery or abstraction of mind or lack of concentration at work, the Commissioner could make special arrangement in their posting, e.g. to avoid handling of properties or carrying of arms.  His Lordship held (at para.35) that:

“It was reasonable for the Commissioner to adopt the above mentioned measures. Hence, it is also inevitable that serious pecuniary embarrassment would lead to impairment of operational efficiency of a police officer.” [4]

27.  In Lam Siu Po, the Court of Final Appeal did not endorse the holding by the Court of Appeal in Chan Keng Chau that it was inevitable that serious pecuniary embarrassment would impair the efficiency of a police officer.  Ribeiro PJ said (at pp 125-6) that:

“161. The Court of Appeal in Chan Keng-chau did not rule on whether evidence of an impairment of operational efficiency was necessary or whether impairment would be presumed simply from the fact of serious pecuniary embarrassment. Instead, the Court declared itself satisfied that the Commissioner had in fact presented sufficient evidence of such impairment, pointing to various items of evidence adduced.

162. I am therefore not persuaded that these two authorities provide any basis for the Court of Appeal’s “inevitability” conclusion.”Court of Appeal’s decision.”

Court of Appeal’s leave decision

28.  In granting leave, The Court of Appeal made the following comments:

(1) Lam Siu Poheld that there must be a casual connection between the impairment of operational efficiency and the serious pecuniary embarrassment (para.6).

(2) It is necessary to distinguish between 2 questions:

(a) Whether it was reasonable for the commanding officer to impose restrictions on the deployment of the Applicant from the management point of view;

(b) Whether the serious pecuniary embarrassment in question had led to the impairment of his operational efficiency (para.7).

(3) In Lam Siu Po, notwithstanding that restrictions were imposed on the appellant, Ribeiro PJ held that one could not conclude inevitably that there had been impairment to operational efficiency (paras.10 & 11).

(4) In Chan Kang Chau Clarence v Commissioner of Police HCMP 2824/2004 (19 May 2010), in a subsequent decision on leave to appeal out of time Tang VP (as he then was) held    that in the light of Lam Siu Po, notwithstanding that restrictions were placed on the officer in terms of bearing firearms and assignment of duties, it could not be said that conviction of the officer on a charge under PGO 6-01(8) was inevitable (para.9).

(5) It is reasonably arguable that one must look beyond the mere fact that restrictions were reasonably placed upon the deployment of an officer in determining whether there had been any impairment of operational efficiency, and it is arguable that the approach in Tu Kin Yip may have to be modified (para.12).

(6) At the same time, one could see the force behind Chung J’s regard in Tu Kin Yip for the purpose behind PGO 6-01(8), and also the importance on the importance placed upon the standard, integrity and honesty of police officers. But as observed by Bokhary PJ in Lam Siu Po PGO 6-01(8) is a penal provision, whether all considerations pertaining to standard, integrity and honesty are relevant in proceedings under PGO 6-01(8) need to be examined with care (para.13).

Discussions

29.  Ground (1) was dealt with by me in the leave judgment, and was not taken up further by the Court of Appeal in granting leave.

30.  As to Grounds (2) and (3), Mr Kwok, for the Applicant, submitted that Applicant was in restricted duties and firearms as a matter of routine and precaution.  He was interviewed by SSP Ziemann soon after the report of bankruptcy.  The ASU is an elite unit in the Force, and concerns about possible stress and emotions were well intended, but there was no objective evidence as such, or worse, the concerns were contrary to the appraisals of good performance. And the posting out had nothing to do with pecuniary embarrassment.

31.  Mr Kwok submitted that ever since Lam Siu Po, impairment of operational efficient can only be caused by serious impecunious embarrassment and nothing else, and must be proved by evidence. 

32.  Mr Kwok submitted in Leung Fuk Wah the Court of Appeal had considered the Force Policy and held that honesty and integrity should be considered in respect of impairment of efficiency.  At that time PGO 6-01(8) was regarded as a disciplinary charge, but Lam Siu Po held that the order imposed a penal charge and should be construed strictly.  The philosophy in Leung Fuk Wah and cases flowing therefrom is no longer relevant in the interpretation of the order.Integrity is not an element under PGO 6-01(8), and hence, is irrelevant. 

33.  Mr Kwok submitted that even assuming the consideration of integrity were relevant, gambling itself was not dishonest, and it must be financial imprudence which led to the serious pecuniary embarrassment.  Ii was the Applicant who revealed it and there was no concealment. 

34.  The Applicant was only convicted of one charge of failure to report a legal action (ie the bankruptcy petition), and only by reason of failure to adopt the proper procedure rather than concealment.

35.  The Applicant is not a habitual gambler.  He did not incur gambling debts as such but only dissipated the family assets.  His debts were owed to his ex-wife and enforcement action was taken by the Director of Legal Aid which culminated in his bankruptcy.  There is no risk of harassment by debt collectors as in other cases.

36.  Mr Kwok submitted that while the AO had considered gambling as background, the reason for conviction of the charge was based solely on impaired performance due to restricted duties and it did not include the gambling in Macau (AO para.52).  The AO must be wrong in taking the restrictions on duties per se as sufficient.

37.  Mr Kwok submitted that even assuming the consideration of impairment of operational efficiency from the management point of view under Tu Kin Yip were relevant, the AO erred in equating the restrictions in duties with impairment.  In any case, the AO erred in putting undue weight on the restricted duties and simply ignored the exemplary performance appraisals.

38.  Mr Chang, for the Respondent, submitted that while the Court of Appeal commented that it is reasonably arguable that one must look beyond the mere fact that restrictions were reasonably placed upon the deployment of an officer in determining whether there had been any impairment of operational efficiency, and it is arguable that the approach in Tu Kin Yip may have to be modified, it did not disagree with the authorities that operational efficiency is not restricted to the officer’s actual performance from the management view of the Force as a whole.  The Court of Appeal merely took the view that the fact of restricted duties per se is not equivalent to impairment of operational performance, whereas there needs to be casual link between serious impecunious embarrassment leading to the impairment.  Taking Tu Kin Yip to the extreme in simply relying on the management view is not good enough, but operational efficiency can include the management view provided that the causal link can be proven.

39.  Mr Chang conceded that the restriction on drawing firearms on 13 March 2010 might have been a matter of course, but there was an assessment by SSP Ziemann on 15 March. SSP Ziemann said that the Applicant was taken off the elite ASU not as a matter of course.  He had taken the 4 factors as a package, and the Applicant was taken off frontline duties because he could not be trusted with handling firearms and monies. 

40.  Mr Chang pointed out under the Administrative Instructions (“AI”) of the Police Force, restriction of duties is not automatically imposed on every OUD and each case is considered on its own (para.4), and possible stress is one of the factors to be considered.  Although there was no objective actual stress or emotional problem, it was reasonable for the AO to take possible stress into consideration in accordance with the AI as it affected the deployment.  The Applicant continued to receive good performance reports because he had been posted to a less stressful post.   The AO’s decision should not be interfered with on judicial review unless it was wholly irrational.

41.  Mr Chang accepted that integrity per se is not an element in PGO 6-01(8), but the context and circumstances of how the money was owed is relevant.  In this case, bankruptcy was caused by reprehensible gambling in Macau.  Integrity and honesty were wrapped up in the serious impecunious embarrassment.      

42.  Mr Chang submitted that the AO did not merely take the restricted duties per se in proving impairment of operational efficiency, he also took into account of integrity and honesty as evidenced by the reprehensible gambling in Macau (AO para.51).

43.  Upon consideration of the authorities referred to by the Court of Appeal, I find that one cannot say that restrictions imposed on the duties from a management point of view will inevitably lead to the conclusion of impairment of operational impairment.  One must look beyond the restrictions to see whether the precipitating factors are capable of proving impairment.

44.  Management decisions are often executive decisions taken promptly in the exigencies of the situation, with a view to assuaging concerns or alleviating risks.  Pure management decisions taken in precaution will not prove the charge under PGO 6-01(8) if there is no underlying evidence in support.   

45.  Impairment in deployment will of course affect overall operational efficiency.  But in proving the charge, the requisite evidence must be able to prove the unsuitability to handle firearms and/or moneys.  In this case, the evidence in support of impairment of operational efficiency was mainly concerns of stress and emotional instability of the Applicant.  In looking at the judgment, I am of the view that the AO’s finding of the charge proved was based on the Applicant’s operational efficiency was impaired as he was put on restricted duties by the management.   However, the decision on restricted duties was more a management decision for the alleviation of risks and concerns rather than on proof by actual evidence of stress or emotions.

46.  I note that in addition to SSP Ziemann’s worry, the AO has referred to concern integrity and honesty of the Applicant as evidenced by his reprehensible gambling in Macau (AO para.51). 

47.  It is beyond peradventure that gambling away the family assets is financial imprudence.  It resulted in bankruptcy of the Applicant, which is a serious pecuniary embarrassment.   In determining whether the operational efficiency is thereby impaired, one cannot overlook the factual background of the serious pecuniary embarrassment, especially in the context of a police officer.  As I have mentioned in my judgment on leave, integrity and honesty are foremost qualities in police officers, entrusted with extensive law enforcement power, and legitimately expected to be so by the public.  The presence or absence of issues of honesty and integrity in the financial imprudence in causing serious pecuniary embarrassment must be relevant in determining whether impairment of operational efficiency is caused.

48.  Although the AO did refer to the concern of integrity and honesty of the Applicant evidenced by his reprehensible gambling in Macau, integrity and honesty of the Applicant was only of subsidiary consideration.  I find that the AO had equated impairment of operational efficiency with the restrictions of duties, and the decision would have been the same regardless of the concern of integrity and honesty.

Conclusion

49.  In the premises, the conviction on Charge (A) is quashed.  But as mentioned before, the concern about the honesty and integrity of the Applicant was valid, hence, the case is remitted for rehearing before a different AO to consider, inter alia, whether there is sufficient evidence on the grounds of honesty and integrity to support the charge in the light of the Applicant’s exemplary appraisal reports. 

50.  Lastly, I thank Mr Kwok and Mr Chang for their helpful submissions.