IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTION AND ADMINISTRATIVE LAW LIST
NO. 128 OF 2012
||KONG KWOK KEUNG
||COMMISSIONER OF POLICE
|Before: Hon Fung J in Court
|Date of Hearing: 10 January 2013
|Date of Judgment: 21 February 2013
J U D G M E N T
1. The Applicant is applying for leave 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. The Applicant joined the Police Force as a police constable in 1993.
3. In 2007, his wife petitioned for divorce (FCMC 9555/2007), claiming half entitlement to the matrimonial assets of about $1.6 million. 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 in December 2008.
4. In 2007, the Applicant sought help from the Police Welfare Officer about the divorce, without reporting the matter to his commander or requesting the PWO to do so for him.
5. In September 2009, the Applicant was promoted to Sergeant while his divorce was not formally made known to the Force, and was posted to the Airport Security Unit (“ASU”).
6. On 22 March 2010, the Applicant was adjudged bankrupt by reason of failure to make the lump sum payment to his ex-wife. On 15 April 2010, the Applicant was classified as an officer with unmanageable debts (“OUD”), and was restricted from drawing firearms and removed from front line duties at the airport.
7. 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.”
8. The Applicant was charged, inter alia, 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).”
9. During the disciplinary enquiry into his bankruptcy, the Applicant admitted gambling away the family savings in Macau.
10. It is common ground that the Applicant always had good performance reports, before or after being placed on restricted duties.
Adjudicating Officer’s decision
11. The Applicant was found guilty of Charge (A) by the Adjudicating Officer in the judgment dated 24 October 2011 (“AO”):
“10. ... there were two essential elements for the Prosecution to prove:
i. that from 2008-12-12 onwards to present, Defaulter was imprudent in his financial affairs by amassing an unmanageable debt of HK$775,000; and
ii. that the serious pecuniary embarrassment resulted from the debt has impaired Defaulter’s operational efficiency.”
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 paragraph 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)...