Docking pay 'does not tar officers'
Docking the pay of a police officer undergoing disciplinary investigation was not an attack on the presumption of innocence, the government argued in court yesterday.
The Court of Appeal was hearing an appeal into the December 2005 quashing of a decision by the Commissioner of Police to withhold part of the pay of a sergeant accused of fraud, pending the outcome of his trial. Yeung Chung-ming was later found guilty in January 2004 of two counts of fraud.
Mr Justice Anselmo Reyes, in the Court of First Instance, had ruled that docking Yeung's pay leading up to the trial violated the presumption of innocence enshrined in Article 11 of the Bill of Rights.
The Commissioner of Police has appealed against this decision.
Rimsky Yuen Kwok-keung SC, for the commissioner, said yesterday public interest demanded that officers suspected of misconduct be taken off active duty and have their pay reduced during investigations.
The process of barring an officer from active duty is called 'interdicting'.
'The rationale ... was that interdicted officers were not in active duty,' Mr Yuen said.
'The fact they weren't in active duty meant they had no entitlement to full pay - this should not be viewed as a prejudgment of the criminal process.'
Mr Yuen noted the reduction of an interdicted officer's pay was permitted by the Police Force Ordinance, under which all officers were employed.
'If under the Employment Ordinance an employee can be suspended without pay, then why not police officers?' he asked.
'The formulation of the policy is more than crystal clear that the Commissioner of Police did not intend to infringe the presumption of innocence.'
The court also heard that pay forfeited by an officer during an investigation can be refunded if he or she is cleared of wrongdoing.
But Gerard McCoy SC for Yeung said no matter how it was explained away, the removal of someone from active duty and the docking of their pay amounted to a presumption against their innocence.
'The presumption of innocence has entered Hong Kong via the Basic Law so it has a very high normative value,' Mr McCoy said. 'There must be a proven necessity for [a right] to be outweighed in specific circumstances.
'Once you have a right, it is not something that can be displaced by a skilfully written letter.'
The court reserved its decision.