SIU CHI WAN VINCENT v. SECRETARY FOR THE CIVIL SERVICE

HCMP 1907/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1907 OF 2009

(ON AN INTENDED APPEAL FROM HCAL 137 OF 2005)

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BETWEEN

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J U D G M E N T

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Hon Cheung JA :

Extension of time to appeal

1.  On 8 July 2008 Fung J refused the applicant’s application for judicial review against the decision of the Secretary for the Civil Service (‘the Secretary’) dated 21 July 2005 dismissing him from the service of the Correctional Services Department (‘CSD’). Fung J’s judgment was sealed on 12 August 2008.

2.  On 25 September 2009 the applicant applied to this Court for an extension of time to appeal against the judgment.

The factors

3.  The Court will consider the following factors in deciding whether extension of time to appeal should be granted :

(1)  the length of the delay;

(2)  the reason of the delay;

(3)  whether the appeal has any reasonable prospect of success;

(4)  prejudice to the respondent if the extension is granted.

4.  The starting point is that the time limit for appeal is prescribed for the purpose of providing a timetable for the conduct of litigation, and on the face of it, must be observed, otherwise a party would have an unqualified right to an extension of time. Recent authorities have stated that in considering whether extension of time should be granted the Court should not take a mechanistic approach by refusing an application simply because of delay, even if it is a substantial one. This is clearly the right approach : one must consider all the relevant factors, particularly the merits of the appeal instead of focusing solely on the delay.

Length of delay

5.  The applicant had 28 days from 12 August 2008 to appeal against the judgment. As the application to extend time was lodged on 25 September 2009, there was a substantial delay of nearly 12 months.

Reason for the delay

6.  The applicant claimed that he had always wanted to appeal against the judgment. He applied for legal aid to appeal on 28 July 2008. The application was rejected by the Legal Aid Department on 12 August 2008. Thereafter he did nothing until 6 July 2009 when he applied for legal aid again after he had heard of the judgment of the Court of Final Appeal in Lam Siu Po v. Commissioner of Police [2009] 4 HKLRD 575 which was delivered on 26 March 2009. Legal aid was granted to the applicant on 1 September 2009 and shortly thereafter the present application was lodged.

7.  In Lam Siu Po the Court of Final Appeal extended the protection of Article 10 of the Bill of Rights (‘right to a fair hearing’) to disciplinary tribunal proceeding against a civil servant. I will discuss the implication of Article 10 later but it must be pointed out that in the present case there was no complaint before the Judge that the Article 10 protection was infringed in the process leading to the Secretary’s decision. In any event any subsequent change of law does not by itself justify an extension of time to appeal, the intended appellant must show that there are proper grounds for granting extension of time.

8.  In my view the applicant has not provided a reasonable explanation for the delay.

Merits of the proposed appeal

9.  The issue before the Judge was the non-disclosure to the applicant of the Advice provided by the Public Service Commission (‘PSC’) that the recommendation to dismiss the applicant should be approved. While the Judge agreed with the principle that a decision maker should disclose the materials relied on against the person affected in order that he may respond to them, he held that the non-disclosure was justified by section 10 of the Public Service Commission Ordinance (Cap. 93) which stated that any report made by the PSC to the relevant authority shall be privileged in that its production may not be compelled in any legal proceedings unless the Chief Executive consents to the production.

10.  The Judge further held that in any event there was no prejudice to the applicant by reason of the non-disclosure of the Advice because there was no evidence that the PSB had considered matters other than those that had been disclosed, namely, the contents of M3 which was a memo sent by the Civil Service Branch (‘CSB’) to PSB enclosing a draft submission by CSB to the Secretary setting out the history of the matter. The Secretary had also disclosed M5 which was a subsequent submission by CSB to the Secretary. M5 was in substance the reproduction of the draft submission with some additional materials including references to the summary of the Advice from PSB and further representation from the applicant. In respect of the Advice from PSC, the relevant part of M5 stated that

‘ Consultation with the Public Service Commission

20.  In accordance with the agreed procedures for disciplinary cases involving officers of the disciplined services under the respective Ordinances, the Public Service Commission has been consulted.  The Commission advised that the recommendation to dismiss SIU should be approved.’

11.  This particular paragraph was marked as M4 at its margin. M4 was not disclosed to the applicant in the proceedings below.

12.  Although the Judge held that section 10(1) was a complete answer to the requirement of disclosure, in the light of Lam Siu Po,the non-disclosure which is an assertion of privilege clearly needed to be justified. Further, according to the jurisprudence on Article 6 of the European Convention on Human Rights which is the equivalent of Article 10 of the Bill of Rights the right to fair trial is an absolute right which does not permit the application of any balancing exercise and the public interest can never be invoked to deny that right to anybody under any circumstances (see The Law of Human Rights 2^nd Ed by Clayton & Tomlinson at paragraph 11.17-11.18). In the context of a claim for privilege in criminal cases the European approach showed that the government needs to apply for privilege in advance.

13.  In my view, subject to the matters which I will deal with in the following paragraphs, the applicant has raised an issue on appeal about the non-disclosure of the Advice which satisfies the ‘reasonable prospect of success on appeal’ threshold.

The actual disclosure

14.  That, however, is not the end of the matter because Mr. Shum, counsel for the Secretary, disclosed the Advice at the hearing before us. This was done in his reply to counsel for the applicant, Mr. Kwok’s submissions on the European jurisprudence. While Mr. Kwok opposed the admission of the Advice, we were prepared to look at it but allowed Mr. Kwok an opportunity to respond by a further written submission. Mr. Kwok submitted that the Advice ought not to be admitted in the first place. In Dr. Kwong Kwok Hay v. Medical Council of Hong Kong (No. 2) [2007] 4 HKC 446 this Court (Ma CJHC, Stock JA and Stone J) adopted the approach of E v. Secretary of State for the Home Department [2004] Q.B. 1044 on the admission of new evidence in judicial review appeals. The starting point is that the admission of new evidence is subject to Ladd v. Marshall principles but this may be departed from in exceptional circumstances where the interests of justice require. This Court in Dr. Kwong Kwok Hay emphasized that the burden is on the party seeking the exercise of discretion to show cogently that exceptional circumstances exist. A mere general reference to the public interest will not suffice : the Court is entitled to be provided with details of this.

15.  The admission of the new document obviously cannot satisfy the first limb of Ladd v. Marshall, namely, the evidence could not have been obtained with reasonable diligence for use at the trial. However, the evidence would clearly have an important influence on the result of the case and is credible under the second and third limbs of Ladd v. Marshall.

16.  Mr. Shum relied on the new document which he argued would provide a ‘short-cut to the disposal of the appeal’. In other words it would have a material effect on the outcome of the appeal. Bearing in mind that this is an application for extension of time to appeal after a substantial lapse of about one year and the applicant has to demonstrate that he has a reasonable prospect of success at the appeal, in my view, the admission of the new document which is clearly relevant to this issue can be justified under the exceptional circumstances requirement.

17.  The only ground that was advanced by Mr. Kwok on the non-disclosure of the Advice was that without having knowledge of its content, it would not be possible for the applicant to make any useful representation to the Secretary. On the face of it this is a valid point. But the disclosure of the Advice clearly shows that no unfair prejudice had arisen even if it was not disclosed in the first place because it is now clear that the summary in M5 was in accordance with the content of the Advice.

18.  The merits of the appeal on non-disclosure in the first instance is not simply a discourse of academic interest because at the end of the day the document that is required to be disclosed must be shown to have a material bearing on the decision which was being challenged. Even now Mr. Kwok is unable to advance any argument on how the Advice will have an impact on the outcome of the case beyond stating in vague terms that the late disclosure ‘gives rise to a reasonable suspicion that there could be something else which ought to have been but was not disclosed. If the minute itself would not have affected the result, there may well be something else which would’.

19.  In my view this is not good enough. At this late stage the applicant must lay his cards on the table to see what are the real issues which would have a material bearing on the outcome of his case. Let us envisage the following scenario. If this Court on appeal accepts that the non-disclosure constitutes a material irregularity, because it has no knowledge of the content of the Advice the only possible way to resolve the matter is for the case to be remitted for rehearing. The Advice is then disclosed but I just cannot see how it would assist the applicant in any way at all. To allow an appeal and a rehearing to take place in these circumstances would be a waste of time and costs and is contrary to good public administration. In my view this Court at this stage is perfectly entitled to receive the new document to assess the merits of the appeal. I have to say that in the light of the Advice, the appeal is lacking in merits. I am not satisfied that the merits of the proposed appeal requires an extension of time to be given. The issues of privilege and the ambit of section 10 will be addressed in another appropriate case.

20.  I wish to add that in the light of the innocuous nature of M4, the Secretary and his legal advisers ought to have considered disclosing M4 in the proceedings below without resorting to section 10. The fact that the Secretary may withhold production does not mean that this must be done as a matter of routine at the expense of creating some unreal contentious issues which could easily have been avoided in the first place.

Conclusion

21.  Accordingly I would dismiss the application.

Costs

22.  Mr. Kwok asked for the costs of the application despite the applicant’s failure to obtain extension of time. I do not consider this to be appropriate. Even if the applicant obtains an extension, the costs order for the application is one in the cause of the appeal. In my view because of the late disclosure of M4 which puts a different complexion on the application, the appropriate order is that there will be no order as to costs of the application. The applicant’s own costs are to be taxed in accordance with Legal Aid Regulations.

Hon Yuen JA :

23.  I agree.