WONG KEI KWONG v. PRINCIPAL ASSISTANT SECRETARY FOR THE CIVIL SERVICE AND ANOTHER

HCAL 49/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 49 OF 2007

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J U D G M E N T

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Introduction :

1.  In November 2005, Mr Wong, a Senior Engineer with the Highways Department, was charged with two charges of conspiracy to defraud, contrary to common law, and three charges of acting as an agent using a document with intent to deceive his principal, contrary to ss 9 (3) and 12 (1) of the Prevention of Bribery Ordinance. 

2.  The essence of the charges were what is commonly known as a private tenancy fraud, in which a public servant claims a rental allowance from the Government for the tenancy of a property in which he himself has an interest.

3.  On 14 November 2005, in the District Court, following a ruling in which formal video-recorded interviews, and a notebook record of interview, were found to be inadmissible, the prosecution offered no further evidence.  Mr Wong was acquitted of all charges.

4.  On 23 June 2006, the Director of Highways informed Mr Wong that it was alleged that he had misconducted himself in relation to the receipt of private tenancy allowance.  He was offered the opportunity, which he accepted, to explain why there should not be an inquiry under the Public Service (Administration) Order, (PSAO), and the Public Service (Disciplinary) Regulations (PSDR).

5.  Mr Wong’s explanation was not accepted, and on 7 March 2007, he was notified that a formal disciplinary inquiry under s 10 PSAO would be conducted.

6.  Mr Wong now brings judicial review proceedings seeking to stop the disciplinary inquiry.

The grounds for challenge:

7.  The challenge to the disciplinary inquiry is based on three grounds :

(1)	the bringing of the disciplinary inquiry offends against the principle of double jeopardy contained in Article 11 (6) of the Hong Kong Bill of Rights Ordinance Cap 383;
(2)	s 15 PSAO, restricting the punishment of a public servant on disciplinary proceedings if acquitted of a criminal charge is a bar to the disciplinary proceedings;
(3)	(i)	there was no lawful basis upon which the Chief Executive could delegate his powers in relation to the dismissal of a public officer;
	(ii)	there was no evidence that the Chief Executive had properly delegated his power to establish the inquiry committee;
	(iii)	there was no proper evidence that the person was appropriate authority had made the appointment of the inquiry committee
	(iv)	the appointment of the Inquiry Officers was not in accordance with the PSAO, in the that the Inquiry Officers appointed were not public servants who were senior to the officer who was the subject of the inquiry, contrary to reg. 6 (2) PSDR.

Preliminary point :

8.  Mr Mak took the preliminary point that the subject matter of the application is not one of public law, but is a matter of private law.  Consequently, he says that the decisions and steps complained of are not amenable to judicial review.

9.  The submission relies upon the decision of Keith J. in The Association of Expatriate Civil Servants of Hong Kong v Chief Executive [1998] 1 HKLR 615, and the decision of Hartmann J. in Cheung Chung Ngai Daniel v Hospital Authority, (unreported, HCAL 202/2002, 12 November 2004).

10.  The submission is probably correct. 

11.  But Mr Mak acknowledges that, not as a matter of public law, but of private law, Mr Wong would be entitled to bring proceedings by way of writ for breach of contract, and that the same issues would arise.  Mr Mak also acknowledged that it would be a futile waste of expense, if his submission were correct, to require Mr Wong to go back to square one and begin again, by way of writ, where the same issues would be argued.

12.  That must be right.  In the course of the hearing I counted no fewer than six persons, all apparently public servants, sitting in the court.  I assumed that each was, in some way, involved in giving instructions to Mr Mak.  To require Mr Wong to start again by way of a different procedure to raise precisely the same issues as are now before me, thereby further engaging the efforts of so many public servants to no proper advantage, would be quite wrong.

13.  Sensibly Mr Mak was content to allow the proceedings to go forward in order that the real issues may be determined.  I treat the point as abandoned, or if it is required to be pursued, that there is consent to treat the proceedings as though issued by writ, alleging breach of contract.

Does double jeopardy apply in disciplinary proceedings :

14.  The right of protection against double jeopardy is enshrined in law of Hong Kong.  Article 39 of the Basic Law provides, (where relevant) :

“	The provisions of the International Covenant on Civil and Political Rights ….. as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.”

Article 14 (7) of the International Covenant on Civil and Political Rights, (ICCPR), provides :

“	No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”

15.  These provisions are implemented through the laws of Hong Kong by way of Article 11 (6) Bill of Rights Ordinance Cap 383 :

“	No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong.”

16.  Thus, there can be no doubt at all that the principle of the protection of a resident of Hong Kong against double jeopardy is part of the law of Hong Kong.

17.  However, it is equally clear that this principle does not apply to employer/employee disciplinary proceedings.  That is simply because such disciplinary proceedings do not constitute part of the “law and penal procedure of Hong Kong”.  Disciplinary proceedings of this nature are an internal matter, in this case between employer and an employee.

18.  This conclusion was reached by A Cheung J in Tso Tak Keung, Eddy v Secretary for the Civil Service, (Unreported, HCAL 28/2005, 14 September 2006).  The learned judge adopted the reasoning of the New Zealand Court of Appeal in Re a Medical Practitioner [1958] NZLR 748.  Like A Cheung J, I have no doubt that the New Zealand case correctly states the law.

19.  The same conclusion has been reached in a number of English cases involving disciplinary proceedings, including Peter Ziderman v General Dental Council [1976] 1 WLR 330 PC, R v Statutory Committee of the Pharmaceutical Society of Great Britain, Ex p Pharmaceutical Society of Great Britain [1981] 1 WLR 886, and R v Police Complaints Board Ex p Madden [1983] 1 WLR 447.

20.  No argument was advanced by counsel for Mr Wong that I should depart from any of these well-established authorities.  The only argument made was that the provisions of the Basic Law and the Bill of Rights Ordinance relied upon were a part of the disciplinary proceedings.  There is no basis for such a conclusion. 

21.  I accordingly hold that Mr Wong cannot rely upon Article 11 (6) Bill of Rights Ordinance to prevent the disciplinary inquiry proceeding.

The effect of 15 PSAO :

22.  Under the PSAO a special provision is made restricting punishment of a public servant if he has been acquitted on criminal charges. Section 15 PSAO provides :

“

An officer acquitted of a criminal charge shall not be punished in respect of any charges upon which he has been acquitted, but he may nevertheless be punished on any other charges arising out of his conduct in the matter which do not raise substantially the same issues as those on which he has been acquitted and the appropriate proceedings may be taken for the purpose.”

23.  Counsel for Mr Wong argue that this provision is a complete bar to the disciplinary proceedings.

24.  The primary submission made by Mr Mak is that the disciplinary inquiry does not “raise substantially the same issues” as those upon which Mr Wong was acquitted in the criminal proceedings.

25.  It is accordingly necessary, before proceeding upon an analysis of s 15 PSAO, to set out both the charges faced by Mr Wong, in so far as they are relevant to these proceedings, and the disciplinary offence with which he is charged.   Counsel for Mr Wong did not rely upon the charge of conspiracy to defraud to contend that the disciplinary charges raised substantially the same issues as the disciplinary charge.  He confines his argument to the three specific charges made under the provisions of the Prevention of Bribery Ordinance.

26.  The particulars of the relevant criminal charges are :

“3rd Charge

Statement of Offence

Agent using a document with intent to deceive his principal, contrary to sections 9 (3) and 12 (1) of the Prevention of Bribery Ordinance, Cap 201.

WONG Kei-kwong, being an agent of the Hong Kong Government (“HKG”) namely an Engineer of the Highways Department on about the 5th day of June 1991, in Hong Kong, with intent to deceive his principal, used a document, namely an Application for Private Tenancy Allowance in relation to the leased accommodation at Block 5, 4/F, Unit A, Peridot Court, 17½ Miles, Castle Peak Road, Tuen Mun, (“the leased property”) in respect of which the HKG was interested and which contained a statement which was false or erroneous or defective in a material particular, namely that the said WONG Kei-kwong was eligible to claim and receive private tenancy allowance in respect of the leased property under the provisions of the Civil Service Regulations, and which to his knowledge was intended to mislead the HKG.

4th Charge

Statement of Offence

Agent using a document with intent to deceive his principal, contrary to sections 9 (3) and 12 (1) of the Prevention of Bribery Ordinance, Cap 201.

WONG Kei-kwong, being an agent of the Hong Kong Government (“HKG”) namely an Engineer of the Highways Department on about the 19th day of July 1993, in Hong Kong, with intent to deceive his principal, used a document, namely an Application for Private Tenancy Allowance in relation to the leased accommodation at Block 5, 4/F, Unit A, Peridot Court, 17½ Miles, Castle Peak Road, Tuen Mun, (“the leased property”) in respect of which the HKG was interested and which contained a statement which was false or erroneous or defective in a material particular, namely that the said WONG Kei-kwong was eligible to claim and receive private tenancy allowance in respect of the leased property under the provisions of the Civil Service Regulations, and which to his knowledge was intended to mislead the HKG.

5th Charge

Statement of Offence

Agent using a document with intent to deceive his principal, contrary to sections 9 (3) and 12 (1) of the Prevention of Bribery Ordinance, Cap 201.

WONG Kei-kwong, being an agent of the Hong Kong Government (“HKG”) namely an Engineer of the Highways Department on about the 26th day of June 1995, in Hong Kong, with intent to deceive his principal, used a document, namely and Application for Private Tenancy Allowance in relation to the least accommodation at Block 5, 4/F, Unit A, Peridot Court, 17½ Miles, Castle Peak Road, Tuen Mun, (“the leased property”) in respect of which the HKG was interested and which contained a statement which was false or erroneous or defective in a material particular, namely that the said WONG Kei-kwong was eligible to claim and receive private tenancy allowance in respect of the leased property under the provisions of the Civil Service Regulations, and which to his knowledge was intended to mislead the HKG.”

(The first and second charges related to a property at Baguio Villa, which was not the subject of the disciplinary charge.)

27.  The disciplinary charge is contained in a letter dated 7 March 2007, in which Mr Wong was notified that, in exercise of the authority delegated by the Chief Executive, the Principal Assistant Secretary for the Civil Service, decided that a formal disciplinary inquiry under s 10 PSAO should be conducted into alleged misconduct namely :

“

You, Mr WONG Lei-wong, misconducted yourself while you were employed as and Engineer/Senior Engineer in the highways Department in that you had improperly received the private tenancy allowance (PTA) between August 1991 and October 1995 in respect of the property at Unit A, 4/F Block 5, Peridot Court,17 ½ Miles, Castle Peak Road, Tuen Mun, in which you have a financial interest, in breach of CSR 852 (5).”

28.  The rule against double jeopardy may be viewed narrowly, or widely.  The narrow view is illustrated in Connelly v DPP [1964] 1 AC 1254, where the House of Lords found that for the rule to apply the offence with which the accused was charged must be identical to the offence for which he was previously acquitted or convicted.  Thus, the rule was held not to protect an accused from being tried for robbery, after having been previously acquitted of a murder committed in the course of the same robbery.

29.  There is a wider view, or further principle, that there should be no sequential trials for offences on an ascending scale of gravity.  Thus a person who has been previously convicted or acquitted of an offence may not be prosecuted for any more serious offence based on the same or substantially same facts, unless there are special circumstances such as the emergence of new evidence.  This principle arises from both Connelly, and R v Beedie [1998] QB 356.

30.  Mr Mak submits, and I accept, that s 15 PSAO, by using the words : “do not raise substantially the same issues” is dealing with the narrow view of the principle of double jeopardy. 

31.  The reference to “issues” can only mean the issues raised on the face of the criminal charge and the disciplinary complaint.  Consequently, although the facts may be substantially the same, or even identical, if the disciplinary charge faced is not substantially similar or identical to that faced in the criminal courts, in that the issues are substantially the same, then s 15 is no bar to the disciplinary proceedings continuing.

32.  The most significant element of the criminal charge faced by Mr Wong was that he must have used the documents with an intention to deceive.  Were that element not proved the prosecution would inevitably fail.  But the disciplinary charge faced by Mr Wong contains no such element.  It is sufficient that he must be proved to have received the private tenancy allowance “improperly”.  That he may have received it improperly does not require proof that he received it dishonestly.  It will be sufficient to establish that he received it “improperly”, irrespective of any intention Mr Wong had, if it is established that he received it in circumstances where he ought not to have received the PTA.  It is plainly improper to receive something that you ought not to receive, but it may not be dishonest.

33.  Further, each of the criminal charges faced by Mr Wong required proof beyond reasonable doubt that Mr Wong had used “a document” to achieve receipt of the PTA with the appropriate intent.  The disciplinary charge faced by Mr Wong does not require any proof at all that he had used the document to achieve the receipt of the PTA.  The evidence may well establish that a document was used to achieve the receipt of the PTA, but the disciplinary charge does not require proof that it was Mr Wong who used the document to achieve the payment.

34.  I am accordingly satisfied that the disciplinary charge faced by Mr Wong does not raise substantially the same issues as those faced by him on the criminal proceedings.  I accordingly hold that s 15 PSAO is not a bar to the disciplinary proceedings continuing.

35.  For the sake of completeness I add that Mr Mak contended that as the criminal proceedings had only reached the stage of dealing with the admissibility of the interviews, and the legal issues of Mr Wong’s dishonesty had not been tried and determined, s 15 could not be a bar to the proceedings. 

36.  Section 15 operates to bar subsequent disciplinary proceedings where a public servant has been acquitted of a criminal charge which raises substantially the same issues as the disciplinary charge.  Upon the prosecution offering no evidence in the criminal proceedings, Mr Wong was acquitted of the criminal charge.  It is entirely irrelevant as to the stage at which those proceedings had reached at the time the acquittal was entered.  Once entered, the acquittal was final, the expression used in Article 11 (6) Bill of Rights Ordinance.

37.  Mr Wong would be entitled to rely upon that acquittal should he face a subsequent disciplinary proceeding raising substantially the same issues as the criminal proceeding.  The issues raised by the disciplinary charge are not substantially the same as those in the criminal proceedings. 

38.  That argument made by Mr Mak must fail, as does the argument by counsel for Mr Wong.

Procedural points :

39.  Counsel for Mr Wong next took a number of points in relation to the formal procedure whereby the inquiry committee was established.

40.  First it is argued that the power contained in Article 48 (7) of the Basic Law enabling the Chief Executive to appoint or remove holders of public office at all levels, is non-delegable.

41.  Second, it is argued that there is no proper evidence that the Chief Executive has properly delegated his power to establish the inquiry committee.

42.  Third, it is argued that there is no proper evidence that the person with appropriate authority, (assuming a proper power to delegate), was the person who made the decision that there ought to be a disciplinary inquiry, and subsequently appointed the members of the inquiry committee to undertake the disciplinary inquiry.

43.  Fourth, he says that the two persons appointed to the inquiry committee do not meet the requirements of r. 6 (2) PSDR, as they do not fall within the definition of “public servants who are senior to the officer who was the subject of the inquiry”.

44.  Those advising Mr Wong fully appreciate that, with the exception of the first argument, each of these three latter complaints are capable of remedy.  If I should find that there has been any procedural error in the establishment of the inquiry committee, the Government is perfectly entitled to go back to the beginning and to properly carry out the steps required.  Consequently if any of these three points are successful, having found that in all other respects there is no bar to the disciplinary inquiry, it will still be open to the Government to proceed with its disciplinary proceedings against Mr Wong.

Proof of a power to delegate :

45.  As a matter of law, where a public servant purports to act upon a delegation, it will be presumed that the delegation is lawful, until proof of the contrary.  Consequently, in the normal course of a proceedings before the courts involving issues such as public service disciplinary tribunals or the like, where delegated authority has been used to establish a tribunal, it will not be necessary for evidence of the delegation to be produced.  This is so by virtue of the application of the maxim omnia presumuntur rite esse acta; see also, Judicial Review Handbook, Stoneham, 4^th Ed, para 42.1.3

46.  Where however, on the face of the application, or the affidavits in support, the validity of the exercise of delegated power is raised it will be appropriate for an affidavit to be filed exhibiting the instrument of delegation.

47.  In the present case the issue was raised in paragraphs 42 and 45 of the statement of grounds on which relief sought, sufficiently indirectly, that it was not apparent to those advising the Civil Service Branch.  In the circumstances, the 1^st Respondent, not having filed an affirmation exhibiting the appropriate documents, I heard argument on the matter and allowed the 1^st Respondent to file an appropriate affidavit, followed by an exchange of written submissions, limited to the delegation issues.

The powers under the Basic Law :

48.  The power of the Chief Executive to make executive orders in relation to the administration of the public service flows from Article 48 of the Basic Law.  That provides, where relevant :

“	The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions :
	(1)	to lead the government of the Region;
	(4)	to decide on government policies and to issue executive orders;
	(7)	to appoint or remove holders of public office in accordance with legal procedures;”

49.  Counsel for Mr Wong accepts that the PSAO, being an executive order, falls within the expression “legal procedures”, as that expression is used in Article 48 (7) Basic Law.

50.  The primary submission made by counsel for Mr Wong was that the powers so conferred and imposed on the Chief Executive were personal, and non-delegable.  It was contended that the position of the Chief Executive is only comparable to a Minister entrusted with statutory powers, people only to exercise power within the strict limitations of the statute.

51.  I reject the submission.  There is no restriction at all in the Basic Law on the powers contained in Article 48.  While I accept that it is inconceivable that the Chief Executive could delegate powers such as those contained in Article 48 (3), that of signing bills passed by the Legislative Council or that of signing a budget passed by the Legislative Council, it is perfectly conceivable that the Chief Executive should not have to be personally concerned in the appointment or removal of the holders of public office in a civil service containing thousands of officers.

52.  That that is so is made clear by the use of the words :

“	in accordance with legal procedures.”

The use of those words makes it abundantly clear that it is intended that proper procedures should be established for the appointment or removal of the holders of public office.  On the other hand the act of signing bills or budgets are plainly an individual act which ought to be undertaken by the Chief Executive personally.

53.  Just as the court found in AG v Chui Tat Cheong David & Ors  [1992] 2 HKLR 84, that the construction of a constitutional instrument, such as the Letters Patent, required a generous and purposive approach, which would include, when necessary, the implication of incidental powers, so in my view must be Basic Law be interpreted. 

54.  In particular, Fuad VP said, at p 101, in response to the submission that the Governor had no power to delegate, and personally must make all civil service appointments :

“	It seems to me unrealistic to expect that the Governor could effectively retain the responsibility for all appointments and dismissals in the entire civil service which the application of that principle requires unless it is to be a complete fiction.”

55.  The proposition is equally applicable in relation to the Chief Executive and the Basic Law.  A purposive approach to interpretation, including as it must a clear recognition of the fact that the Chief Executive need not be personally concerned in the appointment or dispersal of every single public officer, plainly leads necessarily to the implication of a power to make executive orders which include the delegation of the powers established by those executive orders.

56.  The argument made by counsel for Mr Wong is tantamount to saying that it is not open to the Legislative Council to pass legislation making provision for the delegation of powers contained within that legislation because there is nothing in Article 73 of the Basic Law permitting the delegation.  That simply could not be so.

57.  I am accordingly satisfied that there is nothing in the Basic Law to prohibit the Chief Executive from making an executive order in which he grants a power to himself, and then makes provision for the delegation of that power.  The first argument made fails.

The establishment of the power to delegate :

58.  The second argument made by counsel for Mr Wong was that there was no proper delegation of the power to appoint an inquiry committee.

59.  The disciplinary inquiry faced by Mr Wong is an inquiry established under s 10 (1) PSAO.  That provides :

“

If it is represented to the Chief Executive that an officer has been guilty of misconduct, and the Chief Executive is of the opinion that the misconduct alleged may be serious enough to warrant the dismissal of compulsory retirement of the officer, he may cause an inquiry to be made into the officer’s conduct in such manner as may be prescribed by regulations made by the Chief Executive under section 21 (2).”

60.  A power to delegate certain of the powers of the Chief Executive, to any public servant or other public officer, under the PSAO is contained in s 19, in the following terms :

“	(1)	Subject to subsection (2), the Chief Executive may delegate to any public servant or any other public officer any powers or duties, deferred or imposed on him by sections 3 and 9 to 18.
	(2)	The Chief Executive shall not delegate the power to make regulations under section 21 (2).”

61.  It is consequently completely clear, and beyond argument, that the power of the Chief Executive to cause an inquiry to be made under s 10 PSAO, is a power that may be delegated.

62.  Assuming a lawful act of delegation, (a matter that I will deal with later), once the decision is made to cause an inquiry to be made under s 10 PSAO, the next step is the establishment of the inquiry committee.

63.  The establishment of an inquiry committee is undertaken pursuant to r 6 of the Public Service (Disciplinary) Regulations, (PSDR), which regulations are made under s 21 of the PSAO.  That regulation provides as follows :

“	Inquiry under section 10 of the Order
	(1)	An inquiry ordered by the Chief Executive for the purpose of section 10 of the Order shall be conducted by an inquiry committee appointed by the Chief Executive.
	(2)	An inquiry committee appointed pursuant to subsection (1) shall consist of two or more public servants who are senior to the officer who was the subject of the inquiry.”

64.  It would seem at first sight that the power to appoint an inquiry committee is a power which is conferred upon the Chief Executive.

65.  The PSAO, while containing in s 19, power in the Chief Executive to delegate the powers and duties conferred or imposed upon him under certain specific sections of the PSAO, contains no authority to the Chief Executive to delegate any of the powers or duties conferred or imposed upon him by the PSDR.

66.  Usually, there must be a specific provision, such as s 19 PSAO, authorising the delegation.  That is especially so where the power delegated is contained in subsidiary legislation such as regulations.  In such a case the source of the power to delegate a power contained in regulations must usually be found in the primary legislation authorising the making of regulations.

67.  The rule against delegation, sometimes expressed in the form of the maxim, delegatus non potest delegare, is described in De Smith’s Judicial Review, 6^th Ed, Woolf & Ors, at para 5-138 in these terms :

“

A discretionary power must, in general, be exercised only by the public authority to which it has been committed.  It is a well-known principle of law that when a power has been conferred to a person in circumstances indicating that trust is being placed in his individual Judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another.  This principle has been applied on the law of agency, trusts and arbitration as well as in public law.”

68.  There is no specific power contained in the PSAO authorising the delegation of powers made under regulations made pursuant to authority of the PSAO.  However, careful regard must be had to the specific provisions of s 10 (1) PSAO.  The power to cause an inquiry to be made into an officer’s conduct, a power which may be delegated, is to cause the inquiry to be made :

“	… in such manner as may be prescribed by regulations made by the Chief Executive under s 21 (2).”

69.  By s 2A PSDR, (added by s 3 Public Service (Disciplinary) (Amendment) Regulations 2002, a specific provision was added to the PSDR enabling the Chief Executive to delegate certain of the powers and functions contained in the PSDR including, specifically, the power to institute disciplinary proceedings against a public officer pursuant to s 10 (1) PSAO.

70.  I am satisfied that the expression set out in para 68 above, enabling the Chief Executive to determine the “manner” in which an inquiry may be made, is sufficiently broad to include a power to delegate a power contained in the PSDR to appoint the members of the inquiry committee.

71.  I accordingly conclude that, subject to there being appropriate evidence of the act of delegation, the Chief Executive has the lawful power to delegate the power contained in the PSDR to cause a disciplinary inquiry to be established. 

72.  The second argument made must also fail.

The evidence of the fact of the delegation :

73.  I accept Mr Mak’s submission that the real point made by counsel for Mr Wong in respect of the delegation is that the documents exhibited in the affidavit of Kwok Wing On, (Mr Kwok), do not establish that there has been a proper act of delegation.

74.  In most cases an act of delegation by the holder of the statutory power, pursuant to a statutory authority to delegate, will be comprised in a formal document which sets out the power to be delegated, the authority to delegate the power, and the act of delegation, duly identifying the delegate, and signed by the holder of the statutory power.  Such a document would remove any doubt whatsoever as to the proper exercise of power.

75.  That procedure has not been followed in the present case.  I suspect that the course adopted was adopted because of the large number of delegations involved, which would thereby necessitate numerous formal documents and numerous signatures by the Chief Executive.

76.  Instead the affidavit of Mr Kwok demonstrates that by way of a “Loose Minute”, prepared by the Acting Principal Secretary for the Civil Service on 16 October 2002, and submitted to the Chief Executive, through the Secretary for the Civil Service, approval was sought from the Chief Executive as to certain delegations, including those at issue in these proceedings.  At the same time the Chief Executive authorised the making of three Public Service (Disciplinary) (Amendment) regulations 2000.

77.  The Loose Minute was initialled by the Secretary for the Civil Service on 16 October 2002.  It contained the following paragraph :

“

34.

We recommend that you sign on this minute to indicate your approval of all the delegation proposals and where necessary to give the fact to the delegations concerned.  To complete the formalities for the delegations relating to appointment and discipline matters, you are also invited to sign Schedule I, Schedule II and Schedule III to delegate the powers listed therein to the designate officers.”

78.  On 31 October 2002, the Personal Secretary to the Chief Executive endorsed the Loose Minute with the expression :

“	CE approved and signed the legal instruments.”

79.  Also exhibited to the affidavit of Mr Kwok, attached to the Loose Minute is the appropriate legal instrument, namely the Public Service (Disciplinary) (Amendment) Regulation 2002, containing the relevant delegation.  That document has been duly signed by the Chief Executive, and is dated 31 October 2002.

80.  Under the PSDR, as amended, the power to institute disciplinary proceedings against an officer pursuant to s 10 (1) PSAO is delegated to the Secretary for the Civil Service, or the Permanent Secretary for the Civil Service, the Deputy Secretary for the Civil Service, or the Principal Assistant Secretary for the Civil Service.

81.  Exhibited to the affidavit of Mr Kwok is a copy of a minute seeking the approval of “P(CD)”, an abbreviation for PAS(CD), the acronym for Principal Assistant Secretary for the Civil Service, to the institution of a formal disciplinary procedure under s 10 PSAO.  That minute has been duly endorsed and signed by PAS(CD), and is evidence that that officer made the decision to institute the disciplinary inquiry.

82.  That was a decision entirely within the scope of the delegated power, made by the duly authorised delegated officer.

83.  Under the PSDR, as amended, the power to appoint a disciplinary inquiry officer, and an inquiry committee, is delegated to the same four persons, and also the Senior Principal Executive Officer (Disciplinary Secretariat).

84.  Exhibited to the affidavit of Mr Kwok is a copy of the minute seeking the approval of “SPEO(DS)”, the acronym for the Senior Principal Executive Officer (disciplinary Secretariat), to the appointment of Mr Kelvin Chan and Ms Isabella Wong as Inquiry Officers.  Again, that minute has been duly endorsed approving the appointments, the endorsement in this case also recognising the delegation, and signed by the SPEO(DS).  The endorsement is evidence that that officer made the decision to institute the disciplinary inquiry. 

85.  That was a decision entirely within the scope of the delegated power,  made by the duly authorised delegated officer.

86.  In all the circumstances I am satisfied that not only did the Chief Executive have power to delegate the function of appointment of the inquiry committee, but that he has also duly exercised that power of delegation, and that the appropriate public officers have lawfully effected the establishment of the disciplinary inquiry and the appointment of the inquiry committee.

87.  The third argument mounted by counsel for Mr Wong, that the inquiry committee has not been lawfully established, must fail.

The composition of the inquiry committee :

88.  As set out above, an inquiry committee “shall consist of two or more public servants who are senior to the officer who was the subject of the inquiry.”

89.  Two points are taken for the applicant.  First it is said that neither of the members of the inquiry committee are public servants.  Second it is said that neither properly meet the description of persons who are “senior” to Mr Wong.

90.  Both the inquiry officers, Mr Chan and Mrs Wong are retired public servants.  Both were appointed to the position of “Inquiry Officer” on what are described as “non-public service contract terms”, to conduct enquiries into misconduct cases pursuant to the provisions of the PSAO and the PSDR.  The letters of appointment issued by the Civil Service Bureau of the Government Secretariat, the department of government responsible for public service disciplinary matters.

91.  Mr Chan’s letter of appointment informs him that he will be paid $2,300 per session, a session being a hearing conducted from 9 a.m. to 1 p.m., or from 2 p.m. to 6 p.m.  The letter records that his total payment would be subject to a maximum total of $23,000 in respect of the number of sessions conducted to complete the inquiry.  The letter contains the following sentence :

“	For the purpose of the inquiry, the rank of your appointment is comparable to a Senior Principal Executive Officer in the public service.”

92.  Mrs Wong’s letter was in identical terms save that she was to be paid $1,530 per session, with a maximum payment of $15,300, and who rank was described as being comparable to a Principal Executive Officer in the public service.

Are the committee members “public servants” :

93.  Regulation 6 (2) requires that the persons appointed to the inquiry committee be public servants.  The expression “public servant” is defined in the PSAO in the following terms :

“	…any person holding an office of emolument under the Government of HKSAR, whether the office is permanent or temporary, and serving in a government bureau or department.”

This definition closely parallels that of a “public officer” contained in the Interpretation and General Clauses Ordinance, Cap 1.

94.  It is immaterial that Mr Chan and Mrs Wong are employed on contracts which mean they do not form part of the public service.  The consequences of being employed by such contracts is simply that neither are entitled to benefits under the Civil Service Regulations, to which public servants may be entitled.  The contract does not in any way detract from the fact that upon appointment pursuant to that contract, they hold an “office”; that of inquiry committee member, and that they receive “emolument” in respect of that office.

95.  Both hold office, that of Inquiry Officer, and both are entitled to emolument from the Government of the HKSAR.   For the purposes of their appointment, both are serving in the Civil Service Bureau of the Government Secretary. 

96.  I have no doubt at all that they both fall within the definition of a “public servant”.

Are the committee members “senior” to the Applicant :

97.  The affidavit of Kwok Wing On asserts that prior to 2002, the job of Inquiry Officer was primarily taken by two Chief Executive Officers of the Civil Service Branch on permanent establishment, whose services were required to be applied to that particular task alone.  When they could not cope with the volume of the incoming caseload, or a disciplinary case involved an officer of the same or higher rank, officers of the appropriate rank from other departments would be appointed on and “as needs” basis. 

98.  For various reasons, which are not relevant to these proceedings, this system was not working satisfactorily and in early 2002, a scheme was devised whereby a small pool, (about 10), of retired civil servants considered suitable for the task were employed on non-public service contract terms for a specific period.  Under the scheme these persons are employed at a rank comparable to their last rank in government before retirement.  A pay scale was developed to reflect the fact that these persons were employed for specific sessions, usually of 3 1/2 working hours, and not on a full-time basis.

99.  I am satisfied however that the pay scale, and the fact that these persons are retired civil servants is simply irrelevant.  On the plain terms of their appointments they have been employed at a rank, which in the case of both appointments, is senior to that of Mr Wong.  It is entirely a matter for the Civil Service to designate the rank of a person employed on a non-public service contract.  The designation of the rank is a matter which, having regard to the part-time nature of the work involved, is entirely removed from the remuneration provided for in the non-public service contract.

100.  I see no reason whatsoever why the court should go behind the plain terms of the letter of appointment.  I am satisfied that the appointment is sufficient to establish the Inquiry Officers at a rank senior to the officer who is the subject of the inquiry.

101.  For these reasons the fourth argument made by counsel for Mr Wong must also fail.

Conclusion :

102.  Mr Wong’s complaints against the disciplinary inquiry established failed in all respects.  The application for judicial review is dismissed.

Costs :

103.  There will be an order nisi that Mr Wong must pay the costs of the proceedings, to be taxed on a party and party basis.