TANG MEI LING JENNY v. THE COMMISSIONER OF POLICE

cacv 357/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 357 of 2005

(on appeal from HCAL NO. 85 of 2004)

______________________

J U D G M E N T

______________________

Hon Rogers VP:

1.  This is an appeal from a judgment of Hartmann J given on 7 September 2005.  The matter before the judge was an application for judicial review.  The order sought by the applicant was that the decision of the Commissioner of Police dated 31 March 2004 whereby the applicant was compulsorily retired with effect from the following day with deferred benefits under section 10 of the Public Service (Administration) Order (“the Order”) be quashed.  Various declarations were also sought.  The first was that the applicant had suffered a breach of natural justice by not being given an opportunity to make representations as to why to recommendations in memoranda dated 12 and 17 February 2004 for her compulsory retirement should not be followed.  There was also a declaration sought that the decision was ultra vires having taken various matters into account and not having taken into account what were said to be relevant matters.

2.  The judge dismissed the application, although he recognized that there had been procedural irregularity.  He held that the irregularity caused some unfairness to the applicant although not an unfairness that demanded that the Commissioner reconsider his decision.  In those circumstances the judge made no order as to costs.  On this appeal, unlike in the court below, the applicant was unrepresented.  At the conclusion of the hearing, this court reserved its decision which we now give.

Background

3.  The applicant joined the Hong Kong Government in 1988 as a personal secretary Grade II.  Whilst working in the Western Division of the police force she was given two written warnings.  In June 1999, the applicant was given the first written warning about her lack of punctuality and about her obliterating a record of her late attendance.  It was stated on the written warning that it would be disregarded for promotion and appointment purposes after a lapse of one year, subject to a satisfactory standard of conduct being achieved by the applicant during that year.  In October 2001 the applicant was given a further written warning which commenced:

“Despite being advised repeated (sic) by senior officers of the job requirement to be punctual on duty, you are found to be late for work on 29 occasions out of your 90 working days, during the period 2001-06-01 and 2001-10-31.”

4.  Again, it was stated that the warning would lapse and be disregarded for promotion and appointment purposes after one year.

5.  The applicant was subsequently transferred to the Small Boat Division at the Government Dockyard on Stonecutter’s Island.  She commenced duty there on 4 March 2002.  In March 2002 a civilian attendance book was instituted at the Small Boat Division which had to be signed by all civilian staff upon arrival and departure.

6.  There were apparently at least two occasions between March and 5 July 2002 when the applicant was advised to be punctual for her work.  On 10 and 11 July 2002 the applicant was again late for work but entered the times for her arrival in the attendance book at approximately half an hour earlier than it was.  That matter came to the attention of her immediate superiors and she was given another formal warning on 11 July 2002 which were read:

“Ms TANG has previously been verbally advised about her time keeping.  She is now advised again that she must comply with her duty hours.  She is advised that the making of false entries casts serious doubts upon her integrity and suitability to remain in post and that any further occurrences within the period of validity of this written warning will result in formal disciplinary action being instituted.”

7.  The letter of 11 July 2002 concluded with a statement that any further misconduct which warranted the issue of either an oral or written warning within one year from the date of that letter would be considered for formal disciplinary proceedings.

8.  The applicant responded on 24 July 2002.  The fact that she had been late was admitted but it was pointed out that she had worked many hours of unpaid overtime and it was also said that the suggestion that she had spent 30 minutes in the female toilet was exaggerated.  The letter stated that she usually spent about 20 minutes there, which would include time spent washing-up cups.  It is fair to say that the applicant commenced the letter by saying “Punctuality I say is not of prime importance in the office of Small Boat Division as the staff there are allowed to start work at different hours.”

9.  Following the events in early July 2002, the applicant’s superior requested the guards at the establishment where they worked to monitor the time of arrival of the applicant.

10.  There was a further exchange of correspondence in December 2002.  On 12 December the applicant was informed that as a result of continuing misconduct the Commissioner was considering an expanded enquiry.  That letter indicated that the applicant had been late on 66 occasions totalling 650 minutes between 12 July and 18 November 2002.  The applicant took issue with those records although admitting that she had been late on occasions.  She complained that she was being singled out for unfair treatment as a result of the surveillance of her arrival times.

11.  On 9 April 2003 the applicant was informed that there would be an inquiry under section 10 of the Order.  That section provides for an inquiry to be held if the misconduct alleged is considered to be serious enough to warrant dismissal or compulsory retirement.  The inquiry was held in May 2003 and the Inquiry Committee published its report on 27 May 2003.  The applicant had admitted that she had been late on 49 occasions but the Committee held that she had also been late on a further 17 occasions.  In respect of the false entries in the attendance book, again the applicant admitted those on the 10 and 11 July 2002 were wrong, but the Committee held that that she had also made false entries on 15 other occasions.  On 5 December 2003 the applicant was informed as to the Committee’s findings but also that the Committee’s findings in respect of the occasions not admitted by the applicant were set aside.  The letter also stated:

“Having regard to the nature and gravity of your proven misconduct, the punishment under consideration may result in your removal from the service.”

12.  The applicant wrote submissions in mitigation on 29 December 2003.  Amongst other things those included a reference to the unpaid overtime and the amount of work which the applicant undertook.  The applicant stated her clear intention not to attend work late in the future.  The letter concluded in paragraph 19:

“I hope the Chairman will forgive me and give me a chance that this time so that I may continue to serve the Hong Kong Government and the People of Hong Kong.”

13.  On 12 February 2004 a memorandum was sent from the Secretariat on Civil Service Discipline to the Commissioner of Police in respect of the punishment to be accorded to the applicant.  The memorandum concluded with a recommendation that she be removed by compulsory retirement.  Attached to the memorandum was a note in respect of previous cases, two of which had resulted in compulsory retirement and two of which had resulted in severe reprimands and other penalties.

14.  The applicant was not given a chance to comment on that memorandum and the judge considered the matter carefully.  He came to the conclusion that the applicant should have been given a chance to comment on it but that the applicant had not suffered any substantial prejudice and hence he refused the grant of any relief on that ground.  The judge then went on to consider whether the applicant had made out a case that the Commissioner had failed to take into account her representations and came to the conclusion that there was no reason to consider that the Commissioner in discharging his executive responsibility under the Order, had ignored the applicant’s representations.  As regards the applicant’s complaint that she had been singled out, the judge was not satisfied that there was any evidence that others had been persistently late as had the applicant and yet been exempted from the discipline.  In respect of the complaint that the sentence imposed was arbitrary and one that no reasonable decision maker could have made, the judge held that it was a decision which was plainly open to the Commissioner to make.

This appeal

15.  On this appeal the applicant took one point which had not been taken in the court below namely an argument that the decision that she should be compulsorily retired had been predetermined.  In support of that argument, the applicant relied upon a letter dated 20 November 2003 from the Civil Service Bureau indicating that the view had been formed that it was desirable in the public interest that the applicant should retire under the provisions of section 12 of the Order.  The applicant was asked to respond within 14 days of that letter.  This matter was raised in an affirmation made by the applicant on 5 August 2005 and the allegations were answered in an affirmation of Liaw Lee Wah, Ida Richthofen dated 26 August 2005.  When the hearing commenced before the judge an application was made and granted for leave to file an amended notice of application for leave to apply for judicial review but this point was not raised in that application.  It would, therefore, seem that there was a conscious decision, having seen the respondent’s evidence, not to pursue the point.  Furthermore, the matter was not raised in the notice of appeal.  In any event, I consider that the matter has no substance.  The contents of the letter of 20 November 2003 are self-explanatory.  The letter relates to the applicant’s work; it does not relate to the matters in question in the section 10 proceedings.  Furthermore, it would appear that the two decisions are taken by separate authorities.  The section 10 proceedings being a decision of the Commissioner and the section 12 proceedings being a decision of the Secretary for the Civil Service.

16.  The applicant also sought to raise the question that the two written warnings in 1999 and 2001 were informal and had been spent.  But, as was pointed out in the course of argument, although the warnings had expired for purposes of promotion and appointment, their effect as warnings and the fact that the applicant had been given warnings as to her punctuality remained.

17.  The applicant then took a number of points which were, in effect, all directed to the argument that the punishment imposed was unreasonable in the circumstances.  The points made by the applicant were again dealt with by the judge below but dwelt on matters such as the fact that the applicant felt she had been persecuted and singled out as part of a course to force her into retirement.  She felt aggrieved that it was said that she had been unremorseful and, in respect of the allegations which were made as to her lateness, they did not take account of her willingness to undertake unpaid overtime, at times at inconvenient and unsocial hours, and the difficulties posed by the location of Stonecutter’s Island.  It can only be said that although the penalty imposed on the applicant was severe, it cannot be said that it was beyond the scope of penalties which could be imposed in the circumstances.  Given the history of the matter, including the history of the lateness, the warnings and the wrong entries of the time, this was not something in respect of which this court could interfere.

18.  The applicant’s argument that she had been left in the dark and was unaware of the seriousness of the matter both at the inception in August 2002 and after she had been informed of the result of the enquiry and asked to mitigate, unfortunately fails.  The letters to her were clear: the matter was being taken seriously and throughout it was made clear that it might result in the applicant’s retirement.  Indeed, that must have been evident from the fact that section 10 proceedings had been instituted.

19.  In the circumstances I see no alternative but to dismiss this appeal.  Whereas the judge below was disposed to make an order that there should be no order as to costs, in this court I consider that the an order nisi of costs in favour of the respondent would have to be made.

Hon Le Pichon JA:

20.  I agree.

Hon Cheung JA:

21.  I agree.