XCHRX LAU SHIU MING v. THE CORRECTIONAL SERVICES DEPARTMENT

HCMP 320/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 320 OF 2000

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R U L I N G

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1. The Defendant, the Correctional Services Department, seek to strike out the Originating Summons in these proceedings (HCMP No. 320/2000) filed by the Plaintiff on 8 January 2000 for abuse of process. Its submission is that the allegations of the Plaintiff are of breaches of public law by the Defendant and should therefore properly be brought before the court, not by way of originating summons, but by way of an application for judicial review under Order 53 of the Rules of the High Court.

2. The background to the dispute is this. The Plaintiff was an officer with the Correctional Services Department who was investigated by the ICAC in 1993. During the period of the investigation he was interdicted but when nothing came of that investigation he was reinstated on 27 May 1993. He was, however, subsequently charged and found guilty of a disciplinary offence in respect of the same matter under Prison Rules 239(g)(i) for carrying out a business transaction with a friend of a prisoner. His case was referred to the Governor for disposal and on 17 July 1996 the Secretary for the Civil Service directed that he be compulsorily retired. He challenged the decision compulsory to retire him by way of judicial review. The judicial review proceedings were settled by agreement and he was reinstated on 23 July 1996. The Commissioner of Correctional Services then chose to pursue fresh punishment in respect of the disciplinary offence of which he had been found guilty. On 7 April 1997 the Commissioner interdicted the Plaintiff from duty under Section 20C of the Prisons Ordinance Cap. 234 with effect from 23 July 1996 and ordered that he should only receive 75% of his emolument during the period of his interdiction. On 2 July 1997, the Plaintiff was informed that he would be compulsory retired from the service from 4 September 1997. On 8 September 1997 the Commissioner directed that all portions of the Plaintiff's salary that had been withheld during the period of his interdiction be forfeited. It should be noted that by virtue of Clause 3.10 of the procedural manual on discipline "if an officer is awarded a punishment of ..... compulsory retirement the salary withheld from him will be forfeited". It was, therefore, an inevitable result of the procedural manual then in force that the Commissioner should order that the salary withheld from him be forfeited.

3. In the Originating Summons now before the court the Plaintiff seeks the determination of the court on the following questions and the following relief:

1. that whether the interdiction from duty imposed by the Defendant on the Plaintiff on 7 April 1997, purportedly under s. 20C of the Prisons Ordinance or otherwise, with effect from 23 July 1996 to 4 September 1997, was null and void;

2. that whether the deduction of 25% of the Plaintiff's emoluments of his office from the Correctional Services Department during the said period of interdiction, namely from 23 July 1996 to 4 September 1997, was null and void;

3. that whether the Defendant should repay the Plaintiff a sum of $141,065.30 being 25% of the Plaintiff's emoluments of his office from the Correctional Services Department, which has been wrongfully withheld by the Defendant;

4. that whether the Defendant should pay the Plaintiff interest on the said sum of $141,065.30 at such rates and for such period as this Honourable Court deems fit in accordance with Section 48 of the High Court Ordinance Chapter 4;

5. that provision may be made for the costs this action; and

6. further or other relief.

4. The Defendant submits that what the originating summons and the supporting affirmation allege is simply a breach of the public law rights of the Plaintiff. The Defendant relies upon the words of Lord Diplock in O'Reilly v. Mackman 1983 2 AC 237 when he said

"It would in my view as a general rule be contrary to public policy and as such an abuse of the process of the court to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled under public law to proceed by way of ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities".

5. The Defendant alleges that the Plaintiff has brought these proceedings by way of originating summons to avoid the need to apply for the leave of the court to bring proceedings for judicial review under Order 53, particularly in the light of the requirement under Order 53 rule 4 that "leave to apply for judicial review shall be made promptly and in any event within 3 months from the date when the grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made." In this case the Originating Summons was not filed until 18 January 2000 over 2 1/2 years after the decision was made on 7 April 1997 retrospectively to interdict the Plaintiff from the 23 July 1996.

6. Lord Diplock accepted that there would be exceptions to the general rule he described, and he referred particularly to where the alleged breach of a public law right arises as a collateral issue in a claim for infringement of a right of the Plaintiff arising under private law.

7. Mr Chan for the Defendant has argued that the essence of the Plaintiff's claim is for his remuneration, a private law right. He has argued that while questions of punishment for breach of Prison Rules and interdiction pending the conclusion of proceedings may be public law matters, the question of forfeiture of salary withheld during interdiction is a matter of private law. He also raised a question as to the basis of the interdiction and forfeiture in 1997 when there had been no earlier interdiction following the reinstatement of the Plaintiff in 1993. He argues that the public law question in this case are collateral to the Plaintiff's claims for determination of his private law rights. Alternatively that only those parts of the relief in the Originating Summons that are public law issues should be struck out.

8. Mr Chan in particular drew my attention to the case of Roy v Kensington and Chelsea FPC 1992 1 AC 624, in which Dr Roy was permitted to pursue his private law right by ordinary action notwithstanding that the proceedings would involve challenge to a public law decision.

9. In that case, however, unlike this case, Dr Roy's claim was expressly formulated as a claim for breach of contract in the Statement of Claim. Moreover in the judgments it is apparent that the court was heavily influenced by the fact that Dr Roy's private law rights dominated the proceedings. Lord Lowy expressly said that although Dr Roy sought "to enforce a public law duty his private law rights dominate the proceedings". Lord Bridge stated that the principle to be applied was as follows: "It is appropriate that an issue which depends exclusively on the existence of a purely public law right should be determined in judicial review proceedings and not otherwise. But where a litigant asserts his entitlement to a subsisting right in private law whether by way of claim or defence the circumstances that the existence and extent of the private right asserted may incidentally involve the examination of a public law issue cannot prevent the litigant from seeking to establish his right by action commenced by writ or originating summons".

10. Looking at the relief claimed in these proceedings it is readily apparent that the essence of the Plaintiff's claim is the alleged invalidity of the decision on 7 April 1997 to interdict him retrospectively from 23 July 1996. From that decision flows the withholding of his salary and from that the forfeiture of the amount withheld. The validity of that decision is not in reality collateral to the main issue between the parties. It is the basis of the Plaintiff's case and the central issue to be decided. This is not a case like that of Roy v. Kensington and Chelsa FPC where the private rights of the Plaintiff dominate the proceedings and where the public law issue is merely incidental.

11. Even other issues that have been raised in argument and have been said to relate to the private rights of the Plaintiff in relation to the 25% of his salary forfeited - such as the validity of the decision to interdict him in 1997 when he had not been interdicted after his reinstatement in 1993 and the validity of Clause 3.10 of the procedural manual on discipline which provided for the automatic forfeiture of salary withheld during interdiction if an officer is awarded the punishment of compulsory retirement - are in my view issues of public law.

12. While the determination of the public law issues in this case may have financial consequences to the Plaintiff they nonetheless remain public law issues.

13. I see no reason therefore to depart from the general rule expounded by Lord Diplock in O'Reilly v. Mackman.

14. I strike out Originating Summons HCMP 320/2000 taken out by the Plaintiff and filed on 18 January 2000 for abuse of process.

15. I make an order that unless either party makes application to be heard on the question of costs within 14 days of today, the Defendant's costs in these proceedings be paid by the Plaintiff.