RE DAVID YEUNG FUK-KWONG

1988 M.P. No. 1662

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. Pursuant to leave granted by Mortimer J., Counsel for Mr David Yeung Fun-kwong moves this Court for judicial review of a decision taken by the Chairman of the Tsuen Wan District Board on the 28th August 1988.

2. Mr Yeung is a solicitor. In addition, he served the public as a Permanent Magistrate on a temporary basis in mid 1987 and mid 1988. Mr Yeung was elected a member of the Tsuen Wan District Board on the 10th March 1988 for a three-year term commencing from 1st April 1988. For a great many years, the law seeks to regulate the activities of politicians. Mr Yeung claims that the law invoked against him by the Chairman of the Tsuen Wan District Board has no application to his situation. That is, in broad terms, the background against which the decision of the Chairman is sought to be tested. Consequential relief is asked for.

3. Mr Yeung is and has at all material times been practising under the firm name of David F.K. Yeung & Co., a sole proprietorship. He was appointed a Permanent Magistrate on a temporary basis from the 21st April to 19th June, 14th August and 26th August, all in 1987. He was again appointed a Permanent Magistrate on a temporary basis for the period from 14th March to 7th May 1988. No restriction was placed on his professional practice as a solicitor. For his appointment, he received $2,000 for each day of sitting.

4. A Permanent Magistrate appointed on a temporary basis has been described by the Law Society as well as in the Departmental Appropriations under the Annual Estimates attached to the Appropriations Bill as a "Temporary Magistrate". It is agreed on all hands that in this territory the law creates only Permanent Magistrates, Special Magistrates and Marine Magistrates. There is no legislative source for the term "Temporary Magistrate". In whatever general way his appointment was at times described, Mr Yeung had accepted one of a Permanent Magistrate under warrant and was gazetted as such under the Magistrates Ordinance. The $2,000 for each day's sitting was paid out by the Registrar of the Supreme Court as an honorarium. In the Departmental Appropriations under the Annual Estimates attached to the Appropriations Bill, it is classified as "Hire of service and professional fees" under the heading of "Departmental Expenses". However it is termed or allocated for administrative or accounting purposes, the daily rate of $2,000 will come out of the general revenue of the Hong Kong Government.

5. On the 10th March 1988, Mr Yeung was elected a member of the Tusen Wan District Board for a term of office commencing from 1st April 1988. It was to be for a period of three years. On the 23rd August 1988, the Chairman of the Tsuen Wan District Board, on legal advice, informed Mr Yeung that as he had held the public office of a Permanent Magistrate, from the commencement of his term of office on the 1st April he had become disqualified in his capacity of an elected Member to the Tsuen Wan District Board under section 19(1)(a) of the Electoral Provisions Ordinance. Mr Yeung was further informed that in accordance with section 14(a)(i) of the District Boards Ordinance, his office on the Board had become vacant and that the Chairman was obliged to give notice of such a vacancy in the Gazette. The Chairman of the Tsuen Wan District Board concluded that a by-election would be held in due course.

6. On the 26th August 1988, vacancy of Mr Yeung's office as a Member of the Tsuen Wan District Board as from the 1st April was gazetted. Mr Yeung caused to be filed his Notice of Application for leave to apply for judicial review of the Chairman's decision on the 31st August. Leave was granted on the 5th September. No stay of the Chairman's decision was applied for or granted. In the meantime, Mr Yeung enrolled as a candidate for the by-election and was duly e returned re-elected on the 6th October 1988. It is to be expected that presently Mr Yeung holds himself out to be and function as a member returned re-elected to the Tusen Wan District Board in the by-election. I have had and still have misgivings as to whether there still exists any substratum of dispute between Mr Yeung and the Chairman of the Tsuen Wan District Board. Indeed in the written submission of Mr Tang made on behalf of Mr Yeung, it is stated that the result of these proceedings "may be academic". The respondent takes no such preliminary point. I proceed, therefore, on the basis that there remains some live issue to be resolved.

7. What falls to be decided is a question of pure construction of section 19(1)(a) of the Electoral  Provisions Ordinance, the relevant portion of which reads as follows :

 

"A person shall be disqualified for ...... holding office as member if he holds any public office (other than as member of an auxiliary force)......"

8. Once a disqualification ensues, it would be encumbent upon the Chairman of the Tsuen Wan District Board to gazette a notice of the vacancy of an Elected Member's office in accordance with section 14(a)(i) of the District Boards Ordinance.

9. "Public office", as defined in section 3 of the Interpretation and General Clauses Ordinance, means "any office of an employment, the holding or discharging of which by a person would constitute that person a public officer". A "public officer" is defined by the same section as meaning "any person holding an office of emolument under the Crown in the right of the Government of Hong Kong, whether such office be permanent or temporary.”

10. Neither duration nor contractual relationship would have any bearing on the interpretation of the above sections : I do not think it can be doubted that the nature of a judicial officer's post and his duties are not, in essence, affected by any contract, if there be one; they are the attributes of and incidents attached to his position. The relevance of a permanent or temporary appointment is removed. However, in the application of these definitions to Mr Yeung, it should be remembered that the post of a permanent magistrate itself would not cease to exist when the person temporarily or permanently appointed concludes his work.

11. Mr Yeung was appointed under section 5 of the Magistrates Ordinance. Section 5 empowers the Governor to appoint, from time to time, by warrant permanent magistrates "as are in his opinion required for the efficient administration of justice in" Hong Kong. This power of appointment was delegated to and exercised by the Chief Justice in the case of Mr Yeung. See section 63(1) and (3) of the Interpretation and General Clauses Ordinance. Clause XIV of the Letters Patent is the enabling provision whereby "the Governor may constitute and appoint such Judges, Justices of Peace and other public officers as may be lawfully appointed, all of whom shall, unless otherwise provided by law, hold their offices during Our pleasure".  (Underlining is mine). Evidently, Mr Yeung was appointed to hold an office.

12. Mr Yeung's appointment was by warrant in terms identical with those for the appointment of any Permanent Magistrate except for the stipulated period. As an appointed Permanent Magistrate, Mr Yeung exercised the same jurisdiction and powers and enjoyed the same privileges accorded to any Permanent Magistrate by the Magistrates Ordinance. My attention was drawn to section 5(4) of the Magistrates Ordinance which makes specific reference to the "office" of a Magistrate :

 

"5(4) Any Magistrate appointed under this Section shall be a Justice of by Peace virtual of his office". (Emphasis mine).

13. Indeed under section 17 of the Oaths & Declarations Ordinance, Mr Yeung was obliged to and did take the judicial oath in the following terms :

 

"I, ..., swear that I will well and truely served ... in the office of ... and in any other judicial office ... to which I may be appointed ..." (Emphasis added).

14. The relevant definition of the word "office" in the Oxford English Dictionary is : "A position or place to which certain duties are attached, esp. one of a more or less public character; a position of truct, authority, or service under constituted authority; a place in administration of government, the public service, the direction of a corporation, company, society, etc." I would respectfully adopt Lord Bridge's "three limbs" of the ordinary meaning of the word "office" in his dissenting speech in Edwards v. Clinch [1982] A.C. 845 at p. 882 Letter A : Mr. Yeung occupied "a position to which duties of a public character are attached. He (was) in a position of authority. He (held) a place in the administration of government (or public service)". Mr Yeung, on his appointment, was filling a substantive position of a Permanent Magistrate. Many had been appointed before him, and many more will be appointed to that post in the future. The post of a Permanent Magistrate has an existence of its own, independent of the person who fills it. In this sense, the position to which Mr Yeung was appointed never lapses but enjoys degree of separate subsistence from the appointee, a particular feature in the dictionary content of the word "office".

15. So analysed, Mr Yeung did hold an office.

16. A solicitor is a professional man. Being a professional man qualified Mr Yeung to be selected for appointment, but acting as an appointed Permanent Magistrate was not exercising the profession of a solicitor, personal to himself until the completion of a specific task. The office of a Permanent Magistrate which he held on his appointment is decidedly a public office : it is one created by law to discharge duties in the public domain; the appointment is formally made and officially gazetted. Hence, Mr Yeung held a public office. Thus, construed independently of the statutory definitions "public office" and "public officer", Mr Yeung was holding a public office within the meaning of section 19(1)(a) of the Electoral Provisions Ordinance.

17. However, "public office" is statutorily defined by the Interpretation and General Clauses Ordinance as an office held by a public officer, and "public officer" is in turn defined as meaning any person holding an office of emolument under the Crown in the right of the Government of Hong Kong. The definition of "emolument" as given in the Oxford English Dictionary is : "Profit or gain arising from station, office or employment; dues, remuneration, salaries." Mr Yeung's $2,000 per day was a profit or gain from his office as a Permanent Magistrate. Such payment came from the general revenue of the Hong Kong Government.  Mr Yeung's office as a Permanent Magistrate on a temporary basis must therefore be "an office of emolument under the Crown in the right of the Government of Hong Kong". Examined in conjunction with these definition sections, Mr Yeung also fell within the category of a holder of a public office.

18. It was pressed upon me that these proceedings involved wholly a question of construction. Decided cases, those on tax in particular, could hardly advance the case for the applicant.

19. Save for the reasoning developed from the word "office" by Lord Lowry (pp. 870 & 871 and p. 876)and Lord Bridge's reliance on the same word (pp. 881 & 882) in Edwards v. Chinch ante., I am unable to derive much assistance from that decision. After all, at p. 860 Letter G Lord Wilberforce reminded us that "many words of ordinary meaning acquire a signification coloured over the years by legal construction in a technical context such that return to the pure source of common parlance is no longer possible". He concluded that "office" in Edwards v. Clinch "is such a word". At p. 866 Letter F, Lord Salmon said of the word "office" in the context of revenue cases thus : "I cannot agree that the dictionary meaning of the word 'office' can or was intended to be of any real help in construing the word 'office' in Schedule E (to the Income and Corporation Taxes Act 1970), particularly having regard to the authorities to which I have referred".  At p. 878 Letter B, Lord Lowry lamented : "It is tempting to seek a logical solution, but this is not always reliable in tax cases."

20. It was submitted on behalf of Mr Yeung that his appointment as a "Temporary Magistrate" was not one of or one to fill an established post and that it was only an ad hoc appointment limited to the tenure of one man for a single task. Counsel leaned heavily on the term "an office of emolument" in the definition of a "public officer" in Section 3 of the Interpretation and General Clauses Ordinance. It was argued that the holder of an office could not become a public officer unless his remuneration came from funds allocated to an established post : put in another way, only a person appointed to an established post and paid as such is a holder of an office of emolument, thus making him a public officer. Mr Yeung, so counsel's argument proceeded, was not appointed to an established post nor was his appointment one to fill a temporary vacant established post by reason of (1) that his appointment was personal and entailed no continuance or permanancy and (2) that he was not paid as an incumbent of an established post but was given a mere honorarium from "Departmental Expenses".

21. The Acting Registrar of the Supreme Court categorized the practice of appointing "temporary magistrates"as one to supplement "the normal establishment of Permanent Magistrates." For the reasons I have given I don not subscribe to the view canvassed by Counsel.

22. The fact that Mr Yeung was not entitled contractually to lay claim to his honorarium takes the matter no further when, as I have earlier endeavoured to explain, the same was met from the Government general revenue.

23. It was also submitted that a section 5 appointment was made exclusively for the purpose of conferring on Mr Yeung the jurisdiction of a Permanent Magistrate. Obviously an appointment under section 5 of the Magistrates Ordinance cannot be so narrowly restricted.

24. The application for judicial review cannot therefore be acceded to. I dismiss it with an order nisi for costs to the respondent.