MUTUAL LUCK INVESTMENT LTD v. ATTORNEY GENERAL

HEADNOTE

[(1) The fact that a Justice of Appeal performs his duties independently of Government control does not prevent him from holding his office "under the Crown", and therefore from being a "public officer" within the meaning of section 3 of the Interpretation and General Clauses Ordinance (Cap. 1).

(2) Although the Town Planning Ordinance (Cap. 131) excludes "public officers" from being members of the Appeal Board panel, a Justice of Appeal is not a "public officer" for this purpose because the Town Planning Ordinance cannot have been intended to exclude persons whose duties in their offices under the Crown are performed independently of Government control and who are pre-eminently qualified to participate in a quasi-judicial process.]

HCMP No. 2065 of 1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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INTRODUCTION

1. Mr. Henry Litton Q.C. used to be a distinguished lawyer in private practice. He was also active in the environmental field. He was, for example, a member of the Board of Governers of Friends of the Earth, an environmental pressure group which has actively campaigned on environmental issues in Hong Kong. His legal expertise combined with his concern for the environment made him, in the view of the Governor, suitable for appointment as the first chairman of the Appeal Board panel under the Town Planning Ordinance (Cap. 131) ("the TPO").

2. The Applicant, Mutual Luck Investment Ltd., had applied on a number of occasions to the Town Planning Board ("the Board") for permission for a proposed residential development near the Mai Po Nature Reserve. Its applications had been consistently refused. When the Board reviewed its decision on the latest application, it again refused to grant the permission sought. The Applicant then lodged an appeal under section 17B of the TPO.

3. It was here that matters took an interesting turn. The Applicant was informed by the secretary of the Appeal Board panel that the appeal would be heard by a panel of the Appeal Board chaired by the chairman of the Appeal Board panel. The Applicant took the view that the chairman might not be seen to be as impartial as he would like to be. It invited the chairman to withdraw from the appeal. In October 1994, he refused to do so. The Applicant then applied for judicial review of his refusal. The application was heard by Leonard J., and in May 1995 the application was dismissed.

4. However, as Leonard J. was about to hear the application, the Applicant discovered another basis on which the chairman's participation in the appeal might be challenged. Mr. Litton had by then become Mr. Justice Litton : he had, in September 1992, become a Justice of Appeal, and he is now one of the Vice-Presidents of the Court of Appeal. The Applicant decided to take the point that a Justice of Appeal is disqualified from being on the panel of persons appointed to sit as members of an Appeal Board to hear appeals under section 17B of the TPO. It now applies, with the leave of Leonard J., for judicial review of the "acting" by Mr. Justice Litton in the office of chairman of the Appeal Board panel. The nature of the challenge is expressed in that way for two reasons:

(i) It is now too late to challenge the decision of the deputy to the Governor announced on 19th November 1993 to appoint Mr. Justice Litton as chairman of the Appeal Board panel for a further two years.

(ii) The principal remedy which is sought is an injunction under section 21J(1)(a) of the Supreme Court Ordinance (Cap. 4) to restrain Mr. Justice Litton from continuing to act in the office of chairman of the Appeal Board panel.

THE STATUTORY FRAMEWORK

5. The primary statutory provision is section 17A(2) of the TPO. It provides:

"The Governor shall not appoint ... a public officer to the Appeal Board panel".

The Applicant argues that a Justice of Appeal is a public officer within the meaning of section 17A(2). However, the words "public officer" are not defined in the TPO. The absence of any definition triggers the operation of the Interpretation and General Clauses Ordinance (Cap. 1) ("the IGCO"). Section 3 of the IGCO defines the words "public officer" as meaning

"any person holding an office of emolument under the Crown in right of the Government of Hong Kong, whether such office be permanent or temporary."

However, the definition in section 3 does not apply for all purposes. The extent to which it applies is set out in section 2(1) of the IGCO :

"Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument, the provisions of this Ordinance shall apply to this Ordinance and to any other Ordinance in force ..."

6. In the light of these statutory provisions, there are two questions which I must decide:

(i) Is a Justice of Appeal a public officer within the meaning of section 3 of the IGCO?

(ii) If so, has the inclusion of a Justice of Appeal in the words "public officer" in section 17A(2) of the TPO been displaced by any contrary intention appearing either from the IGCO or from the context of the TPO?

THE STATUS OF A JUSTICE OF APPEAL

7. In common with other judges of the Supreme Court, a Justice of Appeal is appointed by letters patent under the public seal by the Governor. He may be removed from office only for inability to discharge the functions of his office or for misbehaviour, and then only in accordance with the provisions of the Letters Patent. The emoluments of his office are paid out of the public revenue. This much is apparent from section 6(1) of the Supreme Court Ordinance, Art. XV1A of the Letters Patent, and the annual Appropriation Ordinances.

8. Sir John Swaine Q.C. for the Applicant drew my attention to various other provisions of the Letters Patent, the Supreme Court Ordinance and the Judicial Service Commission Ordinance (Cap. 92), but I do not think that any of them cast any light on whether a Justice of Appeal is a public officer within the meaning of section 3 of the IGCO. I say that despite Art. X1V(1) of the Letters Patent which provides:

"The Governor may constitute and appoint such Judges, Justices of the 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." (My emphasis).

Clearly, the Letters Patent treat judges as public officers, but that does not mean that a Justice of Appeal is a public officer within the meaning of section 3 of the IGCO. For example, even though Justices of the Peace are treated as public officers in the Letters Patent, they are not public officers within the meaning of section 3 of the IGCO because they do not hold an office of emolument.

THE DEFINITION IN SECTION 3 OF THE IGCO

9. It is common ground that a Justice of Appeal holds "an office of emolument... in right of the Government of Hong Kong". That he holds an office of emolument cannot be questioned, and the rather old-fashioned phrase "in right of the Government of Hong Kong" simply means "in respect of Hong Kong". What Mr. Denis Chang Q.C. for the Respondents contends is that a Justice of Appeal does not hold such an office "under the Crown". That is because, in the performance of his duties, a judge is wholly independent of the Crown, even if the Crown has the power of appointing and dismissing him.

10. I cannot accept this argument. I do not begin to see why judicial independence should result in judicial office being held otherwise than under the Crown. What is important is not that the duties of the office are performed independently of Government control, but that the duties of the office are connected with the public service: see, for example, the report of the Attorney-General, Sir Donald Somervell, in his Third Memorandum to the Select Committee on Offices or Places of Profit under the Crown, 1941, quoted by Liu J. (as he then was) in Re Legislative Council Election for the Hong Kong Island (East) Electoral College Constituency [1989] 2 HKLR 194 at p.199. Is the Attorney-General to be regarded as not holding office under the Crown as a result of the constitutional convention that the Attorney-General alone decides whether or not prosecutions should be instituted in particular cases or in cases of a particular class? Indeed, the fact that independence is not inconsistent with an office being held under the Crown is demonstrated by the position of the Director of Audit. Section 3(3) of the Audit Ordinance (Cap. 122) provides:

"No person who is appointed ... as the Director of Audit shall, while he holds that office, hold any other office of emolument under the Crown in right of the Government of Hong Kong." (My emphasis).

This language repeats the language of the definition of "public officer" in section 3 of the IGCO, and it is therefore plain that the legislature contemplated that the Director of Audit should be a public officer. However, the legislature regarded him as a public officer, holding his office under the Crown, despite the fact that he enjoys an independence not dissimilar to that which constitutional convention accords to judges. That is because section 9(3) of the Audit Ordinance provides:

"In the performance of his duties and the exercise of his powers under this Ordinance the Director [of Audit] shall not be subject to the direction or control of any other person or authority."

11. Mr. Chang placed considerable reliance on the decision of the Privy Council in Ranaweera v. Ramachandran [1970] AC 962 in support of his contention that an office is not held under the Crown if the duties of the office are performed independently of Government control. In that case, members of the Income Tax Board of Review of Ceylon were held by a majority not to be public officers since they were akin to independent arbitrators carrying out their duties independently and impartially.

12. I do not derive any assistance from this case. What the Privy Council had to do in that case was to construe section 3 of the Constitution of Ceylon, which defined a public officer as

"any person who holds a paid office, other than a judicial office as a servant of the Crown." (My emphasis).

It was the phrase "servant of the Crown" which was regarded as important by the majority. It was that phrase which caused the majority to import from the private law relating to master and servant the concept of the extent to which the members of the Board of Review were subject to control in the performance of their duties. In my judgment, such a concept has little, if any, place in public law in which the expression "servant of the Crown" has become a term of art descriptive of persons by whom the functions of Government are carried out. It was this line of reasoning which caused Lord Diplock to reject the rationale underlying the majority judgment. I find both his dissenting judgment, and his conclusion that members of the Board of Review were servants of the Crown and therefore public officers, far more compelling than the majority judgment.

13. Despite that, I am obliged to follow the view of the majority. I am therefore bound by its view that a person whose duties are performed independently of Government control is not a "servant of the Crown". But section 3 of the IGCO does not define a public officer by reference to a person holding office as a "servant of the Crown". It defines a public officer by reference to a person holding office "under the Crown". The fact that the definition of "public officer" in the Constitution of Ceylon imported the private law concept of control because of the use of the word "servant" does not begin to mean that the definition of "public officer" in section 3 of the IGCO, which does not include the word "servant", should do so as well. In my view, it is neither necessary nor desirable that it should.

14. In reaching this conclusion, I have not overlooked the fact that the term "public servant" is defined in section 3 of the IGCO in exactly the same way as "public officer". However, the fact that the terms are synonymous does not affect the meaning of the phrase "under the Crown" in its application to public officers. The fact that a public servant is a person whose office is held under the Crown does not mean that a public officer ceases to be a public officer if he performs his duties independently of Government control.

15. For these reasons, I have reached the clear conclusion that a Justice of Appeal is a public officer within the meaning of section 3 of the IGCO.

CONTRARY INTENTION

16. The definitions in section 3 of the IGCO apply except "where the contrary intention appears ... from the context of any other Ordinance". The use of this language is significant. The language in the interpretation section of most Ordinances is "unless the context otherwise requires". The difference in the statutory language cannot have been accidental, and I must give effect to it. In my view, where the interpretation section of an Ordinance uses the words "unless the context otherwise requires", the definition in that section of a particular word or phrase will be adopted unless it is displaced by express words or necessary implication. However, a lower threshold for the displacement of the definitions in section 3 of the IGCO applies. The definition in that section of a particular word or phrase will apply to the same word or phrase in another Ordinance unless there is "something in the context, or in the manifest object of the [Ordinance], or in the nature of the subject-matter" to displace that definition: see the application by Avory J. in Law Society v. United Service Bureau Ltd. [1934] 1 KB 343 at pp. 347-348 to the proper construction of the phrase "unless the contrary intention appears" of the statement of principle of Lord Selborne L.C. in Pharmaceutical Society v. London and Provincial Supply Association (1880) 5 AC 857 at p. 862.

17. It follows that I reject Sir John's submission that the difference in language between "requires" and "appears" is a distinction without a difference. It may be that the less usual formula was chosen for the IGCO because of the IGCO's wider spectrum, i.e. because it was providing for uniform definitions to be applied to all other Ordinances. But the fact remains that the more usual formula could have worked equally well. I suspect, though, that there will be very few cases in which a difference in language would produce different results. I say that because, whether the language is "requires" or "appears", the indicators that it was intended that the statutory definition should be displaced must be strong before the statutory definition can be displaced.

18. In determining whether there is something in the context or the object or the subject-matter of the TPO which displaces the definition of "public officer" in the IGCO, I have borne three things in mind:

(i) The words "public officer" can mean different things in different Ordinances. That is little more than a statement of the obvious, but as a statement of principle it has, for what it is worth, received judicial approval: see the statement of Lord Goddard in Beeston and Stapleford U.D.C. v. Smith [1949] 1 KB 656 at p. 663. For example, as I have already indicated, judges are regarded as public officers for the purposes of the Letters Patent, whereas they are not for the purposes of section 13A of the Arbitration Ordinance (Cap. 341).

(ii) The context, object and subject-matter of an Ordinance can only be determined by looking at the Ordinance as a whole: see, for example, the observations made in Attorney-General v. Prince Ernest Augustus of Hanover [1957] AC 436 at pp. 460-461, 465 and 473-474.

(iii) Although I should give the words "public officer" in the TPO such a construction "as will best ensure the attainment of the object of the [TPO] according to its true intent, meaning and spirit" (section 19 of the IGCO), I must never forget that the definition of "public officer" in section 3 of the IGCO applies unless a contrary intention appears either from the IGCO itself or from the context of the TPO.

CONTRARY INTENTION: THE IGCO

19. Sir John submits that there is nothing in the IGCO itself which suggests that the words "public officer" in any other Ordinance should not include a Justice of Appeal. I agree. Mr. Chang did not suggest otherwise. However, I disagree with Sir John's further submission that apart from the interpretation section the IGCO itself suggests that the words "public officer" include a Justice of Appeal. Sir John relies on the fact that, pursuant to his powers under section 43(4) of the IGCO, the Governor has specified various public offices for the purposes of various Ordinances. In doing so, the Governor specified the office of Chief Justice as a public office. Sir John argues that

(i) if the office of Chief Justice is a public office, the Chief Justice is a public officer,

(ii) if the Chief Justice is a public officer, a Justice of Appeal should be regarded as a public officer as well.

The fallacy in the argument is that it is not the IGCO which suggests that the office of Chief Justice is a public office. It is the specification itself which assumes that. That assumption may well be correct, but it is not an assumption made by the IGCO.

CONTRARY INTENTION: THE TPO

20. Although there is nothing in the IGCO which suggests that a Justice of Appeal is not a public officer, Mr. Chang argues that there is much in the context, object and subject-matter of the TPO which shows that a Justice of Appeal was never intended to be included in the words "public officer" in section 17A(2) of the TPO. That was Mr. Chang's principal argument. In order to evaluate it, it is necessary to look at the powers, functions and membership of the Board and the Appeal Board panel as provided for by the TPO.

21. The primary functions of the Board are as follows:

(i) to undertake the systematic preparation of draft plans for the layout, and draft development permission area plans, of areas of Hong Kong: section 3(1);

(ii) after considering such objections by persons affected by these draft plans, to submit them to the Governor-in-Council for approval: section 8;

(iii) where a draft plan or a plan approved by the Governor-in-Council provides for the grant of permission for any purpose, and an application for the grant of such permission has been made to the Board, to consider and adjudicate upon that application: section 16(3);

(iv) where an applicant for the grant of such permission is aggrieved by the Board's decision on such an application, and the Board is asked to review its decision, to consider and adjudicate upon that application for a review: section 17(6).

The functions of the Board are carried out by its members, though the Board is empowered under section 5 to delegate two of its less important functions to public officers. There are no limitations on who may be members of the Board. Section 2(1) empowers the Governor to appoint both official and unofficial members, i.e. persons who are members of the Government and persons who are not.

22. The function of the Appeal Board panel is to consider and determine appeals by persons aggrieved by decisions of the Board on a review under section 17: section 17B. Section 17A(2) excludes two categories of persons from the Appeal Board panel: members of the Board and public officers.

23. Why were these two categories of persons excluded from the Appeal Board panel? The rationale, says Mr. Chang, can only have been because they might have been involved, or might be perceived as having been involved, in some or all of the Board's decisions which the Appeal Board panel will be asked to confirm, reverse or vary. That undoubtedly applies to members of the Board, but it also applies to those public officers who have assisted the members of the Board in the performance of their functions. For example, in order to assist the members of the Board in their administrative functions relating to the preparation of draft plans, public officers in the Planning Department might have prepared plans or sketches under the direction of the Board pursuant to reg. 2(1) of the Town Planning Regulations. Again, in order to assist the members of the Board in their quasi-judicial functions under sections 16(3) and 17(6), public officers may have prepared representations as to why applications for the grant of permission should be refused. It is said, therefore, that the only reason for excluding "public officers" from the Appeal Board panel was to ensure that those public officers who could have been involved in the decisions which are the subject of appeal were excluded. In those circumstances, it could not have been intended to exclude from the Appeal Board panel persons who would have played no part at all in the process by which the decisions which are the subject of appeal to the Appeal Board panel were reached. The words "public officer" should therefore be construed as excluding from Appeal Board panel only those civil servants who are perceived as having a connection with Government decisions on planning matters.

24. On the assumption that Mr. Chang has correctly identified the rationale underlying the exclusion of "public officers" from the Appeal Board panel, it would be fanciful to suppose that the words "public officer" in section 17A(2) were intended to include a Justice of Appeal. A Justice of Appeal would never have been involved in any of the decisions of the Board which the Appeal Board panel would be asked to confirm, reverse or vary - unless he happened to have been a member of the Board itself. But in that case he would have been excluded from the panel for that reason, and not because he was a "public officer".

25. However, I do not think that the rationale advanced by Mr. Chang was the only possible rationale for excluding public officers from the Appeal Board panel. The rationale could well have been that the Appeal Board panel adjudicates in disputes between private citizens (usually, but not necessarily, developers) and the Government. The intention could have been to exclude anyone who works in Government on the ground that persons who work in Government might be perceived as having an interest in furthering the Government's aims by having the dispute resolved in the Government's favour. I regard that as a more likely rationale for the exclusion of public officers. After all, if the rationale had been that contended for by Mr. Chang, it would have been easy for the reference to "public officer" in section 17A(2) to be subject to suitable words of limitation.

26. However, there is a significant distinction between Justices of Appeal (indeed all judges) and other people who work in Government. They perform their duties wholly independently of Government control, and they enjoy tenure in their office which civil servants do not enjoy. Although they are public officers in the sense that they hold offices of emolument under the Crown, their independence from Government control and their security of tenure is such that the rationale for excluding public officers from the Appeal Board panel simply cannot apply to them. All judges, and particularly Justices of Appeal, are regularly called upon to adjudicate in disputes between private citizens and the Government, and it cannot be said that their independence in doing so is somehow compromised because they hold offices of emolument under the Crown. Indeed, it could hardly have been intended to exclude from participation in a quasi-judicial process persons who are pre-eminently qualified to participate in that process.

27. For these reasons, I am satisfied that, however the words "public officer" in section 17A(2) of the TPO are to be construed, it was not intended that they should include a Justice of Appeal, and for that reason the definition of the words "public officer" in section 3 of the IGCO does not apply to those words in section 17A(2). In reaching that conclusion, I should add two things:

(i) Mr. Chang asked me to look at various provisions in the Noise Control Ordinance (Cap. 400), the Water Pollution Control Ordinance (Cap. 358) and the Air Pollution Control Ordinance (Cap. 311) as examples of Ordinances in which the exclusion of public officers at Appeal Board level could not have included the exclusion of judges. I have not found these Ordinances helpful. The fact that some Ordinances should be construed as displacing the definition of "public officer" in section 3 of the IGCO does not help in determining whether the TPO should be so construed.

(ii) I have had cited to me a number of local authorities which deal with whether certain officers (for example, lay assessors under the Magistrates Ordinance (Cap. 227), permanent magistrates appointed on a temporary basis, and adjudicators of the Immigration Tribunal and the Registration of Persons Tribunal) are public officers under the Legislative Council (Electoral Provisions) Ordinance (Cap. 381) and the Electoral Provisions Ordinance (Cap. 367). I have not found these authorities helpful either. The conclusions reached by some judges as to whether certain officers are public officers for electoral purposes are of little help in determining whether other officers are public officers for town planning purposes.

28. Finally, a number of arguments were addressed to me as to whether a Justice of Appeal could be a member of the Board (as opposed to the Appeal Board panel), and what the consequence of that would be. There is nothing in section 2(1) to prevent the Governor nominating a Justice of Appeal to the Board. If the Governor did so, the Justice of Appeal would be excluded by section 17A(2) from being a member of the Appeal Board panel, because members of the Board are excluded from membership of the Appeal Board panel. Sir John argued that the fact that a Justice of Appeal can be appointed to the Board indicates strongly that a Justice of Appeal is a "public officer" within the meaning of section 17A(2), but I do not think that it indicates anything of the kind. The eligibility of a Justice of Appeal to membership of the Board is no indication of his eligibility, or lack of eligibility, to be a member of the Appeal Board panel.

CONCLUSION

29. For these reasons, this application for judicial review must be refused. At present, I see no reason why the costs should not follow the event. I therefore make an order nisi that the Applicant pays to the Respondents their legal costs of the proceedings to be taxed if not agreed.