YIM SHIK SHI v. THE SECRETARY FOR THE CIVIL SERVICE

HCAL 128/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.128 OF 2003

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REASONS FOR JUDGMENT

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Introduction

1. By letter dated 16 September 2003, the applicant in this matter, a civil servant, was informed that the Secretary for the Civil Service, in the exercise of authority delegated to him by the Chief Executive, had directed that he be retired from the civil service in the public interest pursuant to s.12 of the Public Service (Administration) Order. The applicant instituted judicial review proceedings to have that decision set aside on the basis that it was vitiated by unfairness, bias and procedural impropriety.

2. Having heard submissions, I dismissed the application, saying that my reasons would be given later. I now give my reasons.

Background

3. The applicant joined the Hong Kong Civil Service in 1980 as a clerical assistant, a rank held by him throughout his service. In June 1998 he was transferred to what is now called the Food and Environmental Hygiene Department ('the Department'). While working in the Department, the applicant's principal duties encompassed the management of licensing files. This involved making relevant entries into registry records, maintaining movement cards and the like.

4. All civil servants are subject to regular appraisal reports. Regrettably, however, from the time he joined the Department the applicant's appraisal reports spoke of a poor work record.

5. To illustrate the critical way in which the applicant's work record was viewed by his supervisors, in his report for the period 1 January to 30 June 2000 the countersigning supervisor made the following observations :

" The messy conditions of the filing room, piles of backlog files and complaints against Mr Yim from the health inspectors caught my attention soon after I was posted to the office in April. I thus conducted an interview with Mr Yim by the end of April. He was strongly advised to make improvements on his work by clearing the backlogs in the first place. I indicated to Mr Yim that he might need to stay behind after office hours to work on the backlogs. My advice however went ignored ...

I consider that Mr Yim should not embrace the false hope that he can always count on other colleagues' help whilst he himself is not willing to make an extra effort to discharge his own duties. This message has been conveyed to him on several occasions. In fact, his failure to do a proper job has caused much inconvenience to other colleagues, thus jeopardising his relationship with them. Since Mr Yim is working in a licensing section, not only would his performance affect the efficiency of the licensing section, but also the service provided to the public."

6. By memorandum dated 20 November 2001, the Director of the Department sought the views of the Director of General Grades as to whether the applicant should be considered for compulsory retirement in the public interest. Section 12 of the Public Service (Administration) Order - which provides for such retirement - reads as follows :

"(1) The Chief Executive [in this case the Secretary for the Civil Service under delegated authority] may, at any time if it is represented to him that retirement of an officer is desirable in the public interest, call for a report from the head of any department in which the officer has served. The officer shall be informed of the grounds on which his retirement is contemplated under this section and be given an opportunity to make representations.

(2) The Chief Executive may, upon a consideration of the report and of any representations submitted under subsection (1), require the officer to retire from the service, if he is of the opinion that, having regard to conditions of the public service, the usefulness of the officer thereto and all other circumstances of the case, the termination of the officer's service is desirable in the public interest and the officer's service shall accordingly terminate on such date as the Chief Executive may specify."

7. It is to be noted that retirement in the public interest, while a censure as to competence, is not a punishment as such. Accordingly, all pension benefits, leave entitlements and the like remain.

8. By memorandum dated 19 December 2001, the Director of Grades agreed that the applicant's record of performance constituted a 'potential case' for taking action pursuant to s.12 of the Public Service (Administration) Order. He required that the Director of the Department should therefore -

(a)	advise Mr Yim's appraising and countersigning officers that performance appraisals should be assessed in an accurate and objective manner and that any irregularities in Mr Yim's performance and conduct should be properly documented for future action;
(b)	put Mr Yim under close supervision and closely monitor his performance by quarterly performance appraisals since 1 January 2002."

9. The Director of Grades issued a reminder that the guidelines for the 'handling of substandard performers' who are being considered for compulsory retirement in the public interest should be 'properly followed'.

10. The guidelines appear to have been compiled in 1995. They set out a procedural route that encompasses 12 steps. These steps involve a process of monitoring performance, counselling the officer in respect of his perceived deficiencies, issuing 'advisory letters' (that act also as formal warnings), giving an opportunity to the officer to make representations and, if there is not sufficient improvement over a relatively extended period of time, referring the matter by way of a recommendation for compulsory retirement to the Secretary for the Civil Service ('the Secretary'). The final decision, of course, rests with the Secretary.

11. It is to be emphasised that the guidelines are purely administrative. They are not contained in any statutory or regulatory instrument. As an internal administrative guide they seek to ensure that, before an officer is retired in the public interest, he is made aware of his shortcomings, is given the opportunity to explain himself and, if his explanation is not accepted, is given the opportunity to improve. In addition, the guidelines seek to ensure that supervising officers employ a fair and consistent approach. In my judgment, the guidelines create a legitimate expectation that if a civil servant is to be considered for compulsory retirement in the public interest, those officers responsible for deciding his fate will be guided by the guidelines.

The applicant was the subject of unfair or biased appraisals

12. The applicant's first ground of challenge was to the effect that, while serving in the Department, his appraisal reports were vitiated by unfairness or bias. It was on the basis of these reports, it was said, that it was decided to take steps to bring about the compulsory retirement of the applicant from Government and accordingly the unfairness that marked the reports undermined the fairness of the entire process by which the applicant was retired from public service.

13. As Mr Westbrook SC, leading counsel for the respondent, put it, this ground of challenge constituted a broad factual allegation, an allegation that was rejected by the supervising officers who had played a part in compiling the applicant's reports.

14. As Mr Westbrook pointed out, this ground of challenge encompassed no less than 14 appraisal reports spanning a period of nearly five years, each report containing detailed comments by an appraising officer, a countersigning officer and a reviewing officer. Mr Westbrook contended that, on a study of the reports, there was no legitimate basis for suggesting that they had been anything other than fair and objective.

15. It is not for this Court to determine the merits of the various reports; that is, to the degree to which they were or were not factually correct. It is in no position to embark upon such an exercise. It is a fundamental principle that judicial review is concerned, not with the merits but rather with the decision-making process itself unless the decisions can be shown to be irrational; that is, outside of the parameters of a reasonable decision-maker, or ultra vires in some other way.

16. I was clearly not in a position, in the absence of hearing prolonged oral evidence from a number of parties, to look behind the various appraisal reports. But Ms Sylvia Tung, the applicant's counsel, did not propose such a course. Her submissions went directly to what was stated in the reports themselves.

17. I confess, however, having considered the various matters which she identified in the reports, that I was unable to identify anything which, on its face, read alone or in conjunction with other matters, smacked either of unfairness or of a real danger of bias. In general terms, it seemed to me that the supervising officers were doing their best to accurately and fairly monitor the applicant's progress. When it appeared to those officers that the applicant was showing some improvement, they acknowledged that improvement. When it appeared that there was no improvement or a worsening in performance, they recorded that too. Supervising officers, in discharging responsibilities of the kind under review, have a difficult job, no doubt an unpleasant one too on occasions. But criticism of performance, even strong criticism, does not per se imply bias.

18. I do not intend to canvass all of the points raised by Ms Tung in her attempt to show that the appraisal reports had dealt unfairly with the applicant or had shown bias on the part of the supervising officers. It suffices to say that, having been led to each point by Ms Tung and having considered each point in context, I founded nothing of force in any of them. By way of a single example, Ms Tung pointed to the fact that in one report the applicant's overall grade had been reduced from a C to D. But that reduction was made on the face of the report and was countersigned. I fail utterly to see how that reduction - on its own - could indicate unfairness or bias. Indeed, a study of the reports shows that in another report the overall grade had in the same manner been improved.

The procedural guidelines were not 'properly' followed

19. In respect of this ground of challenge, it was Ms Tung's assertion, as I understood it, that, Government having compiled the procedural guidelines, it was incumbent upon its officers to follow those guidelines to the letter and that any deviation from them vitiated the process by which an applicant was brought to compulsory retirement. With respect to the vigour of Ms Tung's arguments, I do not accept that the procedural guidelines demand the strict compliance that she advocated, in the absence of which the validity of the entire process would be undermined. As I have already said, the procedural guidelines are not statutory or delegated legislation. They do not purport to deal definitively with every situation that may arise. To borrow a phrase employed in the authority to which I refer in the following paragraph, they constitute 'guidance and not tramlines'.

20. In R v. Wakefield Metropolitan District Council, ex parte Pearl Assurance PLC (unreported) 5 March 1997, QBD (CO/3313/96) Jowitt J, faced with a similar challenge in respect of town planning policy guides ('PPGs'), having confirmed that they are not to be seen as tramlines, went on to say :

"Does this mean that when some paragraph of a PPG has a bearing on a planning decision which a planning authority has to make it must go line by line through the paragraph, treating each line as though it were a material consideration, so that failure to take it into account may vitiate its decision? Mr Barratt does not suggest this and expressly disavows any such extreme proposition and I agree with him ... Whether a piece of guidance amounts as a matter of law to a material consideration has to be judged by reference to the content of the guidance seen in the factual context of the particular case. Moreover, there is an important distinction between having regard to guidance and being bound to follow it."

21. During the course of her submissions, Ms Tung emphasised that on several occasions, when the guidelines directed supervising officers to take steps 'forthwith' or 'within two to three weeks', the officers failed to do so, their steps being taken later than prescribed. But where did this take her? The delays were minimal and there was no evidence that such delays acted in any material way to the prejudice of the applicant. Fairness is not to be judged in a vacuum. To put it another way, there are no technical breaches of the rules of fairness. As I have said earlier, there was undoubtedly a legitimate expectation vested in the applicant that his supervising officers would be guided by the procedural guidelines to ensure that he was treated fairly and impartially. But on the evidence, even if there was an occasional failure to strictly follow the guidelines, I do not see how such failure in any way frustrated that legitimate expectation.

22. Again, I do not intend to canvass each of the points raised by Ms Tung. Suffice to say that I was led to each of them by her and that, when I harboured concern, I had the benefit of submissions from Mr Westbrook. In respect of each and every point raised I was satisfied that, taken individually or in the round, there was no force in them.

23. During the course of the hearing I commented that the procedural guidelines, in attempting to be fair, were almost bewildering in their complexity and bureaucratic jargon. Despite this, it appears that, with the exception of minor lapses, the supervising officers managed somehow to follow not only the spirit and intent of the guidelines but also their step-by-step requirements.

That the supervising officers failed to take into account a material consideration

24. In September 2002, the applicant made written representations as to why he should not be recommended for compulsory retirement from the public service. It appears that in the letter (or by way of an oral request at about the same time) the applicant asked to be transferred to another post or another department.

25. In a letter dated 19 October 2002, the Director of the Department looked to the various representations raised by the applicant and, in respect of the request for a new post or transfer, said the following :

" As we have informed you in our letter of 9 September 2002, your performance would be put under close monitoring and two special quarterly reports will be called on you. For this reasons, we do not consider it appropriate to transfer you to another post or department at this stage."

26. On behalf of the applicant, Ms Tung contended that the guidelines clearly obliged the applicant's supervising officers to consider remedial action to tackle his performance. In this regard, Ms Tung pointed to paragraph 6.5 of the guidelines which speaks of the initiation of such remedial action as a 'new posting' or 'training'. In the present instance, said Ms Tung, the applicant's supervising officer was therefore obliged to give active consideration to a new posting but clearly failed to do so.

27. I disagree. The fact that the supervising officer came to a decision that, in the prevailing, circumstances, it was not at that time appropriate to transfer the applicant to a new post or department does not mean that the matter was not considered. The letter reveals no more than that, having considered the request, the supervising officer decided against it and did so essentially for the stated reason.

28. As to the reason itself, it seems an entirely rational one to me.

29. In any event, paragraph 6.5, to which Ms Tung referred in support of her argument, looks specifically to a situation in which the supervising officer has decided not to issue a further warning letter or proceed further with steps towards compulsory retirement. In that instance, paragraph 6.5 states that the supervising officer should then initiate some remedial action; for example, by allowing a new start or providing a fresh impetus by way of training.

The Secretary did not consider the applicant's representations before deciding to order his retirement

30. I confess that I had difficulty understanding the essential thrust of this challenge.

31. The evidence shows that the recommendation by the Department that the applicant be retired in the public interest was considered by officers in the Civil Service Bureau. On the evidence available to them, those officers concluded that the recommendation was a proper one. A detailed letter was then sent to the applicant setting out the grounds of complaint and explaining why it was that the Civil Service Bureau had reached its view. The applicant was then invited to make representations. He chose to do so and submitted lengthy representations. He was given the last word.

32. The papers then went before the Civil Service Commission. That Commission considered the recommendation to be a proper one.

33. Only thereafter where the papers placed before the Secretary. There can be no suggestion that the Secretary did not make an independent decision on the papers placed before him.

34. Ms Tung argued that the Civil Service Bureau should not have formed any view of the matter and should have remained a neutral party responsible only for preparation of relevant papers. As I understood it, it was the thrust of her submission that any view adopted by the Civil Service Bureau was thereby somehow a view adopted by the Secretary himself. I do not see how that follows. Nor is there anything to suggest that in this particular case the Secretary was in any way involved in the matter prior to the relevant documents being placed before him for his final determination.

35. In my judgment, the Civil Service Bureau was entitled to adopt a position. There would have been no complaint if it had adopted a position in favour of the applicant. Nor, in my opinion, can it be said that there was anything unlawful in the Civil Service Bureau's view coming to the notice of the Secretary when the papers came before him for final decisions. Ministers of Government are entitled to be advised by those who served them. The law in that regard is clear. But such advice does not have to be followed. The Secretary had before him the representations of the applicant and the representations of his officers. It was for him to determinate the issue.

Losing the wood for the trees

36. There is no doubt that in respect of any lengthy and complex process, such as the one under review, if a magnifying glass is taken and each step is examined with a scrupulous eye for any slip or omission then some failure, no matter how immaterial, will no doubt be found. But such an exercise, it seems to me, runs the inherent risk of losing the wood for the trees. In the desire to concentrate on minutiae the broader picture is ignored. What must be remembered in cases of this kind, which look to administrative not judicial processes, is that unfairness, procedural or substantive, must be found to constitute an abuse of power. The unfairness must be conspicuous in some way. Technical omissions, minor slips, inconsequential delays or errors of form that have no consequence do not, unless their totality can be seen to have destroyed the integrity of the entire process, go to prove that an administrative process is rendered unlawful.

37. In the present case, it was plain to me that the applicant's supervising officers had gone to considerable lengths to monitor the applicant's performance over an extended period of time. Numerous advisory letters were sent to him, he was interviewed and given the chance to explain his position by way of representations. There was no 'rush to judgment'.

38. As I have said, the procedural guidelines were adhered to and a final decision only reached after extended enquiries. In such circumstances, even if minor failures to follow procedure may have been identified, absent evidence of actual prejudice to him (and there was none), I fail to see how such failures undermined the essential fairness of the process to which the applicant was subjected.

Costs

39. Having dismissed the application, I directed that I would only decide the question of costs after receipt of written submissions. My determination as to costs will therefore constitute a separate ruling.