WONG KEI KWONG v. PRINCIPAL ASSISTANT SECRETARY FOR THE CIVIL SERVICE AND ANOTHER

CACV 72/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 72 OF 2008

(ON APPEAL FROM HCAL NO. 49 OF 2007)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an application for leave to appeal to the Court of Final Appeal under the provisions of section 22(1)(b), from a judgment of this court delivered on 4 February 2009.  The application was refused at the hearing of the application with reasons to be given in writing.

2.  The background to this case can be gleaned from the judgment in the court below and from this court’s judgment.  On this application the questions which the applicant wished to raise in the Court of Final Appeal were as follows:

“ (A)  In light of the Court of Final Appeal judgment in Lam Siu Po v. Commissioner of Police (2009) HKCFAR 24 on 26^th March 2009, whether section 15 of the Public Service (Administration) Order (‘Section 15’) should be construed in light of constitutional protection against double jeopardy in Article 14(7) of International Covenant on Civil and Political Rights and in Article 11(6) of Hong Kong Bill of Rights Ordinance (Article 11(6)) in a disciplinary inquiry, and whether the Section 15 should be construed by an approach of ‘generous interpretation’ (Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4 at p.29) or a wider approach of construction;

 (B)  In interpreting or applying the section 15 of the Public Service (Administration) Order (‘section 15’), whether the Court should adopt a wider approach of construction under the rule against double jeopardy in light of the authorities in the area of double jeopardy;

 (C)  Whether the words ‘substantially the same issues’ in section 15 embrace a wider construction approach under rule against double jeopardy rather than the strict approach under the principles of autrefois acquit; and

 (D)  Whether a merely narrow distinction in issue, namely an intention to deceive, between the criminal charge and disciplinary charge renders the disciplinary charge not raising ‘substantially the same issues’ as the criminal charge while it is logical consequence of proof of the facts for the disciplinary charge that there is almost certainly an intention to deceive.”

3.  In relation to the first question it should be pointed out that when the appeal was heard the applicant had abandoned the ground that section 15 of the Public Service (Administration) Order was inconsistent with Article 39 of the Basic Law and Article 14(7) of the ICCPR and Article 11(6) of the Hong Kong Bill of Rights.  On this application it was said that it was not alleged that section 15 was unconstitutional, it was simply that it should be given a “generous interpretation”.

4.  In my view, the four questions which have been posed amount to different ways of putting what is, in effect, a similar point.  If the interpretation postulated were applied, it would amount to re-writing the section.  Since I do not consider that there is any ambiguity in the section I do not consider it an appropriate case to give leave to appeal to the Court of Final Appeal on the footing that there is a matter of great general public importance.

Hon Le Pichon JA:

5.  I agree.

Hon Sakhrani J:

6.  I also agree.