LI CHI SUM v. SECRETARY FOR JUSTICE for and on behalf of THE DIRECTOR OF FIRE SERVICES

DCEO 11/2017 & DCEO 5/2018
(Consolidated)

[2020] HKDC 177

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NOS 11 OF 2017 AND 5 OF 2018

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(Consolidated by the Order of Mr Registrar Ho of the District Court dated 28 February 2018)

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DECISION

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1.  On 20 November 2019, I handed down my decision, ordering that these proceedings be stayed pending the conclusion of the disciplinary proceedings in respect of the claimant’s suspected disciplinary offences committed between January and July 2012.

2.  By summons dated 8 January 2020, the claimant applies for leave to appeal against the decision.  (Time was previously extended for the claimant to take out the application.)

3.  Following the guidance laid down by the Court of Appeal in Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350, [2018] HKCA 759 at para 24, I gave directions for the lodging of written submissions. Having read the submissions, I am satisfied that an oral hearing is not necessary and the summons is suitable for disposal on paper only.

4.  The claimant puts forward two proposed grounds of appeal.

5.  I shall adopt below the defined terms in the decision.

Legal principles

6.  The principles governing the threshold for granting leave to appeal are well-established.  The applicant needs to show that the appeal has a “reasonable prospect of success” or there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance, Cap 336.

7.  An applicant is required to show more than just an arguable case.  What is needed is an appeal that has merits and ought to be heard, although the applicant does not have to demonstrate that the appeal will probably succeed: Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515 at para 19, per Chu J.  A “reasonable prospect of success” means an appeal with prospects that are more than “fanciful”, without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at para 17, per Le Pichon JA.

The first proposed ground

8.  Under the first proposed ground, the claimant contends that I erred in law in holding that factual findings made by the Director in disciplinary proceedings conducted within the framework under the FSO are capable of giving rise to issue estoppel in a subsequent court action. I erred in finding that as a matter of statutory interpretation, the decision of the Director is judicial in the relevant sense.  I ought to have held that his decision resulting from investigations conducted under the FSO do not amount to adjudication for res judicata purposes.  This is because the legislature does not confer any jurisdiction on the Director to adjudicate. It merely confers powers on him to investigate into allegations of disciplinary offences.  The procedure embodied in Schedule 2 to the FSO does not turn an occasion of investigation into a judicial tribunal.

9.  Mr Paul Leung, counsel for the claimant, submits that the key question is this – has the legislature conferred jurisdiction on the Director to adjudicate on the matter?

10.  In paras 92 to 114 of the decision, I went through the elaborate and detailed provisions in the FSO on disciplinary proceedings, deduced the legislative purpose and intention of these provisions and concluded that the statutorily prescribed procedure amounts to a proper adjudication in the relevant sense.

11.  In his submissions, Mr Leung places emphasis on the exact words used in the FSO.  He argues that the choice of words by the legislature is important, if not paramount, when ascertaining the legislative intent even when the overall context is considered.  He concludes that on a proper interpretation of the FSO, in particular, section 14 and Part I of Schedule 2, the legislature has only conferred powers on the Director to investigate into allegations of disciplinary offences.  As such, the Director’s decision is not judicial in the relevant sense.

12.  Mr Leung’s submission on the wording of the FSO is the same as before.  I dealt with it in paras 126 to 128 of the decision. 

13.  Mr Leung cites a number of legislations which contain express wording conferring jurisdiction on the relevant bodies to hear and determine claims or disputes.  These bodies include:-

(a)  The Labour Tribunal, pursuant to section 7(1) of the Labour Tribunal Ordinance, Cap 25;

(b)  The Board of Review, pursuant to sections 64 to 66 and 68 of the Inland Revenue Ordinance, Cap 112;

(c)  The Small Claims Tribunal, pursuant to section 5 of the Small Claims Tribunal Ordinance, Cap 338; and

(d)  The District Court, pursuant to section 3 of the District Court Ordinance.

14.  By contrast, there is, Mr Leung submits, nothing in the FSO to suggest that the legislature had any intent to confer jurisdiction on the Director to adjudicate, or to hear and determine disputes.

15.  Ms Kay Seto, counsel for the respondent, submits that the reliance on these Ordinances is misplaced because they are irrelevant to the key question before us, which concerns the FSO.  I agree with that submission.  I also repeat what I said in para 128 of the decision.

16.  Further, Mr Leung argues that the procedure laid down in Schedule 2 of the FSO, which gives an opportunity to a member to adduce evidence in rebuttal of allegations levelled at him and to make representations to defend the case against him, does not turn an occasion of investigation into a judicial tribunal.

17.  Mr Leung submits that this can happen in any fair-minded organisation.  Apart from that, however, he does not explain what one should make of such a procedure.  Nor does he indicate whether the presence of such a procedure is or is not a relevant matter which one should take into account when determining the adjudication issue.  Is he saying that it is a totally irrelevant or immaterial matter?  Or is he saying that it is relevant but not a weighty matter?  It is simply not clear to me. 

18.  In my view, it is plain and clear that the procedure is a relevant matter.  Having gone through the analysis which I undertook in the decision, overall speaking, the Director’s findings made in disciplinary proceedings under the FSO amount to adjudication in the relevant sense.

19.  This ground therefore has no reasonable prospect of success. 

The second proposed ground

20.  Under the second ground, the claimant contends that I wrongly exercised my discretion in that I had proceeded on the erroneous but fundamental basis that decisions of the Director are judicial in the relevant sense and any factual findings made by him are capable of giving rise to issue estoppel in subsequent court actions.  If I had not made that error, I ought to have exercised my discretion against a stay.

21.  The second ground is premised on the first ground, which I have just concluded has no reasonable prospect of success.  It follows that the second ground similarly has no reasonable prospect of success.

Any other reason why the appeal should be heard?

22.  Notwithstanding the above, the claimant further argues that whether or not the Director’s factual findings in disciplinary proceedings give rise to issue estoppel in subsequent civil actions is an area of law that has no precedents or decided cases in this jurisdiction.  It is an important question with potentially far-reaching repercussions and effects. For example, legal proceedings commenced “as of right” will be put on hold indefinitely, deferring the exercise of the court’s natural jurisdiction whenever the FSD contemplates or decides to trigger the disciplinary procedure under the FSO.  More importantly, the claimant submits that the court’s jurisdiction to decide on issues of fact and/or law may be surrendered to the Director or his delegate.  It is therefore an issue that is fit for the Court of Appeal to rule on.

23.  The respondent disagrees.  Ms Seto submits that Cowie is a precedent which decides that findings made by a board of enquiry in the course of statutory disciplinary proceedings would give rise to an estoppel in relation to those findings in a subsequent court action.  Furthermore, the suggestion that legal proceedings commenced as of right will be “put on hold indefinitely” is misconceived.  In any event, the grant of a stay must involve an exercise of discretion by the court in the circumstances of each particular case.

24.  I agree with Ms Seto’s submissions. 

Conclusion

25.  For the above reasons, I dismiss the claimant’s summons.

26.  Costs should follow the event.  I order that the respondent do have costs of the summons, with certificate for counsel, summarily assessed in the sum of $30,000.  The claimant’s own costs be taxed in accordance with the Legal Aid Regulations.