LI CHI SUM v. DIRECTOR OF FIRE SERVICES

HCAL 89/2015

[2018] HKCFI 498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 89 OF 2015

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J U D G M E N T

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A.   INTRODUCTION

1.  The applicant applies for judicial review by Originating Summons dated 13 April 2017 (the “Application”) on the grounds as set out in the Amended Form 86 (“AF86”).

2.  The Application concerns the disciplinary proceedings conducted for the applicant’s alleged misconduct committed between 18 January 2012 and 4 July 2012 (the “Subject Disciplinary Proceedings”).  The applicant raised various allegations to suggest that the Subject Disciplinary Proceedings were procedurally unfair,illegal, irrational and in breach of the applicant’s Article 10 right to fair trial.  As submitted by the respondent, the grounds pleaded in the AF86 can be briefly stated as follows:

(1)   The Presiding Officer of the disciplinary proceedings erred in not adjourning the proceedings for a medical board to be convened for the applicant: AF86, Ground 2.  The applicant says that this failure was:

(a)   contrary to the “Guidelines on the Handling of Substandard Performance or Misconduct Cases Involving Members of the Fire Services Department with Disabilities” (“FSD Guidelines”), and/or based on a “misunderstanding” or “misapplication” of the applicable provisions in the FSD Guidelines;

(b)   perverse or irrational, particularly in light of the fact that the applicant has (finally) signed a consent form to convene a medical board.

(2)   The Presiding Officer erred in proceeding with the disciplinary hearing on 13 March 2015 in the applicant’s absence, thereby violating his right to a fair hearing.  The applicant says that it was “unreasonable and unfair” for the Presiding Officer “not to accept his explanation” for his previous 3 times of absence from scheduled hearing: AF86, Ground 1B.

(3)   The disciplinary proceedings against the applicant were procedurally unfair, in that the respondent and/or the Presiding Officer:

(a)   failed to secure medical advice to ascertain the applicant’s fitness;

(b)   failed to afford the applicant legal representation;

(c)   convicted the applicant in his absence upon the prosecution’s evidence and submissions without inviting any submissions from the defence.

See: AF86, Ground 1A and Ground 1B, paragraph 71.

(4)   The punishment of “dismissal without retirement benefits” was unreasonable and irrational: AF86, Ground 3.

B.   BACKGROUND

3.  The applicant joined the Fire Services Department (“FSD”) as a fireman on 25 May 2002, and fulfilled the pre-requisite requirement for the consideration of promotion to senior fireman by obtaining the Senior Fireman Certificate in 2007.

4.  Between 23 August 2011 and 2 October 2011, sick leave was granted to the applicant who was diagnosed to have adjustment disorder.  On 3 October 2011, the attending doctor of the West Kowloon Psychiatric Centre of the Hospital Authority certified that the applicant was mentally stable and was mentally fit to resume his work duties.  According, the FSD arranged the applicant to resume operational duties with effect from 4 October 2011.

B1.   The Subject Disciplinary Proceedings

5.  On 18 July 2012, the Director of Fire Services interdicted the applicant for investigation into 10 suspected disciplinary offences committed by the applicant between 18 January 2012 and 4 July 2012, pursuant to section 14(1)(b) of the Fire Services Ordinance, Cap 95 (“FSO”).

6.  On 28 August 2012, the FSD notified the applicant to attend 3 sessions of interview on 4 September 2012, 5 September 2012 and 7 September 2012 for the purpose of investigating into the alleged misconduct.  He did not show up in the first two interviews. He requested postponement of investigation and requested for being accompanied with a legal representative to attend disciplinary investigation.  The FSD did not object to the applicant’s request for a legal representative to assist him.

7.  On 25 February 2013, after 5 months of postponement, the applicant’s superiors decided to institute the Subject Disciplinary Proceedings.  After the Presiding Officer finalized framing the charges, the disciplinary hearing was scheduled to be held on 24 February 2014.  Briefing officers attended the applicant’s unit personally and informed the applicant of all the relevant information and documents for the disciplinary hearing.

8.  Between 24 February 2014 and 13 March 2015, 6 disciplinary hearings were scheduled, 5 of which was adjourned or suspended, as follows:

Date	Adjourned/Suspended/Heard
24.02.14	Adjourned because of the applicant’s absence
19.03.14	Adjourned because of the applicant’s absence
7.04.14	Suspended because of the applicant’s letter dated 25 March 2014 and the two medical certificates attached thereto
17.11.14	Adjourned because of the applicant’s absence
26.11.14	Suspended in the middle of the hearing because of the applicant’s request made at the hearing for a medical board to be convened
13.03.15	Heard in the absence of the applicant

9.  Subsequent to the suspension of the hearing on 7 April 2014:

(1)   From 14 April 2014 to 20 June 2014, the FSD proposed for 3 times to convene a medical board to investigate, inter alia, whether the applicant’s work performance and suspected misconduct was related to his health condition, and whether the applicant was fit to attend the Disciplinary Proceedings.  The applicant continued to give no response.

(2)   From 9 May 2014 to 3 July 2014, the FSD liaised with Kwai Chung Hospital (“KCH”) by multiple letters to ascertain the applicant’s mental and health conditions, and whether his conditions exculpated him from the alleged misconduct.  KCH refused to disclose such information without the applicant’s consent.

(3)   As such, the FSD decided to reactivate the Subject Disciplinary Proceedings and proceed on the basis of the available information, and rescheduled the hearing to 17 November 2014.

10.  On 26 November 2014, the applicant appeared at the hearing for the first time.  In the hearing, the applicant claimed that his absence from the previous 3 hearings was because he did not know about the scheduled hearings and “his letters were always stolen by others”.  The applicant also requested for a medical board to be convened. The hearing was immediately suspended.

11.  Having given due consideration to the applicant’s explanations, the Presiding Officer concluded that the applicant’s explanations for his previous absence were unreasonable, self-contradictory and unacceptable, a letter dated 25 February 2015 was issued to the applicant accordingly. 

12.  Regarding the applicant’s request to convene a medical board, on respectively 28 November 2014 and 3 December 2014, for 2 further times the Presiding Officer asked the applicant to return a proper and duly completed and signed consent form to convene a medical board.  The applicant returned none of the consent forms.  The FSD decided to resume the Subject Disciplinary Proceedings.

13.  By the said letter dated 25 February 2015, the applicant was informed that if he failed to attend again in the upcoming disciplinary hearing scheduled for 13 March 2015 without reasonable excuse, the Presiding Officer would follow the “General Guidelines for Handling of Hearing in Absentia Cases in Civil Service Disciplinary Proceedings” (“Absentia Hearing Guidelines”).

14.  On 11 March 2015, for the first time the FSD received a consent form for convening a medical board signed by the applicant dated 7 March 2015.  However, the FSD claimed that the consent form was incomplete, in that a medical board could not be convened until it was witnessed in person.

15.  On 13 March 2015,

(1)   The applicant called the Presiding Officer and said that he would not attend the hearing.  When the Presiding Officer warned him that he had had a record of 3 times absence in the past and the Presiding Officer would conduct the hearing in his absence in accordance with the Absentia Hearing Guidelines, the applicant simply said that he did not care and hanged up the telephone.  The Presiding Officer decided to proceed in the applicant’s absence. Contrary to the applicant’s later allegation, at the time, the applicant did not tell the Presiding Officer that it was not convenient for him to attend the hearing as he would like to have medical consultation.

(2)   At the hearing, the Presiding Officer decided that the 10 disciplinary offences were proved against the applicant, after properly calling witnesses to give testimonies and exhibits were submitted.  The Presiding Officer considered that the power of punishment that he had been delegated could not reflect the gravity of the offences and referred the case to the respondent on 14 March 2015.

16.  On 13 May 2015, the Presiding Officer submitted a report to the Director and elaborated in detail how the disciplinary hearing was conducted on 13 March 2015 in the applicant’s absence.  The Presiding Officer put forward his recommendation of dismissal without retirement benefits in accordance with FSD General Order 9-2(i)(a) for the Director’s consideration.  This report was inserted into the mailbox of and mailed to the applicant on 14 may 2015.

17.  On 16 July 2015, the Director determined to award the applicant the punishment of “dismissal without retirement benefits” for all charges.

C.   PRESIDING OFFICER ERRED IN NOT ADJOURNING THE PROCEEDINGS FOR A MEDICAL BOARD TO BE CONVENED

18.  On 26 November 2014, the applicant attended the hearing in person and submitted a written application for an adjournment and for a medical board to be convened in the following terms (in translation): “As my monthly treatment at the Government hospital does not seem to be effective, I am simultaneously seeking help from private specialist……. I am physically and mentally completely exhausted, and suffering from the effects of psychiatric medication.  I now sincerely request the Director of FSD to call for a medical board assessment first, under CSR 485.  I respectfully request that this internal disciplinary inquiry be adjourned in the meantime.”

19.  Meanwhile, the hearing was adjourned on account of his pleading “guilty” to each of the charges while disputing the facts.  His request for convening a medical board met with a repetition of the same requirement for him to sign the same consent form within 14 days failing which the hearing would continue.

20.  On 7 March 2015, the applicant signed the consent form and returned it to the FSD, leaving blank the column for the signature of the witness.  The signed form was received by the FSD on 11 March 2015, the details of which were stated in a memorandum of 18 March 2015.

21.  The consent form was rejected by the Presiding Officer, who further decided that disciplinary action should take precedence over convening a medical board for the reasons that (a) the alleged misconduct of the applicant may be serious enough to warrant a removal punishment; (b) there was no causation between the applicant’s illness and his misconduct; and (c) the disciplinary proceedings were at an advanced stage.  Accordingly, he decided to press on with the trial and declined to grant an adjournment for the medical board to be convened.

22.  The applicant’s claim, as set out in the AF86, is that despite his request made on 26 November 2014 for a medical board to be convened, and his return of a consent form dated 7 March 2015 signed by him for convening a medical board, the Presiding Officer erred in not adjourning the hearing on 13 March 2015 to allow a medical board to be convened.

23.  As submitted by the applicant, any argument by the respondent that the applicant’s refusal to sign was unreasonable has fallen away when the applicant returned a signed consent form to the FSD on 7 March 2015.  The respondent’s sole remaining objection is that the signed consent form was “incomplete” for want of the witness signature, and the applicant refused to rectify by returning to the Fire Station to sign again in front of his Unit Commander or Watch Commander.

24.  I agree that the respondent’s objection cannot stand because witness signature was not required by the FSD Guidelines.  Nor was it required by the Hospital Authority; nor was there any valid reason for it.  In the premises, the FSD’s requirement of it was arbitrary and unlawful.

25.  That the witness signature was not a requirement of the FSD Guidelines was accepted by the respondent’s counsel.  The respondent’s claim that the Hospital Authority would reject the consent form without a witness signature was without basis.  All that the Hospital Authority required was “a proper consent letter” for convening a medical board, and the “original/certified true copy of valid authorization of the above-named patient” or “voluntary express informed consent” for releasing the applicant’s medical record.

26.  The purpose stated by the respondent on affidavit evidence for requiring a witness signature was to allow the witness to ascertain and verify that the applicant understood the contents of the consent form, that the signature was authentic, and he signed it willingly.  And this was important because it concerned the applicant’s consent to disclose his medical records to the medical board.  I agree with the applicant that this makes no sense. 

27.  As this court noted during the hearing, since no qualification was stated, the witness can be any person and does not have to be a medically qualified person; how can this person ascertain the applicant’s mental condition?  The crux of the matter is that the court has to consider whether failure to provide a witness signature amounts to refusing to co-operate with the FSD for the convening of a medical board, under paragraph 2.10 of the FSD Guidelines.  In my view, the answer must be “No”.

28.  The respondent’s final resort was to assert that it was a normal requirement and a long time practice of the FSD, and that what the Director requires, the applicant as a subordinate must obey.  If he does not do so, then he is unco-operative. 

29.  I agree that this must be rejected as an arbitrary exercise of power.  Given that a witness signature was not a requirement of the FSD Guidelines or the Hospital Authority, and not justified by cogent reason, the Director’s making it a requirement, and then remaining inflexible, even if it meant that, contrary to the FSD Guidelines, no medical board would be held, must be regarded by the court as arbitrary and an abuse of power.

30.  The applicant further submitted that the Presiding Officer’s decision to proceed with the hearing on 13 March 2015 thus pre-empting the convening of a medical board was irrational and unlawful in that (a) his reasons for doing so was a misapplication of paragraph 2.13 of the FSD Guidelines, and (b) the material finding that there was no causation between the applicant’s illness and his misconduct – on which his decision was based – was without evidence.

31.  In this regard, the applicant submits that the Presiding Officer’s decision effectively pre-empted the medical board.  His decision was based on his finding, without evidence, that there was no causation between the applicant’s illness and his misconduct. As such, his decision was irrational and an error of law.  Moreover, in deciding not to adjourn, the Presiding Officer’s reasoning was based on a misapplication of the FSD Guidelines, and his decision to proceed was irrational and unlawful.

32.  Paragraph 2.13 of the FSD Guidelines gives guidance that the reasons (a), (b) and (c) may support a Unit Commander to decide to proceed with disciplinary action against an officer.  But, as stated at the start of paragraph 2.13, the guidance has application only “Where a medical board recommends invalidating a member with a disability who is alleged to have committed disciplinary misconduct….” [Emphasis added].  Thus paragraph 2.13 of the FSD Guidelines has no application without a medical board’s recommendation having been made, and even more so, without a medical board having been convened.  Under paragraph 2.13, the Unit Commander has to “take into account the advice of the medical board....”.  Medical advice is obviously necessary for deciding whether or not there is causation between the officer’s disability and his misconduct.

33.  In the absence of supporting medical evidence, the applicant correctly submits that the Presiding Officer had no basis for deciding that there was no causation between the applicant’s disability and his alleged misconduct.

34.  Further, the Presiding Officer’s consideration that the disciplinary proceeding was at an “advanced stage” was factually incorrect.  Despite the delays, the proceedings had not substantively advanced.  At that stage, plea had just been taken, and ruled to be a “not guilty” plea.  The trial had yet to start.  No witness had been called or documentary evidence produced.  No civilian witnesses were involved. A further adjournment for a short period was of little consequence.  In any event, even if the proceedings were at an advanced stage, the interest of fair hearing, particularly taking the applicant’s disability into account, would far outweigh any advantage to be gained by pressing on.

35.  Further still, the applicant’s right to a fair hearing was involved.  What fairness required depends on the circumstances of each case.  In the applicant’s case, as the Presiding Officer considered that his alleged misconduct may be serious enough to warrant a removal punishment, the applicant’s whole livelihood, and with it his mental health, were at stake.  The Presiding Officer’s refusal to adjourn at this stage would fall short of the requisite standard of fairness.

36.  The respondent’s argument against the above were: (a) those reasons were not the Presiding Officer’s, and he was merely reporting the views of DO(MG)1 Derek Chan; (b) the Presiding Officer did not apply paragraph 2.13 and the 3 reasons were independent of paragraph 2.13; (c) the finding that “there was no causation between [the applicant’s] illness and his misconduct” was not without evidence or irrational because it was a “negative” finding and simply meant that there was no evidence of causation between the applicant’s illness and his misconduct; and (d) the Presiding Officer had no authority regarding the convening of a medical board – that was for the FSD alone, his function as adjudicator was to apply the guidelines on hearing in absentia, and on those guidelines, since the applicant had been absent on more than 3 occasions without reasonable excuse, the Presiding Officer was entitled to hold that the applicant had waived his right to be present and proceed with the hearing in his absence.

37.  I agree with the applicant that the respondent’s arguments above contradict each other. Separately, as to (a), the respondent’s argument is plainly contradicted by the evidence of the Presiding Officer’s report to the Director where, after stating the 3 reasons as Derek Chan’s view, the Presiding Officer went on to say: “Having considered [Chan’s] views, I decided to proceed with the disciplinary hearing on 13 March 2015.”  This can only mean that he adopted the views suggested by Derek Chan as his own in making his decision not to adjourn 13 March 2015 hearing.

38.  As to (b), the similarity of the language of the 3 reasons to paragraph 2.13 makes it difficult to believe that there was no connection between the two.  No other source or explanation was given.  If they did not come from paragraph 2.13, how did they occur to the Presiding Officer out of the blue?

39.  As to (c), I agree that “there is no causation between X and Y” is a positive finding, and has to be established on evidence.  The statement that “there is no evidence between X and Y” is valueless if no search for evidence was ever made in the first place, and no decision relying on such a valueless “finding” could be considered cogent.

40.  I agree with the applicant’s submission that the finding that “there was no causation between [the applicant’s] illness and his misconduct” was not supported by any evidence.

41.  As to (d), the guidelines on hearing in absentia merely gives the Presiding Officer a discretion to proceed when a defaulter had been absent on 3 occasions without reasonable excuse.  It does not compel him to do so.  The Presiding Officer had power to decide to proceed or to adjourn.  To act as if he was bound to proceed would be allowing his discretion to be fettered.  Proceeding on 13 March 2015 meant pre-empting the medical board being convened, contrary to the FSD Guidelines.  The Presiding Officer knew that the FSD had already decided that a medical board should be convened in the applicant’s case, and all that was needed was the applicant’s consent to it. The applicant has returned a signed consent form.  Either he failed to take this material fact into account, or he decided to proceed in the face of the FSD Guidelines without good reason.  Either way, his decision would be Wednesbury unreasonable in the classic sense, or more correctly an abuse of power in the context of procedural fairness.

D.   WHETHER THE PRESIDING OFFICER ERRED IN PROCEEDING WITH THE DISCIPLINARY HEARING ON 13 MARCH 2015 IN THE APPLICANT’S ABSENCE, THEREBY VIOLATING HIS RIGHT TO A FAIR HEARING

42.  As held above, the Presiding Officer erred in failing to adjourn the disciplinary proceedings for a medical board to be convened on the applicant.  However, aside from that, I would agree with the respondent that the Presiding Officer’s decision to proceed with the hearing on 13 March 2015 in the applicant’s absence was justified in light of the relevant provisions in the Absentia Hearing Guidelines and the factual circumstances of this case.

43.  The relevant provisions in the Absentia Hearing Guidelines provide, inter alia, as follows:

(1)   Absentia Hearing Guidelines paragraph 2: “Where the accused repeatedly fails to appear at scheduled sessions of the hearing, the adjudicating authority may proceed to hear the case in his absence if it is satisfied that the notice (including subsequent written notices) requiring the accused’s attendance has been duly served on him and that the accused has no reasonable excuse for failing to appear”.

(2)   Absentia Hearing Guidelines paragraph 4: “In general, the adjudicating authority may proceed with the disciplinary hearing if it is satisfied that the accused has been absent for three times without any reasonable excuse”.

(3)   Absentia Hearing Guidelines paragraph 8: “If, after attending the hearing as required by the notice … the accused fails again to turn up at any subsequent session(s) without any reasonable excuse, the adjudicating authority may, having regard to all the circumstances of the case, consider hearing or continuing to hear the case in his absence if it is satisfied that the accused has been absent without any reasonable for a total of three times counting from the first scheduled session of the hearing”.

44.  As noted above, by the time when the hearing took place on 13 March 2015, the applicant has been absent for the fourth time.

45.  The applicant says that it was “unreasonable” for the Presiding Officer “not to accept his explanation as genuine and adequate”. In this regard, I agree with the respondent that it was entirely open to the Presiding Officer to have concluded that the applicant had been absent “for a total of three times without any reasonable excuse”.

(1)   The applicant alleged, inter alia, that he has never received any written notice requiring his attendance at the previous three hearings scheduled to take place on 24 February 2014, 19 March 2014 and 17 November 2014 respectively, saying that his letters were frequently stolen by others and that he only recently received the letter dated 17 November 2014.

(2)   I agree that the Presiding Officer was fully entitled to conclude that the aforesaid explanation was dubious and unreasonable for, inter alia, the following reasons: 

(a)   For the first scheduled hearing on 24 February 2014, the applicant had been informed of the hearing date by the Briefing Officer in person on 30 December 2013;

(b)   Apart from the aforesaid, upon the applicant’s request, the documents have been sent to him by mail on 30 December 2013 by, inter alia, registered post which also informed him of the hearing scheduled to take place on 24 February 2014;

(c)   In fact, the Presiding Officer’s various written notices requiring the applicant’s attendance at scheduled hearing were all sent to the applicant by, inter alia, registered post;

(d)   As a matter of fact, the applicant has replied to FSD’s letters in the past, showing that he did receive letters posted to him during the period, for example, the applicant’s letter dated 1 June 2014 which replied to FSD’s letter dated 29^th of May 2014 and quoted the reference number of that letter;

(e)   The Presiding Officer thus concluded (and was fully entitled to so conclude) that the applicant has in fact received the Presiding Officer’s various written notices requiring his attendance at scheduled hearings, and hence rejected the applicant’s said allegation as dubious and unreasonable.  

46.  In the premises, I agree with the respondent that the Presiding Officer’s conclusion that the applicant has been absent for a total of three times without any reasonable excuses was entirely justified and/or justifiable.  In any event, the applicant has plainly failed to show that such a conclusion was Wednesbury unreasonable. 

47.  In the circumstances of the present case, the Presiding Officer was plainly justified to proceed with the hearing on 13 March 2015 in the applicant’s absence, in accordance with the Absentia Hearing Guidelines.  

E.   WHETHER THE DISCIPLINARY PROCEEDINGS AGAINST THE APPLICANT WERE PROCEDURALLY UNFAIR

E1.   Medical advice

48.  The applicant says that the Director / Presiding Officer ought to have secured medical advice to ascertain his fitness: AF86 paragraph 65.

49.  However, as noted earlier above:

(1)   On 3 October 2011, the West Kowloon Psychiatric Centre certified that the applicant was mentally stable and mentally fit to resume his work duties. 

(2)   The alleged disciplinary offences which led to the Subject Disciplinary Proceedings happened during the period from January to July 2012.

(3)   Whilst the applicant has submitted a statement dated 5 September 2012 that he attended follow-up consultations with psychiatrists every month, he did not provide any relevant medical certificate/proof regarding his mental condition even upon FSD’s request (the one medical certificate which he provided with his statement certified him as suffering from ‘Diarrhoea’).

(4)   The FSD has not received any medical certificate regarding the applicant’s mental condition since his resumption of operational duties from 4 October 2011 until 28 March 2014, when the applicant submitted two medical certificates regarding his mood and mental condition, whereupon the disciplinary proceedings were suspended and the FSD considered, in light of those two medical certificates, that a medical board should be convened.

50.  In the circumstances, I agree that it was justified for the FSD to have commenced the Subject Disciplinary Proceedings in late 2013 against the applicant without first seeking advice from a medical board on the case.

E2.   Legal representation

51.  The applicant says that the Director / Presiding Officer ought to have afforded him legal representation: AF86 paragraph 65.

52.  I agree that there is no merit in this complaint either.

53.  First, whether there is a right to legal representation depends on the circumstances of the particular case.  There is no absolute right to legal representation under Article 10 of the Hong Kong Bill of Rights, and disciplinary tribunals possess the discretion to permit an officer to be legally represented where fairness so dictated: De Smith’s Judicial Review, at paragraph 7-074.  See also Chan and Lim, Law of the Hong Kong Constitution (2^nd Edn 2015) at paragraph 19.138.

54.  Secondly, as it turned out, this is not even an issue in the present case. 

(1)   When the applicant requested postponement of investigation and requested for being accompanied with a legal representative to attend disciplinary investigations, the FSD agreed to postpone the investigation and did not object to his request for a legal representative to assist him in the investigation.  However, the fact is that despite the postponement, the applicant was absent in all disciplinary investigations without giving any reason. 

(2)   After the commencement of the Subject Disciplinary Proceedings, the FSD in fact exercised its discretion to permit and approve the applicant’s request for legal representation.  At the hearing on 26 November 2014, it was the applicant who confirmed that he did not need a legal representative despite FSD’s approval. 

55.  The applicant now says that he was not legally represented “because of his lack of means”: AF86 paragraph 20.  However, even if he has had genuine concern over finance as he now alleges, he has already been informed that he could apply for salary advance, and also for Welfare Fund from the FSD.  Besides, at the hearing on 26 November 2014, when the applicant confirmed that he did not need legal representation, he did not indicate he had any financial concern as he now alleges.

56.  Thirdly, the FSD had no duty to provide legal representation to the applicant.  When all the opportunities had been afforded to the applicant for legal representation, he could not complain that he was deprived of legal representation.  There is no duty on the adjudicator to ensure the applicant must be legally represented, particularly when the applicant confirmed that he does not need one: Bikramjit Singh v Allan J Wyeth, HCAL 68/2012 (Judgment dated 16.08.2013), at paragraph 26.

F.   WHETHER PUNISHMENT OF “DISMISSAL WITHOUT RETIREMENT BENEFITS” IRRATIONAL IN PUBLIC LAW SENSE

57.  The applicant further complains that the decision of “dismissal without retirement benefits” was made (a) in the absence of reason and (b) irrationally.  I agree that both complaints are without merits.

58.  First, the Presiding Officer and the respondent both provided reasons for their decision to dismiss the applicant without retirement benefits.  The reasons have been clearly set out.  In particular, the decision was based on:

(1)   The specific nature of fire services, which is a “disciplined service to save lives and protect property” and have “great emphasis on teamwork which requires a high level of cooperation as well as high sense of team spirit”;

(2)   The gravity of the applicant’s disciplinary misconduct, which “unveiled the applicant has got no sense of discipline and habitually challenged the management”and shows “his blatant disregard of discipline”;

(3)   The serious impact of his misconduct to the FSD, in particular, causing “nuisance to his peers and seniors from time to time” and “the entire station personnel” and “the operational efficiency of the team has been impaired”;

(4)   Further, the respondent also considered the fact that “if the [FSD] did not show the determination to handle [the applicant’s] case lawfully and resolutely, FS members will lose confidence in the [FSD’s] governance on ‘Discipline and Conduct’”.

59.  The applicant has no basis to suggest that no reason was provided for the decision of “dismissal without retirement benefits”.

60.  Secondly, it is trite law that a disciplinary tribunal’s power to impose disciplinary punishment is discretionary in nature.  The court will not lightly interfere with that discretion unless it has been exercised unlawfully and/or unreasonably in a public law sense: Chow Kwok Leong v Secretary for the Civil Service, HCAL 103/2010 (Judgment dated 14.07.2011), at paragraph 11.

61.  As far as I can discern, the FSD has exercised its discretion within its limits.  The personal circumstances and the consequences of dismissal without retirement benefits were canvassed thoroughly, and the respondent’s decision to dismiss without retirement benefits was explained clearly.  I agree that the applicant has failed to demonstrate any basis for the court to interfere.

62.  In the circumstances, there is no merit in this ground of challenge at all.

G.   CONCLUSION AND DISPOSITION

63.  For the reasons stated in Section C (paragraphs 18 to 41) above, I hold that the Presiding Officer has erred in failing to adjourn the disciplinary proceedings for a medical board to be convened on the applicant.

64.  The remaining grounds relied upon by the applicant in this application for judicial review are dismissed.

65.  In the circumstances, I would grant the following relief:

(1)   A declaration that the Presiding Officer’s decision refusing to adjourn the Disciplinary Proceedings for a medical board to be convened on the applicant was unlawful.

(2)   An order of certiorari quashing the “guilty” finding of each of the disciplinary charges against the applicant.

(3)   An order of certiorari quashing the award of punishment of “dismissal without retirement benefits” against the applicant.

(4)   An order of mandamus requiring the respondent to convene a medical board on the applicant.

66.  Costs should follow the event and be paid by the respondent to the applicant.  Such costs shall be taxed, if not agreed.

67.  The above order as to relief in paragraph 65(2), (3) and (4), and the above order as to costs in paragraph 66 are nisi, and shall become absolute in the absence of any application within 21 days to vary the same.

68.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

69.  Lastly, I thank counsel for their helpful assistance to the court.