LEUNG CHUN YIN v. SECRETARY FOR JUSTICE

HCAL 66/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 66 OF 2004

______________

______________

_______________

J U D G M E N T

_______________

 1.  On 29 April 2003, the Inquiry Committee (Committee) appointed under section 10 of the Public Service (Administration) Order found five charges proved against the applicant in a written report dated 29 April 2003 (the Report).  The charges were:

“	(a)	you were absent from duty without leave or permission on average two to three times a month each time for one to two hours (excluding one hour lunch break) between January and September 1996;
	(b)	you allowed members of your YA4 patrol team to absent themselves from duty on average two to three times a month each time for one to two hours (excluding one hour lunch break) between January and September 1996;
	(c)	you allowed LEE Kwok-keung, Workman I, to absent himself from duty on 8.10.1996;
	(d)	you endorsed the entries made by CHENG Tak-ming, Motor Driver, in the vehicle logbook of AM 3719 on 8.10.1996 although you knew or should have known that the entries regarding “time out/in”, “no. of passengers” and “details of journey” were incorrect;
	(e)	you endorsed the following entries made by KUNG Chin-leung, Motor Driver, in the vehicle logbook of AM 2495, which you knew or ought to have known that they were incorrect:

Date	Relevant entries
14.8.1996	Time Out: 0905 hrs; No. of passengers : 8
16.8.1996	Time Out: 0920 hrs; No. of passengers : 4
23.8.1996	Time Out: 0910 hrs; No. of passengers : 8
27.8.1996	Time Out: 0910 hrs; No. of passengers : 8”

2.  On 21 April 2004, the Permanent Secretary For Housing, Planning and Lands (Housing), in exercise of the authority delegated from the Chief Executive and on the advice of the public service commission, directed that the applicant be “compulsarily retired…..”. 

3.  The charges arose out of the applicant's performance as a housing officer in the Squatter Control (Shatin) Office (SCSO) from 1 January 1996 to 31 October 1996.

4.  As housing officer, the applicant was the leader of a patrol team, which typically would comprise an artisan and 2 workmen 1.  The team of which the applicant was the leader was required to carry out extensive patrol duties in the areas for which he was responsible.  Government transportation was provided, in this case, AM 2495 and a motor driver.  At the material time, the designated driver was Ng.  However for leave and administrative or operational reasons Ng would be relieved by other motor drivers as required.  In August 1996 the relief driver was Kung Chin Leung.

5.  In view of the complaint about the delay detailed explanation was given regarding the time taken in relation to this disciplinary proceedings and it is necessary for me to go into the events which led to the decision of 21 April 2004 in some detail.  

6.  On 10 October 1996 the applicant together and 62 other staff members of the SCSO were arrested by the ICAC.  They were released unconditionally after they had been interviewed under caution. 

7.  In August 1998, the ICAC with the advice from the ICAC Operations Review Committee (ORC) decided not to lay any criminal charges against any of them. 

8.  On 5 August 1998, the ICAC informed the Housing Department (HD) that no further investigation would be made and no criminal charges would be laid against the applicant.  It was the normal practice of ICAC, not to release details of the investigation before completion of the investigation and the endorsement of the ORC.

9.  Although the investigation revealed no evidence of corruption, there was evidence of widespread malpractices in SCSO including unauthorised absences, making incorrect entries in vehicle logbooks and punching attendance cards for others, etc.  The ORC report was supplied to HD and the report contained a summary of the investigation as well as all the interview records/statements obtained by the ICAC.  They were supplied to assist HD to decide whether any disciplinary or administrative action should be taken.

10.  In September 1998, HD requested the ICAC to return documents, such as staff attendance cards, vehicle logbooks etc which had been seized by the ICAC.  They were returned in about October 1998.      

11.  I do not believe there was any delay between October1996 and August 1998.  For obvious reasons the ICAC would not release details of the investigation until after a decision had been taken not to prosecute. 

12.  In September and November 1998, HD requested the Immigration Department to conduct departure/arrival movement check on the 60 odd staff including the applicant.

13.  The applicant and the other officers were informed by HD of the allegations of misconduct against him and he was invited by letter dated 23 March 1999 to submit an explanation on or before 7 April 1999.  I do not believe there has been any undue delay up to this stage.

14.  From July 1999 onwards HD referred 48 cases by batches to the Department of Justice for advice whether there were prima facie cases of misconduct and whether the drafted charges were in order.

15.  Then following advice from the Department of Justice which were received in October 1999 and November 1999 HD invited the applicant to give information in relation to the alleged misconduct of some of his subordinates.  In response, the applicant submitted his replies on 8 January 2000, 18 January 2000 and 22 January 2000. 

16.  Thereafter, in October 2000, HD referred by batches all the cases together with the legal advice and relevant information to the Secretariat on Civil Service Discipline (The Secretariat) for examination . The Secretariat examined the cases and requested HD to collate more evidence.  In the interim, several meetings between the Secretariat and HD were held to discuss how to take the cases forward.  In September 2001 revised recommendations were made by HD to the Secretariat.

17.  On 1 December 2001, the Secretariat instituted formal disciplinary proceedings on a pilot case which had hitherto been considered to be not pursuable.  The pilot case was concluded successfully.  Then HD and the Secretariat proceeded with 39 formal disciplinary cases arising out of the same incident. 

18.  On 1 November 2002, the Secretariat informed the applicant that formal disciplinary action under section 10 of the Public Service (Administration) Order would be conducted against him. 

19.  The period between 23 March 1999 and 1 November 2002 requires careful examination.

20.  R v Chief Constable of the Merseyside Police ex parte Calveley [1986] QB 424 and R v Secretary of State for the Home Department ex parte Sinclair [1992] Imm AR 293 are authorities that undue delay in disciplinary proceedings resulting in prejudice may lead to the quashing of the disciplinary proceedings. 

21.  As explained by Chan Kim Keung, a senior executive officer holding the post of Senior Executive Officer/Staff Management (1) in HD, in his third affidavit on behalf of the respondent, the examination of statements, records and collation of evidence to put together the large number of disciplinary cases for this incident were extremely labour intensive.  In view of the large number of staff involved and the volume of evidence required to be examined, as well as the need to maintain broad relative consistency and fairness to staff who committed similar misconduct, HD had engaged additional staff including two Executive Officers, in addition to the permanent team of two officers, to undertake the work.  HD had reported to and kept the Secretariat informed.  He said that action had been taken as expeditious as possible to take forward the cases with the available the resources.

22.  I also took into account what Kwok Wing On, a Chief Executive Officer (Discipline Secretariat) (1) of the Civil Service Bureau said in his second affirmation:

“

10.

The speed at which the SCSO cases were processed was not due to the Administration sitting on the job or inefficiency of SCSD.  The SCSD had done its utmost to deal with the cases as expeditiously as possible.  In addition to the difficulties mentioned above, there was also the constraint of manpower resources.  The SCSD is a small set up with an establishment of 9 case officers to process all formal disciplinary cases from a total of 82 departments/bureaux/offices throughout the civil service.  There is now produced and shown to me an organization chart of the SCSD as at 1.1.2002 marked as exhibit “KWO-6”.  The set up of the SCSD and its establishment of case officers have remained unchanged from year 2000 to the present.  It can be seen from the chart that there were only 2 case officers (i.e. SEO(DS)(2) and EO(DS)(2) responsible for processing all formal disciplinary cases from HD and 10 other departments/bureaux/offices.  The already stringent manpower was further stretched in having to deal with the influx of the 61 SCSO cases.  The vast majority of the cases were referred to SCSD in 2002, together with the findings of HD’s preliminary investigation and the evidence available.  When it became apparent that the large number of staff involved in the SCSO incident, coupled with the complexity in processing the cases was more than SCSD could cope with, an Executive Officer I was deployed from HD to SCSD as an additional case officer since October 2002 (until March 2004) to help process the SCSO cases on a full-time basis.  In addition, special and urgent arrangements were made for other officers from HD and within SCSD to be mobilized to act as Assisting Officer in the inquiry hearings of the SCSO cases as and when necessary.  The SCSD had resorted to all conceivable means to expedite the processing of the SCSO cases.  It must also be mentioned that while the SCSD was processing the applicant’s case, it concurrently had to deal with about 47 other SCSO cases referred to the SCSD in 2002.  There is now produced and shown to me copy of a table showing the progress of the 61 SCSO cases as at 28.12.2004 marked exhibit “KWO-7”.  It can be seen that the time required to process a Housing Officer case is on average longer than that for a junior staff case.”

23.  Here, having regard to the unusual circumstances of this case and the explanation given I have come to the conclusion that the respondent has not been guilty of undue delay. 

24.  On 21 November 2002, the chairman of the inquiry committee invited the applicant to attend the inquiry on 11 and 12 December 2002.  The hearing concluded on 29 April 2003.  The applicant was informed by letter dated 5 June 2003 that the charges had been found proved against him and that he had been found guilty of misconduct.  He was invited to makes submissions and representation on the punishment which he did by a letter of mitigation dated 30 June 2003.  On 21 April 2004 the order of compulsory retirement was made. 

25.  As explained in the second affirmation of Kwok Wing On dated 3 January 2005, the hearing had to be adjourned to April 2003 because a witness, Mr Kung Chin Leung, was hospitalised for four months from December 2002 to March 2003.  There was no undue delay here.

26.  Also an exceptionally long time of 10 months was taken over the punishment because the Secretariat and HD could not reach a consensus on the punishment.  HD initially held radically divergent views from the Secretariat and had taken extraordinary action in making submission to the Public Service Commission and the Chief Executive to argue for a non-removal punishment for the applicant, thus substantially protracting the process.  I am also of the opinion that there was no undue delay here.

27.  Moreover I'm not satisfied that the applicant has suffered any substantial prejudice as a result of any delay.  The prejudice relied on is the fading of memory because of the lapse of time.  It was said that because of the lapse of time the applicant had been unable to recollect specific details.  The applicant did not give evidence at the inquiry and that was said to be prima facie evidence that he was unable to do so because of the delay.  It was also said that he was prejudiced because Chan Chi Keung (witness No. 3) had said: “that for lapse of time, it was difficult for him to recall specifics and details” and that Kung Chin Leung (witness No. 10) had similar difficulties.  He said: “due to long time lapse and the ill-health he has suffered in recent months, he could not remember the details in relation to his work in SC/Shatin and the details of the evidence he gave during ICAC interviews”.  It is also said that one the witnesses Ho Kwok-sang refused to answer any of the questions put to him.  These witnesses were said to be the most important witnesses to the applicant’s defence.

28.  However when I asked Mr Boyton (who appeared for the applicant) to address me on the significance of their evidence to the defence he was unable to explain their significance. 

29.  I will consider the charges in turn and the basis on which the Committee found the charges proved against the applicant.

30.  Charge (a) is that the applicant absented himself from duty without leave or permission on average two to three times a month each time for one to two hours (excluding one hour lunch break) between January and September 1996.  It is quite clear that in relation to this charge the most material evidence relied on by the Committee was the applicant’s admission to the ICAC on 10 October 1996.  This is what the Committee said in para. 38 of the Report:

“

38.

Mr Leung’s admission in the ICAC interview conducted on 10 October 1996 is material.  There he was not specific about the time of the absence, but his admission is clear and specific as to the frequency (two to three times a month) and duration (two to three hours each time) of absence and as to what he would do (attending to private business) during those periods of absence.  There is no evidence that he has obtained permission for this occasional but regular absence.  The Committee also noted, as described in paragraph 10(d), there is no provision for extended lunch breaks even for operational or field staff.  Having considered evidence available, the Committee considers that there is sufficient evidence Mr Leung is guilty as charged.

31.  According to Mr Boyton because of the lapse of time the applicant was prejudiced in his ability to challenge the tactics of the ICAC officers who obtained his statements from him on 10 October 1996. 

32.  But as Mr Clifford Smith (who appeared for the respondent) submitted the applicant had said in his letter dated 8 April 1999, that he had difficulty in recollection.  Thus, Mr Smith submitted that the further passage of time made little or no difference.

33.  The applicant has not satisfy me that the delay has prejudiced his ability to challenge the statement that he made to the ICAC.

34.  The evidence of the witnesses named in para. 27 above were also relevant to this charge.

35.  In the case of Chan Chi Keung who was Workman 1 it is correct that according to para. 18 of the Report “when asked of the details of his work back in 1996, he said that for the lapse of time, it was difficult for him to recall specifics and details.”  But in relation to his statements to the ICAC, he said: “he had been under stress and trepidation for ICAC's sudden action, but he had not been under duress and he has spoken the truth at the interview.”  According to Chan Chi Keung:  “when the applicant called it a day earlier than the normal time, they (the team members) would do their own errands and would not return to the office because there would not be anything for them to do.  They would return to the office for time-clocking off at the end of the day.  This took place once or twice a week.” 

36.  As for Mr Ho Kwok-sang it is correct that he refused to answer any questions.  But there is nothing to show that had the disciplinary inquiry taken place earlier he would have been willing to give evidence.  Nor that that his evidence would have been favourable to the applicant. 

37.  As for the evidence of Mr Kung the motor driver, he told the committee that “due to the long time lapse and the ill-health he has suffered in recent months, he could not remember the details in relation to his work in SC/Shatin and the details of evidence he gave during the ICAC interviews.”  However “upon questioning, he however confirmed that, although he had been shocked and confused as other colleagues when taken to ICAC for interview on 10 October 1996, he had not been under duress and had been truthful in giving its evidence to ICAC.”  Para.21 of the Report.

38.  Mr Kung and Mr Chan gave evidence before the Committee and were available to be cross-examined.  I am of the opinion that the applicant has failed to prove that he had been prejudiced by the lapse of time.

39.  I turn to charge (b).  As the Report showed charge (b) actually followed on from charge (a):

“

40.

As per the deliberations set out in paragraphs 36 to 39 above, it has been established that Mr Leung has absented himself without leave or permission during the period January to September 1996, averaging two to three times a month.  Doing this he released his patrol team, including the driver, allowing to go off without proper arrangements.  As discussed in paragraphs 10(b) and 10(c) above, Mr Leung, has the supervisory responsibility over his patrol team members and the driver of the government transport assigned to carry the team for the purpose of field work or patrol duties.  There is no evidence that he has given his patrol team members and the driver any official assignments after the release nor has he made any arrangements, including informing or coordinating with any parties or officers as appropriate in SC/Shatin for them to be under proper control or supervision or for them to undertake other duties. He said he would not know what they would do during these few hours (Annex 2.10: Ans. 11).  There is no record in the short leave register (Annex 2.29) of SC Shatin/Central showing the taking or granting of any short leave, including sick leave and leave for medical appointments.  In the same manner that he absented from duty himself, he has allowed these members to be absent form duty.  In the circumstances, he did not performed his supervisory responsibility that was required of him.  The Committee considers that there is sufficient evidence that Mr Leung is guilty as charged.

40.  I turn to charge (c).  Mr Lee had admitted that he was absent from duty on 8 October 1996 between 10:40 a.m. and 4 p.m. of the day.  The applicant first said that he had never given permission to Mr Lee to leave on 8 October 1996 (see his letter of 22 January 2000) and then later he said that he agreed to release him because he was sick.  In his statement to the ICAC he said Mr Lee had taken “French leave”.  Charge (c) was dealt with in para. 41-44 of the Report.  I do not believe the applicant has shown that he had suffered any prejudice because of the lapse of time.

41.  Charge (d), this also followed from charge (c).  This was dealt with in para. 46 of the Report.  I will not go into any detail, suffice for me to say that no question of recollection comes into this at all.  Mr Boyton did not deal with this charge at all.  I would only say that there is nothing to show that the applicant had been prejudiced at all.

42.  Lastly, charge (e) there were a total of seven entries:

Date	Relevant entries
14.8.1996	Time Out: 0905 hrs; No. of passengers : 8
16.8.1996	Time Out: 0920 hrs; No. of passengers: 4
19.8.1996	Time Out: 1400 hrs; No. of passengers : 8
21.8.1996	Time Out: 1405 hrs; No. of passengers : 8
23.8.1996	Time Out: 0910 hrs; No. of passengers : 8
	Time Out: 1400 hrs; No. of passengers : 8
27.8.1996	Time Out: 0910 hrs; No. of passengers : 8

In relation to three of them the applicant had not been found guilty.  In relation to the other four they were supported by ICAC surveillance records on the movement of the vehicle AM 2495.  And this charge was also admitted by Mr Kung when he was interviewed by the ICAC on 23 July 1996.  Again there is nothing to show that the applicant's defence to this charge was affected in any way by the delay.

43.  I turn to consider other submission of Mr Boyton.

44.  The applicant relies on section 4(1)(a) of the Limitation Ordinance, Cap. 347.  That is because the applicant was not formally notified of the charges until more than six years after the incident.  According to section 4(1)(a) no action founded on a simple contract shall be brought after the expiration of six years from the date on which the cause of action accrued.  But the disciplinary proceedings has nothing to do with section 4(1)(a).  It is not an action within the meaning of section 4(1)(a). 

45.  Mr Boyton also argued that the respondent’s failure to adhere to the Limitation Ordinance was a breach of article 10 and 11 of the Hong Kong Bill of Rights.

46.  Article 11 was relied on for the proposition that the applicant was entitled to be dealt with without undue delay.  Article 11 has no direct application.  It is concerned with rights of persons charged with or convicted of criminal offences.  Article 10 was relied on.  I do not believe the inquiry was “the determination of any criminal charge against him, or of his rights and obligations in a suit of law …”.  He was entitled to a fair hearing.  I do not regard legal representation to be essential to fairness.  There are statutory tribunals where no legal representations is permitted, for example, the Small Claims Tribunal and the Labour Tribunal.  In those tribunals one could say that it was in order to be fair that no legal representation is allowed.

47.  But Mr Boyton also relied on Article 35 of the Basic Law which provides:

“	Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.
	Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.”

He argued that the applicant was entitled to legal representation.

48.  The restriction on legal representation in regulation 8(3) of the Public Service (Disciplinary) Regulation (made by the Chief Executive under section 21 of the Public Service (Administration) Order) was adapted from regulation 8(3) of the Disciplinary Proceedings (Colonial Regulations) Regulations (made by the Governor “in exercise of the powers conferred by Colonial Regulations 56, 57 and 65 …with the approval of the secretary of State”).  Section 8(3) of the Public Service (Disciplinary) Regulation provides:

(3)	The officer may be assisted in his defence by -
	(a)	another public servant, other than a legally qualified officer, who may be a representative member of a staff association represented on the Senior Civil Service Council; or
	(b)	such other person as the Chief Executive may authorise.

49.  In Fong Hin-wah [1985] HKLR 332, Mayo J upheld a decision by the Investigating Committee under the Colonial Regulations to refuse legal representation.  Mayo J (as he then was) emphasised that the Investigating Committee was not exercising a legal function but was a fact finding body and none of the members had legal qualifications.  The officer presenting the case was not legally qualified and he added (p.336):

“	I am of the opinion that the presence of lawyer would have been incongruous in the context of the disciplinary hearing.  The proceedings were of an informal nature and the Committee was not equipped to deal with legal submissions or arguments.”

50.  I have been referred to Dr Ip Kay Lo Vincent v Medical Criminal of Hong Kong (No. 2) [2003] 3 HKC 579, A Solicitor v The Law Society of Hong Kong (CACV 302/2003, 18 February 2004) and New World Development Co. Ltd & Ors v The Stock Exchange of Hong Kong Ltd [2004] 2 HKLRD 1027 on the meaning of “court” in Article 35.  In Ip v Medical Council, Cheung JA (with the concurrence of Burrell J) said:

“	9.	Without deciding more than it is necessary, my view is that the word ‘courts’ extend to statutory tribunals like the inquiry of the Council which is established by s. 21 of the Medical Registration Ordinance (Cap. 161) (the Ordinance) with the procedures being governed by the Medical Practitioners (Registration and Disciplinary Procedure) (the Regulation).
	10.	The inquiry has to make decisions according to legal rules and principles.  The decision of the inquiry affects the rights of the parties.  A medical practitioner subjected to the inquiry faces severe penalties such as having his name removed from the General Register.  This is a situation where legal representation is most required.”

51.  I am bound by those observations.  But as Hartmann J has pointed out:

“

47.

Cheung JA was careful not to lay down a comprehensive definition of what constitutes a court in terms of art. 35, restricting the ambit of his findings to no more than was necessary to determine whether the Medical Council, a body formed under statute and given wide-ranging disciplinary powers in terms of that statute, including the power to suspend or remove registered medical practitioners from practice, was a court in terms of the article. He restricted his findings in this way because he had not had the benefit of full argument on the subject.  Indeed, it appears that no authorities relevant to the question were brought to his attention.”

52.  Here, the establishment of the Committee under the Public Service (Administration) Order was an exercise of executive power under Article 48 of the Basic Law.  As Mayo J said it was a fact finding today.  It has no power to punish.  Also Article 103 of the Basic Law provided that “Hong Kong’s previous system of … discipline, … shall be maintained…”.  For these reasons, I do not believe Article 35 was meant to apply to the Committee, hence, it cannot be a court within the meaning of Article 35.

Punishment

53.  Mr Boyton submitted that the decision to “compulsorily retired” “might well have been reasonable (i.e. in the public interest) but for the delay”.  I have held that there was no undue delay.

54.  I refer to para. 26 above.  It is clear it was a decision which was arrived at after careful deliberation.

55.  In any event, I do not believe I can interfere with the decision.  It has not been shown to be unreasonable.

56.  The application is dismissed.

Costs

57.  I made an order nisi that the respondent is to have the costs of the application to be taxed if not agreed.