XCHRX PANG HON WAH and Others v. ATTORNEY GENERAL

1996, MP1215
MP1232
MP1233
MP1573
MP1574
MP1575
MP1576
(Consolidated)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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Background

1. The applicants were very lowly public servants in the Department of Housing. In 1994 and 1995, they were subject to disciplinary proceedings for being absent from work without leave or permission and for making false entries in attendance books. As a result of this, they were compulsorily retired or dismissed. In April and May 1996, they applied for leave to bring proceedings by way of judicial review. Leave was granted by Keith, J, who said that he had "not detected any significant or material difference between these cases" and two other cases I had dealt with in January and February 1996 (Cheung Sai To and Au Man Wah; MP 3367 and 3368 of 1995). Keith, J also extended the time in which the applications could be made.

Cheung's Case

2. In Cheung's case, I quashed the findings of the disciplinary committees and the decision of the Governor's delegate. I did this because there was a total failure to investigate whether or not the applicants in those cases had permission from their superior officers to be absent from duty, and whether or not their superiors knew that they made false entries in the attendance books. I found that these were "circumstances surrounding" the charges that the committees were expressly instructed to investigate.

The Present Application

3. The respondent now seeks an order that the leave granted by Keith, J be set aside on the grounds that there has been undue delay in making the applications, that good reasons for the delay have not been shown, that the granting of leave would be likely to cause substantial hardship to, or substantially prejudice, the rights of the respondent or would be detrimental to good administration, and, as always, that there has been material non-disclosure.

General

4. Because of the way these matters were argued, it is necessary, to some extent, to go into the merits of the applicants' cases.

5. It is quite clear that, during the relevant time, instances of absence from duty of very junior staff in the Housing Department, and making consequent false entries in attendance books, was rife. A total of 1171 officers were disciplined in respect of this behaviour; 769 receiving verbal or written warnings, 365 were reprimanded or severely reprimanded and 37, including the nine I have mentioned, were removed from the service by compulsory retirement or dismissal. In Cheung's case, Ms Dale Watson, who appeared for the Attorney General, correctly described the situation as "appalling".

6. In the light of these circumstances, the evidence and my comments in the earlier case, one might have thought that it would have been thought appropriate for the government, if it did not already know, to investigate and find out the extent to which absences from duty by very junior staff, with the consequent false entries in attendance books, was permitted, condoned or tolerated within the department. If there was a practice within the department to permit absences and false entries in attendance books, or to turn a Nelsonian eye in their direction, this, everyone should have appreciated, must have had a important bearing on the culpability of junior officers who followed the practice. Certainly, I would thought, someone might have thought that for 37 officers to lose their jobs, apparently without any warning, because they followed an established, although unjustifiable, practice might have been harsh.

7. I do not know if the disciplinary authority has undertaken this investigation. If it has not done so, it has not properly investigated the circumstances surrounding the alleged charges against those disciplined. If it has done so, and has chosen not to put the facts before the court, the same situation prevails; it cannot complain if I draw the inference that it has not properly investigated the circumstances surrounding the charges.

8. It cannot possibly be said that those responsible for disciplining the applicants did not had sufficient grounds to investigate the circumstances I have mentioned. We know that at least three of those sacked have specifically described the lax practices of the department, and others have hinted at it. But quite apart from this, I cannot be possible that it did not occur to some senior officer in the department to say "Just a minute. How is it possible for these people to be absent for such extended periods and so often without their superiors knowing about it? We must find out who allowed this to happen, and why."

9. Mr Chan says that I must not look at the matter in this way. He says I must consider each case individually, and, if a particular applicant did not raise the matter of this practice in the department, there was no obligation of the committees to investigate it. This is not so. The committees were only part of the disciplinary process. The committees were no more than fact-finding bodies. The Investigating Committee is required to make a report containing the record of the proceedings, the findings of fact and an opinion as to whether or not the facts amount to misconduct. This report goes to the Governor or his delegate. If that person is of the opinion that the officer has been guilty of misconduct, he may inflict such punishment as may seem to him to be just. This person may, after considering the report, require the Committee to make further investigations, to answer questions and ascertain facts. I do not know who this person was. He, or she, has chosen not to deal with the application for judicial review. Instead, Mr Law Wing Tak, an assistant director of housing, has filed an affirmation dealing with the applications. This is not satisfactory. I have said before that, when a person's decision is brought on judicial review, it is that person who should answer the complaint. It is only that person who can explain his decision, not some other person in the department concerned. As a result, I do not know if the person who "convicted" the applicants and imposed the punishment took into account the right factors and ignored the wrong ones. I do not know if that person gave any consideration to whether or not it was possible that an applicant's superiors led him into believing that his absence from duty would be condoned. Presumably that person was a senior officer in the department. He would have an overview of the whole mess that confronted the department. He would know that the situation was such that what had happened could not conceivably have happened without the superiors of the workers concerned knowing about it and that the absences could not have been allowed to continue over an extended period of time without the superiors in some way condoning it.

10. On this basis, in my view, Keith, J was correct in saying that the cases of these applicants were similar to those in Cheung's case.

Out of Time?

11. Mr Chan says that the applications for leave were well out of time, and, of course, they were. Leave should not be granted unless there is good reason for extending the period within which the application should be made. It should be noted that the law requires a "good reason" for extending the period, not "good reason" for the delay. All the applicants say that they did not think of applying for leave until my decision in Cheung's case came to their attention. The applicants applied for leave within three months, or within days of three months, from the date of my decision. Clearly, Keith, J thought that was good reason for extending the period, or he may have thought that the way in which the public service treats its junior employees was of public importance, and this also provided a good reason. I do not sit as an appellate body from the decision of Keith, J, and I do not think there was any sufficient material non-disclosure that would justify my interference with his decision.

Other Material Non-disclosure?

12. Mr Chan also complains that some of the applicants did not disclose to the ex parte judge that they had not raised the matter of absence with express or implied permission before the disciplinary committees. This is undoubtedly so, but it cannot be said that this was deliberate. What the applicants did or did not say before the disciplinary committees was a matter of record. The applicants cannot have hoped to conceal this. Keith, J gave leave because he thought the cases of the applicants were similar to the cases of applicants who had already been successful on judicial review, and, in my view, he was quite right to think so. Even if there were material non-disclosure, I exercise my discretion to allow the cases to proceed because I believe that justice demands this.

Prejudice?

13. It is argued on behalf of the respondent that there is prejudice because some of the supervisors of the applicants are not available because of the delay. This may be so, but the absence of some individual supervisors will not hamper an inquiry into the general practice in the department. That is what is of interest. What was the extent to which absences were tolerated or condoned, not whether a particular absence on a particular day was permitted?

Good Administration

14. Mr Chan accepts that, unless his case on this point is overwhelming, it is not appropriate to consider it at this stage. It is not, in my view, anything like overwhelming.

Result

15. In the result, I can find no case for setting aside the leave granted, and the respondent's application is refused. It seems, on the face of it, that the applicants are entitled to their costs. I make an order nisi that the respondent pay the applicants' costs.

(J.K, Findlay)

Judge of the High Court