Chan Tak Shing v. Chief Executive of the HKSAR

CACV 270/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 270 OF 1998

(On appeal from AL No. 25 of 1998)

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This appeal (which has been exceptionally well argued on both sides) is an appeal from an order of Findlay J. made on 15 September 1998, whereby the judge dismissed an application by the appellant police officer ("the officer") for a judicial review of a decision of the respondent Chief Executive ("the CE"), made pursuant to section 12 of Executive Order No. 1 of 1997, to require the officer, in the public interest, to retire from the public service. This being a judicial review, not an appeal, the court is not, of course, concerned with the merits of that decision; but the officer complains of a procedural irregularity, in that the CE failed to follow the procedure laid down in section 12, and of procedural unfairness, in that the CE had before him when making his decision some comments said to have been made by the Commissioner of Police ("the CP") upon the representations made by the officer, pursuant to the provisions on that behalf contained in section 12, being comments which had not been disclosed to the officer, and so comments to which he had not had an opportunity to reply. (Other points taken by the officer at an earlier stage are not now pursued.) The judge having rejected the officer's complaints, the officer now appeals.

Section 12 of Executive Order No. 1 of 1997

2. Sub-sections (1) and (2) of section 12, under which the CE took his decision here, substantially reproduce Regulations 59(1) and (2) of Part I (relating to public officers) of the Colonial Regulations in force here before the resumption of sovereignty by the People's Republic of China (section 22 of the Order provides for what I may summarise in a familiar phrase as "a smooth transition" between those Regulations and the Order).

3. Section 12(1) and (2) read as follows :-

"12. Retirement in the public interest

(1) The Chief Executive may, at any time if it is represented to him that the retirement of an officer is desirable in the public interest, call for a report from the head of any department in which the officer has served. The officer shall be informed of the grounds on which his retirement is contemplated under this section and be given an opportunity to make representations.

(2) The Chief Executive may, upon a consideration of the report and of representations submitted under subsection (1), require the officer to retire from the service, if he is of the opinion that, having regard to conditions of the public service, the usefulness of the officer thereto and all other circumstances of the case, the termination of the officer's service is desirable in the public interest and the officer's service shall accordingly terminate on such date as the Chief Executive may specify."

The facts

4. By a minute dated 15 January 1998 issued in the name of D.W. Pescod, Deputy Secretary for the Civil Service, it was represented to the CE that the retirement of the officer was desirable in the public interest, on the grounds that he had been involved in a robbery (the details of which are for present purposes immaterial) and that the CP had lost confidence in his integrity as a police officer. This minute was submitted to the CE together with a number of annexures, including (1) details of the robbery and police investigations; (2) a letter dated 15 August 1997 from the Secretary for the Civil Service to the officer, stating that consideration was being given to requiring him to retire and explaining why; (3) an answer from the officer dated 8 September 1997, containing his comments and representations upon the letter of 15 August 1997, denying his alleged involvement in the robbery; and (4) an undated, unaddressed and unsigned document headed "Comments on Representations by [the officer]".

5. On 1 February 1998, the CE approved the proposal contained in the minute that the officer be retired in the public interest on the ground that the CP had lost confidence in the officer. The CE did so without calling for any such "report" as is mentioned in section 12.

The first issue - was there any procedural irregularity?

6. It is said for the officer that without first calling for such a "report" as is mentioned in section 12 the CE was not entitled to require the officer to retire from the public service. But that is not the effect of the section, under which the CE "may" (not "must") call for such a report. If the CE does call for such a report then no doubt he is required by section 12(2) to consider it, together with the representations made under section 12(1). But in a case such as this where so far as the evidence goes, it seems that the officer has served only in one department (in this case the Police Department) and no other and where as here the representation to the CE that the officer be required to retire from the public service originates with the head of that same department, there can be no point in the CE's calling for any such report. Section 12(2), properly construed, must be read as follows : "The Chief Executive may, upon a consideration of any such report and of representations [etc.]"; so that, if there is no such report, because the CE, seeing no point in it, has not called for one, he (the CE) may proceed on the basis of the representations made to him alone. The judge below, as I understand his judgment, was of the same opinion.

The second issue - was there any procedural unfairness?

7. The case for the officer in this connection is that it was unfair for the CE to have had before him not only the representations made on behalf of the CP and the officer's representations in answer, both of which the CE is expressly required by section 12 to consider, but also the undated, unaddressed and unsigned document to which reference has already been made headed "Comments on Representations by [the officer]". The provenance of this document was not established by the evidence. But, whatever its provenance, it was thought fit, by the author of the minute, to lay it before the CE. It now becomes necessary to add something about its content of this document. It is a detailed and apparently convincing refutation, point by point, of the matters raised in the officer's written representation of 8 September 1997 (though it should be recorded that it adds no new ground of complaint against the officer and it includes no new facts). If (as would seem appropriate) the representations made in the letter of 15 August 1997 from the Secretary for the Civil Service are treated as a submission in support of the recommendation made to the CE and the representations made in the letter of 8 September 1997 from the officer are treated as a submission in answer, the undated, unaddressed and unsigned document is in effect a submission in reply. The officer complains that no provision is made in section 12 for such a submission in reply; the material placed before the CE should, he says, have been limited to the submissions in support, and in answer, for which section 12 does provide. But this may be too narrow a view. Section 12 does appear to treat the officer as the one who has the last word; what the CE has to consider is "the representations submitted under sub-section (1)", and these are first, the representations in favour of a decision requiring the officer to retire and secondly, the representations of the officer against the making of such a decision. However, there would seem to be no procedural unfairness in a case in which a submission in reply is shown to the officer and he is invited to make, if so advised, a submission in rejoinder, before the decision is taken. This would preserve the apparent intent of section 12, to give the officer the last word. But in fact, the officer here was not given any opportunity to consider the submission in reply, and so did not have the last word. The conclusion is inescapable : this was unfair. The CE had before him, in the form of the submission in reply, a document calculated to work to the prejudice of the officer's case, a document (whatever its provenance) which the officer had not been shown and with the content of which he was given no opportunity to deal. The fact that the document contained no new ground of complaint against the officer and no new facts makes no difference. Nor does the fact that the officer knew perfectly well what was the case made against him. No person with any power of adjudication may hear evidence or (as here) "receive representations from one side behind the back of the other" : see Kanda v. Government of Malaya [1962] AC 322, per Lord Denning at p.337. As Lord Denning went on :

"The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough."

Conclusion

8. The author of the minute fell into error in laying before the CE a submission in reply which the officer had not been shown and with which he was given no opportunity to deal. The submission in reply was obviously calculated to work to the officer's prejudice. Whether it did or did not achieve that object is immaterial. Although the author of the minute may well not have realised it, what he did was unfair to the officer, and on that ground the officer's appeal must be allowed and the decision of the CE quashed.

Rogers, J.A. :

9. I agree.

10. I would add that having considered the "Comments on written representation by (the Officer)" it is clear that this was potentially an influential document in the decision making process. That is all the more so because the points which are made in that document appear to be cogent. Whilst the document raises no new facts, it does repeat arguments. Furthermore and probably equally seriously, it reaches conclusions such as "This is an unbelievable claim and casts serious doubt on (A) credibility as a witness. This is significant because (the Officer) has named (A) as his alibi at the time of the robbery." And later "The fact is, he was asked to account for the movements of the car prior to the robbery and every account that he has given, including this one has proved to be either false or not plausible."

11. The Officer was given no opportunity to deal with this document. It seems inevitable therefore that it can be said that the procedure was unfair.

12. Nevertheless, I would add that in the circumstances of this case, if the Commissioner of Police remains of the view that he has lost confidence in the officer, there seems to me to be no reason why the procedure could not be put in process again, hopefully avoiding the pitfalls which have arisen on this occasion.

Mortimer, V-P:

13. I have had the opportunity of reading both the earlier judgments in draft. I agree with them but as we are differing from the judge I would add a few remarks of my own.

The first issue - was there any procedural irregularity?

14. As Godfrey JA has pointed out, the Chief Executive's decision was taken under s.12 of the Executive Order No. 1 of 1997. Section 12(1) provides that

"The Chief Executive may ... call for a report from the head of any department in which the officer has served. ..."

It gives the Chief Executive a discretionary power to call for the report. Section 12(2) provides that

"The Chief Executive may, upon a consideration of the report and of representations ... require the officer to retire ..."

and makes a consideration of the report a condition of the exercise of the power to require the officer to retire. Therefore, Mr Dykes SC contends that as the Chief Executive did not call for a report and did not consider such a report, he exercised the power unlawfully.

15. This section is concerned with the power to order retirement in the public interest. Although it has a serious effect, it is not penal. If Mr Dykes is correct, the two subsections are in conflict. The first gives a discretionary power to call for a report and yet the second deprives the Chief Executive of his powers if he fails to do so and to consider it.

16. In cases such as the present, calling for a report would be pointless as the officer has only worked for one department in recent years. Further, on a true construction, I do not think the two subsections are in conflict.

17. Subsection (1) clearly provides a discretion whether to call for a report. If the Chief Executive does so, he must consider it before he exercises his powers under subsection (2). But, it is only necessary for him to consider a report if he has called for one. I agree with Godfrey JA's construction that the true meaning of subsection (2) is that the Chief Executive must only consider "any such report" before exercising his powers.

The second issue - was there any procedural unfairness?

18. Section 12 above requires the Chief Executive to consider any report he has called for and the representations submitted under subsection (1). This does not preclude the Chief Executive from considering other documents but if he does so, he must obey the rules of natural justice and be fair to the parties. In this case, had the Chief Executive considered only the documents specified in subsection (2), there could have been no criticism.

19. The officer's representations were placed before the Chief Executive through the Commissioner of Police. The undated, unaddressed and unsigned document "Comments on Representation by [the officer]" was produced and put before the Chief Executive in circumstances which are unknown. It is unlikely that this document was intended to be laid before the Chief Executive - such a document would have been addressed more formally.

20. In fact, the document raised no new points but it is a comprehensive rebuttal point by point of all the officer had advanced in his defence. It unquestionably supported the case against him. He was given no opportunity to see it and make further representations if he saw fit. It was put before the decision-maker behind his back. It cannot be ignored as irrelevant or devoid of effect. Its whole purpose was to urge a decision against the officer. In these circumstances, although there was no intention to be unfair, the failure to provide the officer with a copy and to give him a chance to reply was unfair and a breach of the rules of natural justice.

Conclusion

21. For these reasons I also would allow the appeal and quash the Chief Executive's decision. There is no reason of which I am aware why a decision should not be re-taken provided a fair procedure is adopted.

22. The consequence is that the appeal is allowed. The decision of the Chief Executive is quashed with an order nisi for costs against the Chief Executive.