In re Chi Hing CHUA, Anthony

IN THE COURT OF APPEAL

1992, No. 180
(Civil)

___________________

________________

J U D G M E N T

________________

Sir Derek Cons, V.-P.:

1. Mr. Anthony Chi Hing Chua was for some time a dispenser and then pharmacist in the Hong Kong civil service. On 20th May 1992 he was compulsorily retired, following the adverse report of an investigating committee appointed by the Secretary for the Civil Service under powers contained in Colonial Regulation 57 and delegated to him by the Governor. On 2nd November Mayo J. refused Mr. Chua's leave to apply for judicial review and on 4th December this Court dismissed Mr. Chua's appeal from that refusal.

2. Mr. Chua now seeks leave to appeal to Her Majesty in Council. He suggests that the leave should be consolidated with leave which has already been refused in relation to the decision of another division of this Court and for which his application to their Lordships for special leave is pending. I doubt very much if this Court would have jurisdiction to make such a consolidating order, but in the event the question does not arise.

3. In his written application Mr. Chua sets out, in seven paragraphs, the grounds which in his view undermine the decision of this Court. There follow two paragraphs under the rubric "Contentions and Reasons for the appeal". He has also submitted a written skeleton of his arguments.

4. In none of these documents, nor in his address to us in court, can I find any question which in my view is of great general or public importance or which ought otherwise to be submitted to Her Majesty for decision. We can then only grant leave to Mr. Chua if he has an appeal as of right, that is "if the appeal involves, directly or indirectly, some claim of question to or respecting property or some civil right amounting to or of the value of $500,000 or upwards": rule 2, Order in Council, 10th August 1909, as amended. That being likely to be a question of some difficulty we adjourned the initial hearing, inviting assistance from the Attorney General.

5. At the resumed hearing Mr. Hamlin kindly appeared and was prepared to accept on behalf of the Attorney General that Mr. Chua does have an appeal as of right, being based on the terms of his contractual employment with the Government which, having regard to his apparent age and legitimate expectation of working until normal retirement age, with a pension thereafter, must be worth at least $500,000. At the same time Mr. Hamlin asked us strictly to enforce the provisions of rule 4 of the Order in Council, in particular that part which provides for security against costs. Having regard to Mr. Chua's lack of financial resources, that would effectively preclude Mr. Chua from taking this matter any further. He therefore asks us to dispense with those provisions.

6. I doubt whether in any event we could accede to his request, for the Order in Council is mandatory, but in my view the question does not arise, for the direct civil right with which we are presently concerned is not Mr. Chua's right to work as a pharmacist for Government nor his right not to be dismissed except in accordance with proper procedures, but his right to apply for leave to have the judicial review in which he seeks particular reliefs which include, as we observed in our earlier judgment, one which is already before their Lordships by way of an appeal for special leave and others which appear to be beyond the proper parameters of the proceedings. His indirect rights are to have a judicial review (if leave be given) and not to be dismissed save in accordance with Curtain procedures.

7. Judicial review is a discretionary remedy. It requires the leave of a High Court judge which he is not bound to grant, even where the applicant appears to have good grounds in law to support his complaint; a fortiori if the applicant does not. The position is similar to that in Royal Hong Kong Jockey Club v. Peter James Miers [1983] 1 WLR 1049 where the stewards of the club were not bound to grant a licence to the jockey in question, that being a matter for their discretion. It seems to me therefore, by analogy to the decision of their Lordships in that case, that Mr. Chua does not have an appeal as of right to Her Majesty in Council. His direct right to apply for leave for judicial review and his indirect rights just described cannot be measured in monetary terms.

8. For these reasons I would dismiss the application.

Kempster, J.A.:

9. I agree with the conclusion and order of My Lord the Vice President and with his reasons.

Litton, J.A.:

10. In his application for leave to apply for judicial review, the applicant has set out no less than twenty separate grounds in support of the various reliefs he seeks. Most of these "grounds" have sub-paragraphs which constitute, in effect, separate grounds. Many of these are simply unintelligible.

11. The heart of his complaints, in so far as I can understand them, is this : that the investigating committee constituted under Colonial Regulation 57 to investigate the charges against him failed to conduct the investigation fairly and properly and its findings of misconduct are vitiated on account of bias; in consequence, the decision of the Secretary for Civil Service to require the applicant to compulsorily retire from the public service was unlawful. Among the reliefs sought by the applicant is an order of mandamus to reinstate him as a government pharmacist with effect from 20 May 1992. There are lesser complaints, such as those relating to the decision of the Director of Accounting Services to "withhold" for seven days his net monthly salary which, on any view, cannot amount to a civil right of the value of $500,000. I will, for the purpose of this matter (confined solely to whether the applicant should have leave to appeal to Her Majesty in Council) put aside those complaints.

12. Having upheld the decision of the judge in refusing the applicant leave to apply for judicial review, the question before us is whether the appeal which the applicant wishes to bring to Her Majesty in Council is one which involves "directly or indirectly some claim or question to or respecting property or some civil right amounting to or of the value of $500,000 or upwards": rule 2(a) of the Hong Kong (Appeal to Privy Council) Order-in-Council 1909.

13. There is no doubt that the civil right directly involved in the applicant's proposed appeal is his right to apply for judicial review. But, plainly, there is some other civil right indirectly involved. What is that right? As I see it, it is the right to have a proper investigation of the allegation of misconduct. The question then arises: is the value of that civil right capable of being appraised and reduced to a money value? In my judgment, it is not. In reaching this conclusion, I have derived some assistance from the case of Griffin and Sons v. Judge Archer and the General Manager of Railways (1957) NZLR 502, referred to in argument in the case of Royal Hong Kong Jockey Club v. Miers [1983] 1 WLR 1049. In Griffin and Sons the court held that the only civil right involved, either directly or indirectly, was the right of the appellant to have its case heard by an impartial tribunal; the value of that civil right could not be appraised or reduced to a money value; consequently the appellant could not bring itself within rule 2(a) of the Privy Council Appeal Rules applicable to New Zealand.

14. In my judgment, Mr. Hamlin's concession, on behalf of the Attorney General, that the applicant does have an appeal as of right, based upon the terms of his contractual appointment with the government, gives too wide a construction to the word "indirectly" in rule 2(a). Assuming for the sake of argument that the investigating committee had conducted itself in the way the applicant suggests it should, does it necessarily follow that the applicant would have been exonerated of all charges of misconduct? If this conclusion cannot be drawn, how can it be said that the appeal involves indirectly the applicant's employment with the government?

15. Like My Lord the Vice-President I, too, have reached the conclusion that the civil right indirectly involved in the appeal cannot be measured in monetary terms, albeit by a different route.

16. For these reasons I too would dismiss the application.

Sir Derek Cons, V.-P.:

17. In handing down this judgment we make an order nisi that there be no order as to costs.