YEUNG WING KIT v. THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION

HCAL 1468/2021

[2021] HKCFI 3337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1468 OF 2021

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D E C I S I O N

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A.  Introduction

1.  The applicant was a contract staff-member of the Housing Authority (“HA”).  She was aggrieved by how her supervisor graded her appraisal report and the appraisal report of her subordinate, believing that her supervisor’s behaviour in handling the two appraisal reports gave rise to corruption related offences.  The applicant made two complaints to the Independent Commission Against Corruption (“ICAC”).  After looking into the complaints, the ICAC decided to terminate the investigation for the reason that the investigation revealed no evidence of offences.  The ICAC so informed the applicant.  The applicant then requested for the written reasons for the termination.  By letter dated 12 August 2021, the ICAC said that it could not provide the information as requested but reiterated that since its investigation revealed no evidence of corruption or any other offences, the investigation was concluded.

2.  On 19 October 2021, and with the benefit of representation by solicitors and Counsel, the applicant filed a Form 86. As identified in the Form 86, the applicant seeks to challenge “the decision of the Putative respondent dated 12 August 2021 refusing to give reasons for terminating the investigation of the two complaints made by the Applicant”.  However, the relief sought in the Form 86 is not to quash the ICAC’s decision refusing to give reasons, but its decision to terminate the investigation.

3.  The Form 86 does not seek any oral hearing, and I think this application can be dealt with on the papers.

B.  Background Facts

B.1  The Relevant Appraisal Reports

4.  The facts traversed below are as stated in the Form 86, and the accompanying affirmation and exhibits.

5.  The applicant was employed as a Finance Manager of the HA.  Her supervisor, a Ms Hui, was a Senior Finance Manager, and her subordinate, a Mr Lam, was an Assistant Finance Manager.  They were all contract staff.

6.  Like most organisations, the HA has a system to evaluate the performance of its employees.  Appraisal reports will be generated from time to time to indicate the staff’s performance for a particular period. In the report, the subject appraisee’s performance will be evaluated by an appraising officer (who is the subject’s supervisor)  and the report will also be countersigned by a reviewing officer (who is the supervisor of the appraising officer).

7.  The applicant’s complaints concern two appraisal reports.  The first is her own appraisal report covering the period from 29 December 2017 to 31 December 2018.  The second is the report on Mr Lam covering the period from 1 January 2019 to 15 September 2019.

B.2  Applicant’s Appraisal Report

8.  For this report, the applicant was the subject, the appraising officer was Ms Hui and the reviewing officer was the person holding the title of Assistant Director (Finance)  in HA.  The assessment was done around March 2019.  On 6 March 2019, Ms Hui showed the applicant a draft appraisal report with grades as assessed by Ms Hui. The applicant disagreed with the Ms Hui’s assessment and did not sign on the report.  The applicant then sent Ms Hui three pages of explanation to justify why the applicant deserved higher grades.

9.  On the morning of 22 March 2019, Ms Hui asked the applicant to sign on the report.  The applicant noted that Ms Hui wrote a sentence on the report to the effect that she had already responded to the applicant and the response was attached to the report.  The applicant understood if she signed on the report it would mean that she had received the full report including Ms Hui’s response.  The applicant asked to have sight of the response, but Ms Hui refused and confirmed that she would only attach the response to the report after the applicant had signed.  She also said she would report the applicant’s refusal to sign to the Chief Finance Manager of HA.  The applicant refused to sign on the report, and complained by email to the Chief Finance Manager of HA.  Ms Hui then, in the afternoon of 22 March 2019, emailed the full report with attachments (including Ms Hui’s response)  to the applicant.

10.  Apparently, the applicant was still dissatisfied with her report after having seen Ms Hui’s response.  In the following weeks, the applicant emailed Ms Hui to remind her that, according to an internal circular of HA, she had no justification to attach her own response to the applicant’s report without the applicant’s agreement and that the applicant could appeal to the reviewing officer.

11.  On 15 April 2019, Ms Hui informed the applicant that the former had already sent the report to the reviewing officer on 22 March 2019.  The applicant obtained a copy of the report on 29 June 2020.  She found out that both Ms Hui and the reviewing officer had already signed the report.  The reviewing officer, a Ms Cheung, signed on 28 March 2019 which was also her last working day in HA. The applicant complained that Ms Hui had deliberately concealed from the applicant the fact that Ms Hui had already submitted the report so as to deprive the applicant of the chance of being treated fairly and impartially in HA’s performance evaluation system.  This is because since Ms Cheung had left, it would be more difficult for the applicant to find out what Ms Hui had said to Ms Cheung regarding the applicant’s complaints.

12.  The applicant lodged an internal complaint to HA regarding Ms Hui’s handling of the applicant’s appraisal report in March and April 2019.  The applicant said Ms Hui attempted to deceive her into signing the appraisal and that appraisal contained false information.  HA later told the applicant that her complaint had been referred to the Police but the Police replied that there was insufficient evidence.  The applicant understood that her complaint was also referred to ICAC around June 2020. ICAC contacted the applicant for information in mid-June 2020.  ICAC also took a witness statement from the applicant on 25 September 2020.

B.3  Mr Lam’s Appraisal Report

13.  For this report, Mr Lam was the subject, the applicant was the appraising officer and Ms Hui was the reviewing officer.  The applicant prepared a draft appraisal report on Mr Lam’s performance in late 2019.  However, Ms Hui, being the reviewing officer, did not agree with the content of the report prepared by the applicant.  Ms Hui wanted to downgrade Mr Lam’s performance.

14.  On 30 January 2020, the applicant spoke to Mr Lam regarding his appraisal report.  Mr Lam said that Ms Hui had already spoken to him.  Mr Lam understood that Ms Hui asked the former to accept an appraisal report with a lower grade this time but assured him a higher grade for the remaining period of the reporting cycle.  Mr Lam understood that whilst it was his report that was downgraded, Ms Hui’s target was indeed the applicant.  Downgrading Mr Lam would serve to make the applicant a “scapegoat” of a “purported unlawful backdating re-tender exercise” Ms Hui intended to carry out previously.  Ms Hui also downgraded Mr Lam’s report to make the applicant’s life difficult.

15.  At the end, Ms Hui did record her disagreement with the applicant’s in Mr Lam’s report.  Ms Hui downgraded Mr Lam from “A” (as given by the applicant)  to “B”, and provided justification in the report.  Mr Lam later told the applicant that he did get an “A” for his next appraisal report covering the period of 16 September 2019 to 31 December 2019.  The applicant made a complaint to the ICAC against Ms Hui on 30 March 2020.  ICAC took a witness statement from her on 2 July 2020.

16.  Grades of a contract staff in the appraisal report affects his bonus payment.  The applicant also said that she understood that there was a quota for bonus payment for the entire section/subsection, such that the bonus payment of one staff would have a “knock-on effect” on other staff.

B.4  ICAC’s decision

17.  On 5 May 2021, a Senior Investigator from ICAC, a Mr Tan, who was responsible for both complaints informed the applicant over the phone that ICAC had completed the investigation which revealed no evidence of any offence and had decided to terminate the investigation.  The investigator refused to inform the applicant details of the ICAC’s investigation such as who had been interviewed or any other investigative measures taken.

18.  By letter dated 6 August 2021 issued by the applicant’s solicitors, the applicant requested written reasons for the termination from ICAC.  In the letter, the applicant referred to her conversation with Mr Tan on 5 May 2021, set out the investigative details which Mr Tan had refused to provide, and stated that Mr Tan only said that the investigation revealed no evidence without further explanation.  It was suggested that written reasons for termination must have been prepared for the Operations Review Committee which was the internal organ within ICAC to determine whether an investigation should be terminated.  Since written reasons already existed, there would be no extra costs to provide the same to the applicant.

19.  In ICAC’s letter dated 12 August 2021, it was stated:

I refer to your letter of 6 August 2021 requesting the provision of the written reasons of the decisions to terminate the investigation of two complaints made by your client in the captioned case.

Please note that the ICAC could not provide the requested information to you because disclosure of such information would harm or prejudice (i) the prevention, investigation and detection of crime and offences, or the apprehension or prosecution of offenders; and (ii) the proper and efficient conduct of the operations of the ICAC.

Notwithstanding the above, please be assured that your client’s complaints had been recorded and investigated thoroughly, but our investigation reviewed no evidence of corruption or any other offences, hence the conclusion of those complaints.

C.  Grounds of review

20.  Two proposed grounds of review are put forward in the Form 86.  They must be alternatives, and are:

(1)  the Commissioner failed to give reasons for the decision to terminate the investigation; and

(2)  if reasons are considered to have been given, the Commissioner failed to give adequate reasons.

D.  Is there merit for the grant of leave?

D.1  Ground 1: Failure to Give Reasons

21.  As the applicant seems to recognize, there is a difference between (a) the Commissioner’s decision to terminate the investigation and (b) a subsequent decision refusing to give reasons for the earlier decision to terminate the investigation.  The Form 86 at section A4 traverses the decision to terminate the investigation, whilst section A5 traverses the decision not to provide reasons for that termination.

22.  But, as identified above, there is a mismatch in the Form 86 between the decision stated to be under challenge and the decision sought to be quashed.  This ‘disconnects’ the decision challenged from the relief claimed, since it does not follow that a failure to give adequate reasons will lead to the quashing of the decision.

23.  This mismatch may be the result of a recognition by the applicant, or those representing her, that the decision to terminate the investigation was made on or before 5 May 2021, and that in consequence the proposed challenge to that decision by the Form 86 dated 19 October 2021 was out of time.  This timing issue is not addressed in the Form 86, and no extension of time for making the proposed challenge is sought.

24.  In any event, the proposed ground of challenge has no merit.  This is because §20 the Form 86 itself identifies that the applicant was told in the telephone call from Mr Tan on 5 May 2021 the reasons why the decision to terminate the investigation had been made.  First, the ICAC had completed its investigation and that investigation revealed no evidence.  Secondly, the Sub-Committee – which the applicant accepts is an apparent reference to the Sub-Committee of the Operations Review Committee (“ORC”)  – had endorsed the recommendation to terminate the investigation.

25.  Indeed, §23 of the Form 86 also expressly recognised that the ICAC’s letter of 12 August 2021 (which is said to found the proposed complaint in Ground 2 as to inadequacy of reasons)  stated that “[the applicant’s] complaints had been recorded and investigated thoroughly, but our investigation reviewed no evidence of corruption or any other offences, hence the conclusion of those complaints”.

26.  Therefore, the applicant’s suggestion that the Commissioner’s failure to give reasons “is self-evident” is, with respect, obviously incorrect.

27.  Nor is it correct for the applicant to suggest in §28 of the Form 86 that by the 12 August 2021 letter the Commissioner has “positively refused to give reasons to the applicant”.  The 12 August 2021 letter was a reply to the applicant’s 6 August 2021 letter, which referred to what Mr Tan had told the applicant on 5 May 2021, and asked for the production of the written reasons the applicant assumed had already been prepared for review by the ORC, which could be provided to the applicant without extra cost.  What was refused was that “requested information”.

28.  But this leads to the second of the two proposed grounds of review.

D.2  Ground 2: Failure to Give Adequate Reasons

29.  The law on this area is settled.  The sufficiency of reasons depends on the legal framework within which the decision is given, the context of the decision and the nature of the issues to be determined by the decision-maker.  Brevity does not equal inadequacy.  The degree of particularity depends on the issues falling to be determined.  The reasons must be examined with reality and contextual common sense.  The Court should approach a reasons challenge with the caution of avoiding ‘over-judicialization’ of day-to-day administrative decisions.  Further, a reasons challenge will only succeed if the aggrieved party can show that he has genuinely been substantially prejudiced by the decision maker to provide adequate reasons: see the recent summary of law in Chow Oi Tong Amy v Hong Kong Housing Authority & Housing Appeal Tribunal [2020] HKCFI 1163 at §§27-29.

30.  In the case, the decision to terminate the investigation was made in the context of a criminal investigation led by the ICAC for possible corruption offences.

31.  The ICAC’s investigative power is provided by section 12 of the Independent Commission Against Corruption Ordinance Cap 204 (“ICACO”).  Under section 12, the Commissioner is under a mandatory duty to investigate into corruption complaints.  But neither section 12 nor other sections of the ICACO stipulate how the Commissioner should conduct investigation.

32.  Under the common law, the Commissioner enjoys a broad operational discretion on how to carry out his investigative duties, and such discretion includes deciding if an ongoing investigation should be terminated.  It is well recognized in law that the exercise of such discretion in the law enforcement context involves making (sometimes difficult)  judgments as to how best to utilise resources and manpower in addressing the statutory duties and objectives.  The discretion enjoyed by the Commissioner under the common law is similar to that enjoyed by the Commissioner of Police: see HKSAR v Lew Mon Hung [2018] HKCA 116 at §§119-130 and HKSAR v Ng Shek Wai [2018] HKCFI 720 at §§19-21.

33.  It is settled law that the Court should exercise great caution in interfering with a prosecutorial decision by way of judicial review, see Kwok Cheuk Kin v the Director of Prosecutor David Leung & the Secretary for Justice [2019] HKCFI 2215 at §33.  The principle is equally applicable to criminal investigation: see 黃得煒及警務處處長 (unreported, HCMP 2443/2016, 23 November 2016)  at §22, a case involving the Commissioner of Police, but applicable by analogy to the Commissioner of the ICAC.

34.  As is clear from what the applicant says she was told on 5 May 2021, and in the letter of 12 August 2021, investigation had already been performed by ICAC, but the ICAC considered that it revealed no evidence of corruption or any other offences. On that basis, the investigation was terminated, concluding the complaints.

35.  Those reasons are not inadequate.  Whilst the applicant argues that she could not know the exact offences considered by the ICAC, the points of law at issue or the reasoning leading to the conclusion, nor was she told any factual findings underpinning the conclusion that there was no evidence of corruption, the reasons provided for terminating the matter after investigation are perfectly clear and adequate.  There was no additional obligation on the ICAC to explain to the applicant like a Court would why it did not think there was evidence to show commission of the offences the applicant herself suggested.

36.  Whether the reason given is sufficient must be viewed, with a common sense approach, in the context of the criminal investigation and bearing in mind the broad operational discretion entrusted to the Commissioner in further pursuing or halting the investigation.

37.  As an aside, the facts of this case – centring on a workplace disagreement – seem far from the usual scenario where one would look for a corruption related offence or any offence.  But, in any event, to say the investigation revealed no evidence of corruption offence or any other offences is adequate in explaining why the investigation was terminated.  I also see no arguable, let alone substantial, prejudice to the applicant from the way in which she was informed of the decision to bring the complaints to an end.

38.  There is no merit in this ground.

E.  Conclusion

39.  The applicant’s application for leave to apply for judicial review is therefore dismissed, with no order as to costs.