PANG CHAK YUM v. SECRETARY FOR THE CIVIL SERVICE and Another

1995, No.MP1349

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

___________

_______________

J U D G M E N T

_______________

1. This is an application for judicial review of the decision of the Secretary for the Civil Service ("the Secretary") directing the Urban Services Department ("USD") that the applicant be compulsorily retired with deferred pension. Though there has been slight delay in the bringing of this application, it was conceded by the respondents that the application should be determined on its merits. The application was heard and dismissed with reasons reserved. I now hand down the reasons therefor.

2. Leave was granted to the applicant to seek a declaration that the decision of the Secretary was "unfair in relation to, and inconsistent with, the penalties directed by the Secretary to be inflicted on other employees of the Urban Services Department who were guilty of the same or similar misconduct as the Applicant". In the notice of application, the only statement of law relied on is that "The Secretary for the Civil Service were (sic) required to act fairly and consistently and the Applicant had a legitimate expectation that it should do so".

3. At the commencement of the hearing, the applicant applied for an adjournment to enable him to adduce evidence of further similar cases (most of which are still pending a decision) as comparable to bring home his argument on the disparity issue. The stance of the respondents was that any application for compulsory discovery will be resisted. The applicant conceded that it would not be possible to compel discovery of particulars of similar disciplinary proceedings without the consent of the subject person of those proceedings; and that there is no material before the court to suggest that such consent will be forthcoming. Without such material before court, the possibility of such evidence being made available at the adjourned hearing remained nothing but a remote hope. I was not persuaded that in the absence of such consent it would be possible for the applicant to obtain a compulsory order from the court against the respondents. Such disciplinary proceedings are by nature private confidential administrative hearings though they are amenable to judicial review. The subject persons of such disciplinary proceedings are entitled to confidentiality. They have a right against public disclosure of such proceedings. Mr. Ho for the applicant has not been able to show me any overriding public interest to defeat such an important right to privacy of the individual. In any event, Mr. Ho also failed to demonstrate the relevance of penalties in similar disciplinary proceedings imposed subsequent to the decision in the present case on his ground of a legitimate expectation. There can not be any legitimate expectation founded on knowledge of matters that came into being subsequent to the making of the decision the subject of the complaint. In the premises, adjournment of the hearing was refused.

4. The applicant proceeded, at first, solely on the ground of disparity of treatment in his allegation of unfairness. Such was the only ground "pleaded" in his application. However, during his submission, leave was granted to the applicant to further rely on the wider ground of Wednesbury unreasonableness and irrationality as his fallback position. As it transpired that the present case was the first of its kind at the USD, the applicant also abandoned any reliance on the alleged legitimate expectation. The application was thus proceeded with on the disparity argument and the Wednesbury principle only.

The Disparity Argument

5. It is the submission of the applicant that disparity of treatment per se is unfair. I am unable to accept the logic or validity of such a swiping statement. It is possible for one to demonstrate the unfairness of a decision with reference to disparity of treatment; but, that is far from saying that disparity per se is conclusive of unfairness. All would depend on the comparable used to demonstrate the unfairness of the situation. It is trite law, which is nothing but a statement of logic, that difference in penalties imposed in two or more similar factual circumstances per se demonstrates nothing but the difference in the decisions. The correctness of the other decision used as the comparable must first be established before such decision can be of any use in demonstrating the error in the decision under comparison. It would be absurd to contend that just because a convicted person had been let off leniently by a tribunal, it should follow that another tribunal acting reasonably and properly in imposing a proper penalty, albeit more severe, should be held to have fallen in error in failing to follow the more lenient example. It is conceded by Mr. Ho that similar principles applied in the treatment of disparity in sentences in criminal proceedings.

6. A disparity argument, without an alleged legitimate expectation arising from a known penalty for a particular misconduct, is of very limited use save in exceptional circumstances. It has been said that "The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred." (per Lord Diplock in Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] A.C. 1014 at 1064) The factual circumstances must be very substantially similar for the decision to serve as a basis for comparison. In cases of comparing penalties imposed, the personal background of the offender and the particular mitigating circumstances are of paramount importance, and would have to be very substantially similar to be of any assistance to a tribunal. The cases use as comparable, when they are of equal jurisdiction and not governed by the principle of stare decisis, would first have to be proper and correct decisions in themselves to be of any use as a comparable. In demonstrating the propriety of the comparable decision, its detail factual matrix, background and personal circumstances of the offender would have to be analysed. Though it may be said that the comparable decision should be given prima facie recognition, I cannot accept the suggestion of Mr. Ho that one should accept, in absolute terms and without question, the propriety of the decision used as the comparable. No such assumption can legitimately be made simply because the comparable decision has not been appealed. It can perhaps be accepted that the greater the number of substantially similar decisions arriving at a similar penalty the easier it would be for their propriety to be demonstrated. When only one or very few comparable are presented, great care must be exercised in understanding the foundation of the penalties imposed before use can be made of them as comparable. However, it is as far as the argument can be advanced. The need for an analysis of the decisions used as comparable can only be lessened but never eliminated.

7. However, even assuming the propriety of the two decisions used by the applicant as comparable are accepted, the disparity in the penalties imposed can readily and amply be justified. Though both subject persons in the two decisions used as comparable had consented to the disclosure of their cases (by supplying details of the penalties imposed upon them to the applicant), they shall be referred to as Chan and Lo only. Chan was given a severe reprimand with salary reduction of two pay points for five months. Lo was only given a severe reprimand. Chan was guilty of absent from duty, making false entries and leaving Hong Kong whilst on sick leave without permission. Lo was guilty of absent from duty and leaving Hong Kong whilst on sick leave without permission. The applicant was guilty of absent from duty and making false entries, but was found not guilty on the charge of leaving Hong Kong whilst on sick leave without permission. Like the applicant, Chan was also an overseer; while Lo was of the lower rank of a foreman.

8. Firstly, the severity of the misconduct was dissimilar. The applicant was found guilty to have been absent from duty on 57 occasions representing a total of 91.65 hours. Chan was found guilty on 4 occasions only involving a total of 10.77 hours, and Lo pleaded guilty to 20 occasions totalling 72 hours. The applicant was found guilty of 49 occasions of making false entries within 14 months, while Chan was only guilty of 32 occasions over a period of 43 months. Chan was found guilty of leaving Hong Kong for a total of 37 days without permission and Lo of 19 days. Chan stated he left for China to receive medical treatment while the applicant stated he went there for recreation. Lo's claim for going to China for medical treatment was established and permission would have been given if asked. Both the applicant and Chan denied the charges, and Lo admitted all charges. I refused to accept Mr. Ho's contention that the applicant had "pleaded guilty" to the charges and I shall deal with this later. Though Chan had also denied the charges, he admitted technical error and was found by the disciplinary tribunal to be repentant. The tribunal could not find any such repentance in the applicant. Indeed, the applicant's case was that he had to commit the misconduct because everybody in the same unit was doing the same. He claimed he would be ostracised by his colleagues if he did not follow what he described as the general practice. In other words, he was putting the blame on others and alleged he was forced to be as lazy and irresponsible as his colleagues to maintain harmony with them. It is significant that as supervisors both the applicant and Chan occupied more senior positions than Lo and were entrusted with supervisory as well as law and discipline enforcement responsibilities.

9. Other mitigating circumstances between the subject persons are also quite dissimilar. Chan had 32 years of service with the USD as at the date of penalty whilst the applicant had only 24 years of service. The length of service of Lo is unknown. The applicant had a "fairly satisfactory" disciplinary record. Lo had a clear disciplinary record. Chan's record is unknown in this respect. The applicant had received one letter of appreciation, seven reports of "very good" performance and one report of "outstanding" performance. Chan had received one letter of appreciation and reports of "very good" and above since 1986. Lo's record in this respect is unknown. A marked difference of significance between the applicant and Chan is that Chan would be retiring at the age of 55 about 5 months after the imposition of the penalty. It was thus of little use to impose any compulsory retirement upon him. The reduction in salary for Chan was effectively to last for the reminder of his service period. As a result of the misconduct, Lo's confirmation of his post as foreman was delayed which would have a long term effect on his promotional prospect.

10. As can be seen from the analysis, the severity of the misconduct, the mitigating circumstances, the personal particulars and background are significantly different between the applicant, Chan and Lo. The disparity in the penalties imposed is fully justified in the circumstances. I am unable to see any unfairness in treatment in the penalty imposed upon the applicant when compared with the less severe penalties imposed on Chan and Lo.

11. It is important not to overlook the intention of the legislature in entrusting the disciplinary power to the statutory body and not the courts. Nazareth V.P. commented in the unreported case of Re Au Yeung Kwok Hing, C. App. No.205 of 1994, that :-

"It is helpful to have regard to some of the considerations which have led to the well-established nature of the court's limited supervisory jurisdiction in judicial review. It is to the Commissioner and his officers that the determination and punishment of disciplinary charges have been entrusted by the legislation, and not the courts. And in discharging that function, the former are entitled, and must be presumed to have been expected, if not required, to bring to bear their knowledge and experience of the requirements and operations of the Police Force; and likewise to assess awards in the light shed by the nature and circumstances of the misconduct upon the desirability and appropriateness of the offending officer remaining in the Force."

Wednesbury Unreasonableness or Irrationality

12. Is the penalty imposed upon the applicant in itself unreasonable and irrational in the circumstances? The applicant relied on three complaints to found his case :-

1. That the Secretary erroneously treated the applicant as having pleaded not guilty when in fact he did.

2. That the Secretary failed to take into consideration that since early 1992 and thereafter the applicant had been performing and discharging his duties faithfully.

3. That such penalty was in gross disparity and inconsistent with other penalties imposed in other similar disciplinary proceedings.

13. Mr. Ho contended that the applicant had pleaded guilty even before the institution of disciplinary proceedings against him. Mr. Ho placed heavy reliance on the applicant's letter of 3 July 1992. The applicant was informed of the commencement of disciplinary investigation against him on 27 April 1994. He was first asked, on 31 January 1991, to give his explanation to the matters involving his being in China whilst on sick leave. In reply, the applicant explained on 6 February 1992, that he only became sick in China after taking contaminated food or water and sought medical treatment there to be followed by further medical treatment in Hong Kong after return. He alleged that was the way sick leave was granted on the occasions under investigation. In his letter dated 3 July 1992, the applicant gave the excuse of the general practice and his being forced to follow the trend to maintain harmony with his colleagues. Though on one view his detailed explanation in that letter can be taken as an admission of his wrongdoing. He did say that he would not allow himself to be singled out for punishment and would do everything within his power to obtain fair treatment. He further blamed the management for its incompetence and weakness to allow such a general practice to exist. In response to further enquiry by the USD, solicitors for the applicant wrote on 24 March 1994 enclosing a hand-written submission of the applicant dated 23 March 1994. Though maintaining his excuse of the general practice, there is a marked change in the applicant's stance. Along with a lengthy essay on his good performance in handling hawkers when he was on duty, the difficulties in his job and the "mal-management" of high levels; he raised the defence of "implied consent" from the management for the alleged misconduct. He further alleged "excessive delay in prosecution without reason", as well as "double prosecution" arising from the completion of investigation by the Independent Commission Against Corruption without prosecution. The applicant alleged such further investigation by the USD is unlawful in the circumstances. It is abundantly clear that the applicant was at that stage raising positive defence to the accusations when he was represented by legal advisers. At the hearing before the disciplinary tribunal, the attitude of the applicant was beyond any shadow of doubt. After the procedure, his rights and the charges were explained in meticulous detail to him, the applicant stated "I deny all charges". When the chairman sought confirmation if he was denying all charges, probably prompted by his previous written submissions, he replied affirmatively. The hearing then proceeded with the prosecutor calling lengthy and detail evidence from witnesses to prove his case against the applicant on all charges. The prosecution evidence was vigorously challenged by cross-examination and accusations of lies were made against the witnesses. The applicant also raised the issue of an allowance of a 45 minute break. The defence of implied consent was strongly pursued by the applicant against the charges. I am left in no doubt at all that the allegation that the applicant had pleaded guilty and showed remorse at the hearing is wholly unfounded and without any merits.

14. As regard the second complaint of a failure to take into consideration the impeccable service of the applicant after early 1992, there is no suggestion that the material was not before the tribunal for it to consider. The applicant had given a detail account of his service and the efficient system adopted at the new district in the unit he was attached to since 1 April 1992. The management imposed very strict disciplinary measures in the new unit. The alleged general practice was not tolerated by the management. Very tough disciplinary action would be taken against offenders. Effective preventive measures were enforced at that new unit with strict requirements of signing on and off duty. The marked improvement in the applicant's sense of responsibility and performance of his duty can thus be readily understood. Furthermore the improvement only came after the applicant was made aware of the present investigation against him for the said charges. In the premises, any credit that could be given to the improvement in the applicant's service since 1992 is qualified by the said background, and could hardly be sufficient per se to render improper what would otherwise have been a proper penalty.

15. I have already dealt with the disparity argument, and I see no need to deal with it again in this particular context. The two decisions used as comparable are significantly different from the applicant's case and failed to demonstrate any impropriety in the penalty imposed upon the applicant. As the disparity could be amply justified by the significant difference between the cases, the applicant has failed to demonstrate any unreasonableness or irrationality of the applicant's penalty arising from such disparity.

16. It is accepted that the law is not a stagnant pool of water incapable of any development, particularly relating to that of judicial review. I am in entire agreement with the statement of law in the majority judgment delivered by Lord Morris in Furnell v. Whangarei High School Board [1973] A.C. 660 at 679 that :-

"It has often been pointed out that the conceptions which are indicated when natural justice is invoked or referred to are not comprised within and are not to be confined within certain hard and fast and rigid rules : see the speeches in Wiseman v. Borneman [1971] AC 297. Natural justice is but fairness writ large and juridically. It has been described as "fair play in action." Nor is it a leaven to be associated only with judicial or quasi-judicial occasions. But as was pointed out by Tucker L.J. in Russell v. Duke of Norfolk [1949] 1 All E.R. 109, the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration."

However, I am of the view that mere disparity between decisions per se would not render improper what would otherwise have been a proper decision, and it would be more appropriate for applicants to run a disparity argument that is not based on any legitimate expectation under the Wednesbury principle than to rely upon it as a new and independent ground in isolation of any consideration of the propriety of the decision itself. A disparity argument in disciplinary hearing based on legitimate expectation presupposes knowledge by the applicants of sufficient particulars of the decisions used as comparable at the time of the commission of the misconduct and thus would probably only occur rarely.

17. For reasons aforementioned, the applicant has failed to show that the penalty imposed upon him by the Secretary was unreasonable or irrational. The applicant has thus failed to establish any ground for the court's interference with the penalty imposed by the Secretary. In the premises, the application was dismissed with costs.