NGAI FOOK LAM V. COMMISSIONER OF CORRECTIONAL SERVICES

1993, No. MP 2815

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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1. This is an application for Judicial Review. The Applicant who is an Officer in the Correctional Services Department seeks an Order of Certiorari quashing the decision of the Commissioner of Correctional Services requiring him to obtain medical certificates from designated clinics if sick leave is to be granted to him.

2. The Civil Service Regulation governing this situation is CSR 1291:

"Withholding the grant of sick leave

1291. If a Head of Department considers that an Officer is abusing the privilege of obtaining sick leave on the basis of certificates issued by private medical practitioners, he may, subject to quarterly review, require the officer to attend before a Government or Hospital Authority medical officer, or a particular Government or Hospital Authority medical officer, or to attend a particular Government or Hospital Authority clinic, on each occasion the officer wishes to take certificated sick leave. If necessary, he may also require the officer to be examined by a Medical Board under CSR 940. In these circumstances, private medical practitioners' certificates may no longer be accepted from the officer concerned, and if one is produced to support an absence from duty, the grant of sick leave will be withheld. (Such discretion should be exercised by an officer of a rank not lower than Assistant Head of Department, or by a Departmental/Office Secretary of a rank not lower than Senior Executive Officer, who should also be at least two ranks above the officer whose sick leave is in question)."

3. The 1st issue which has to be considered is whether the complaint which is made by the Applicant is amenable to Judicial Review.

4. The Applicant is a Government servant and on the authority of Lam Yuk-ming and Ors v. Attorney General [1980] HKLR 815, a contract of employment exists between the Government and the Applicant. The matter complained of is undoubtedly a private issue between the Applicant and the Government and is not amenable to Judicial Review.

5. The remarks of Lord Donladson MR at p.824 of Ex parte Walsh (1984) 3 WLR 818 establish this :

" The remedy of judicial review is only available where an issue of "public law" is involved, but, as Lord Wilberforce pointed out in Davy v. Spelthorne Borough Council [1984] A.C. 262, 276, the expressions "public law" and "private law" are recent immigrants and, whilst convenient for descriptive purposes, must be used with caution, since English law traditionally fastens not so much upon principles as upon remedies. On the other hand, to concentrate on remedies would in the present context involve a degree of circularity or levitation by traction applied to shoe-strings, since the remedy of certiorari might well be available if the health authority is in breach of a "public law" obligation, but would not be if it is only in breach of a "private law" obligation."

6. Even if I am wrong in this I have no doubt that this application has no prospect whatever of success.

7. The decision which is complained of is contained in the letter of the 18th June 1993 :

" Our Ref. : (71) in VU/T1636/90E Your Ref. : Tel. : 582 5137

By Registered Post CORRECTIONAL SERVICES DEPARTMENT HONG KONG HEADQUARTERS 23rd Floor Wanchai Tower 12 Harbour Road Wanchai Hong Kong 18 June 1993

Dear Sir,

It had been reported that you claimed to have been recommended sick leave since 7 June 1993, but you have so far failed to produce the sick leave certificates.

As the circumstances strongly indicate that you are abusing the privileges of obtaining sick leave, you have already been directed vide my (62) in this series to attend either (i) Sai Ying Pun Jockey Club Polyclinic or (ii) Whitehead Detention Centre Hospital on each occasion when you wish to report sick or consult a doctor. Sick leave certificates issued by private medical practitioners during this period of curtailment will not be accepted. However, in cases of emergency you may attend the Accident and Emergency Department of any Hospital for treatment.

In this connection, you are required to return all the sick leave certificates to your institution or to send it by registered post if you are certified to be unfit for travel by the medical officer, or to give a satisfactory explanation of your absence, or elect to resign by the payment of one month's salary in lieu of notice under Civil Service Regulation 320, within 14 days of this letter, failing which your absence since 7 June 1993 will be treated as unauthorized. You are further remained that Prison Rule 255AA will be invoked to summarily dismiss you from the service for unauthorized absence from duty exceeding 21 days.

Pending your explanation and the outcome of any disciplinary action arising from your absence, all sums payable to you by the Government are being withheld.

Yours faithfully,

Signed

(YU Siu-lam)
for Commissioner of Correctional Services"

8. It is apparent that this letter did not evidence the decision which the Applicant appears to be complaining of. It is a letter written consequential upon it. The original decision was communicated to the Applicant by a letter dated the 24th June 1992.

"Ref. : (35) in VU/T1636/90E Tel. : 582 5233 Mr. NGAI Fook-lam Officer T1636 c/o Sr. Supt., WHDC

CORRECTIONAL SERVICES DEPARTMENT HEADQUARTERS 23 & 24 Floors, Wanchai Tower I, 12 Harbour Road, Wanchai, Hong Kong. 24 June 1992

Dear Sir,

It is noted with some concern that you have frequently obtained sick leave from private medical practitioners.

In accordance with C.S.R. 1291, you are required to attend either (i) Tang Shiu Kin Hospital or (ii) Whitehead Detention Centre Hospital on each occasion when you wish to report sick or consult a doctor if you feel you may need to take sick leave.

Sick leave certificates issued by private medical practitioners during this period of curtailment will not be accepted. However, in cases of emergency this does not prevent you from attending the Accident and Emergency Department of any Hospital for treatment. You should bring along this letter for identification before request for consultation in the clinic.

Failure to comply with this instruction will render you to disciplinary proceedings.

9. This being the case the Applicant is long out of time and in the absence of any explanation being forthcoming the Court would not be prepared to Judicially Review the decision.

10. So far as the merits of the application are concerned I have no doubt that even if properly founded and within the requisite time limits it would be doomed to failure.

11. It is strongly my impression that the Applicant has misconceived the true construction of CSR 1291.

12. The Applicant is not precluded from obtaining any medical advice or treatment. All that CSR 1291 is providing for is that if the Applicant wishes to obtain sick leave from his Department he must produce a Certificate from a Medical Officer at one of the Clinics referred to in the correspondence.

13. Having regard to the uncontested evidence of Mr. Yu for the Commissioner of Correctional Services it is clear that the Department had valid grounds for taking action under the Regulations and have complied with all of the requirements which have been laid down.

14. Sick leave has been granted pursuant to certificates issued by Medical Officers in the designated Clinics and the Applicant's situation has been the subject of Quarterly Reviews.

15. There has been no breach at all of the Rules of natural justice and certainly no infringement of Article 3 of the Bill of Rights.

16. For the reasons I have given I dismiss this application and I will hear the parties on costs.