LAM CHE WAI v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE

HCAL53/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.53 OF 2003

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JUDGMENT

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1. This is the applicant's application to judicial review the following decisions of the Director of Food and Environmental Hygiene (formerly the Director of Urban Services Department) ("the Director") :

(1) The decision made on or about 4 May 2001 to issue a written warning to the applicant for misconduct; and

(2) The decision made in or about 1999 to withhold the promotion of the applicant to the rank of Senior Hawker Control Officer ("SHCO").

Factual background

2. The applicant joined the then Urban Services Department ("USD"), now re-named Food and Environmental Hygiene Department ("FEHD") in March 1974. He is now a Hawker Control Officer ("HCO"). Since 6 October 1997, the applicant has been acting in the rank of SHCO.

3. On 24 June 1998, the Independent Commission Against Corruption forwarded to USD an Operations Review Committee Report ("the Report") in respect of an operation conducted by the police. During the operation, the police carried out observations at Tang Lung Street, Causeway Bay on 5 November 1997. The Report revealed that during the observations, the applicant and other HCOs were seen dining at a Tin Bo Restaurant between about 19:35 hours to 22:00 hours, which was beyond the one-hour permitted meal time. The incident was recorded on video tape by the police. Based on the information available, the ICAC decided not to conduct further investigation.

4. By a letter dated 13 July 1998, USD invited the applicant to give explanations on the following matters:

(1) Taking a prolonged meal break on 5 November 1997 and entering an incorrect record of the meal time in his notebook, and

(2) Accepting discounted meal from the restaurant without prior departmental approval.

5. On 20 August 1998, the applicant rendered his explanations by way of a file minute to his supervising officer.

6. On 7 January 1999, USD referred the Report to Civil Service Bureau ("CSB") for consultation on the appropriate disciplinary action to be taken against the applicant and the other HCOs.

7. After consideration, CSB decided to institute formal disciplinary action against all the officers. By letter dated 26 March 1999, CSB informed the applicant that consideration was being given to conducting an investigation under section 9 of the Public Service (Administration) Order 1997 ("PS(A)O 1997") for misconduct and invited the applicant to make written representations on or before 8 April 1999 on the following allegations against him :

(1) Taking a meal break from 19:35 hours to 22:00 hours on 5 November 1997, contrary to paragraph 2(a) of the then USD Operational Circular No. 2/96, which prescribed the duration of meal break to be one hour, and

(2) Making a false entry in his notebook, namely, he resumed duty after meal break at 21:25 hours.

8. By letter dated 12 April 1999, the applicant indicated that he would not make further representations but reserved the right to make representations in the disciplinary inquiry.

9. On 11 May 1999, CSB wrote to the applicant informing him that the representations he made did not exculpate him from the misconduct alleged against him and that an investigation under section 9 of PS(A)O 1997 would be held. On 22 September 1999, CSB gave notice that a hearing would be held on 14 October 1999. On 8 October 1999, CSB notified the applicant that the hearing would be postponed until further notice and that the charge had been amended. The amended charge reads :

"Statement of alleged offence

Misconduct

Particulars

You, LAM Che-wai of Urban Services Department, misconducted yourself while you were employed as Acting Senior Hawker Control Officer of Urban Services Department in that -

(1) On 5 November 1997, you had a meal break from 1935 hours to 2200 hours, in contravention of paragraph 2(a) of the Urban Services Department Operational Circular No. 2/96.

(2) On 5 November 1997, you made a false entry in your notebook, namely that after meal break you resumed your duty at 2115 hours."

10. Although the applicant was invited to state the grounds relied upon to exculpate him, he did not make any representations.

11. In the meantime, formal disciplinary inquiry was conducted on one of the HCOs seen dining at the restaurant. On 1 February 2000, USD was re-organized to become FEHD. Eventually, decision was taken that written warnings would be appropriate for the HCOs involved and that formal disciplinary inquiry would be dropped.

12. By letter dated 17 April 2001, CSB informed the applicant that formal disciplinary inquiry into the alleged misconduct would be discontinued and FEHD would impose informal disciplinary punishment on him.

13. On 4 May 2001, the Director issued a written warning to the applicant in respect of the prolonged meal break and the failure to resume duty at the scheduled time. The CSB letter of 17 April 2001 and the written warning were delivered to the applicant on 16 May 2001.

14. The applicant appealed against the written warning and gave notice on 17 May 2001 that he would be assisted by Mr Lau Ying Yuen, a Principal Hawker Control Officer, in conducting the appeal. On the same day, Mr Lau requested FEHD to provide copies of incriminating evidence against the applicant and the representations made previously by the applicant.

15. On 28 November 2001, FEHD informed Mr Lau of the evidence that had been considered in the deliberation of the applicant's disciplinary case and the decision on the request for copies of the evidence. As part of the disclosure, on 11 December 2001, the applicant and Mr Lau viewed the video tape recorded by the police. Acting on the instruction of the police, only one section of the video tape, which showed the appearance of the applicant, was played to and viewed by the applicant and Mr Lau.

16. On 22 December 2001, the applicant submitted his representations on the appeal, which raised four grounds. Firstly, it doubted the sufficiency of the evidence in support of the misconduct alleged against him. Secondly, it is said that there were discrepancies between the statements of the two police officers that carried out the observations. Thirdly, the applicant asserted that he dealt with a complaint of illegal hawking at Great George Street from 19:07 hours to 19:35 hours, and produced a daily record of the radio messages in support. Fourthly, it is said that the summaries of the ICAC interviews of the other two HCOs did not establish that he had taken a prolonged meal break.

17. After consideration, FEHD rejected the applicant's appeal. The decision was communicated to the applicant on 17 June 2002. On 24 June 2002, Mr Lau requested for detailed reasons for the conclusions reached on the departmental investigation. On 17 June 2002, FEHD gave the reasons for rejecting the appeal in writing. Upon Mr Lau's request for further information, FEHD gave further explanations by way of letter dated 30 August 2002.

18. Mr Lau also renewed his request to view the entire video tape recorded by the police. With the consent from the police, Mr Lau and the applicant was allowed to view the entire video tape taken by the police on 16 September 2002.

19. As a result of the written warning, the applicant was debarred from promotion or appointment for one year commencing 4 May 2001 by virtue of paragraph 4.19 of PS(A)O. Previously in March 1999, the Promotion Board had recommended the applicant, for substantive promotion to SHCO subject to clearance of his disciplinary case. In the end, the applicant was not promoted because of the ongoing disciplinary action, but he was allowed to continue acting in the rank of SHCO. During another promotion exercise conducted in January 2001, the applicant was waitlisted for substantive promotion subject to clearance of his disciplinary case. The recommendations of the Promotion Board were eventually not promulgated and no officer was promoted. In the following promotion exercise held in April 2002, the applicant was also recommended by the Promotion Board for substantive promotion subject to acquittal on appeal. Given that the applicant had received the written warning that had a debarring effect, the recommendation was not effected. Throughout these times, the applicant continued to act in the rank of SHCO.

The application for judicial review

20. On 23 May 2003, the applicant commenced these proceedings. Leave to judicial review was granted on 7 June 2003. On 21 June 2003, the Notice of Motion was filed.

21. In his Form 86A, the applicant seeks the following relief:

(1) A declaration that the decision of the Director made on or about 4 May 2001 to issue a written warning to the applicant for his commission of the alleged misconduct is null and avoid and of no effect in law;

(2) Alternatively, an order of certiorari to quash the decision of the Director made on or about 4 May 2001 to issue a written warning to the applicant for his commission of the alleged misconduct and if necessary an order that the matter be remitted to the Director for re-determination;

(3) A declaration that the decision of the Director in or about 1999 to withhold the promotion of the applicant to SHCO is null and void and of no effect in law;

(4) A declaration that the applicant should have been promoted to SHCO since 1999 with retrospective effect;

(5) Alternatively, an order of certiorari to quash the decision of the Director in 1999 to withhold the promotion of the applicant to SHCO and if necessary, an order that the matter be remitted to the Director for re-determination;

(6) Costs.

The grounds for judicial review

22. At the hearing, the applicant only relies on two grounds, namely,

(1)	Irrationality
	It is said that the decision of the Director to issue a written warning is Wednesbury unreasonable in that there is insufficient evidence to establish misconduct on the applicant's part.
(2)	Procedural irregularity
	It is also said that the Director had acted in breach of the rules of natural justice and had deprived the applicant of a fair hearing.

23. In Form 86A, the applicant also challenged the Director's decision on the grounds of non-compliance with the procedures prescribed for a section 9 disciplinary enquiry and breach of Article 10 of the Bill of Rights Ordinance. These grounds were abandoned at the hearing by Mr Sit for the applicant.

Public Service (Administration) Order 1997 (Amendment) Order 2000

24. The PS(A)O 1997 was amended by the Public Service (Administration) Order 1997 (Amendment) Order 2000 with effect from 17 April 2000 (the amended order is hereafter referred to as "PS(A)O"). The amendments were announced by CSB Circular No.2/2000 on 27 March 2000. Section 5 of PS(A)O provides that the Chief Executive may, upon sufficient cause being shown, dismiss or suspend the office of or take such other disciplinary action against any public servant.

25. In respect of alleged misconduct of public servant that does not warrant dismissal or compulsory retirement, section 9(1) provides that the Chief Executive may cause an inquiry to be made into the conduct. By section 19(1), the powers of the Chief Executive under, inter alia, sections 5 and 9 may be delegated to any public servant or other public officer.

26. The procedures for conducting an inquiry under section 9 are set out in the Public Service (Disciplinary) Regulation ("PS(D)R") and in particular, part A of the Schedule thereto.

27. With the amendments to PS(A)O 1997 in 2000, the PS(D)R was also amended with effect from 17 April 2000. Of relevance to this application is the repeal of section 4 of the Principal Regulation, which provided that a public servant shall be called upon to make representations to exculpate himself before formal investigations were carried out.

CSB Procedural Manual on Discipline

28. A Procedural Manual on Discipline ("the Manual") was issued by the CSB to provide general guidelines on the procedures for taking disciplinary action in respect of misconduct. With the amendments to the PS(A)O and PS(D)R, the Manual was amended and updated in 2000.

29. In Chapter 1 of the Manual, paragraph 1.7 provides that :

"The principles of natural justice must be, and seen to be, followed when departments handled disciplinary cases."

The principles of natural justice are explained in paragraph 1.14 and 1.15 in these terms :

"	1.14	Disciplinary proceedings should be conducted in accordance with the principles of natural justice. The basic principles of natural justice include :
		. the rule against bias; and
		. the right to a fair hearing.
	1.15	To comply with the principles of natural justice, materials and documents forming part of the disciplinary proceedings must be given to the accused officer. He has the right to be heard and to make representations on the charges and findings made against him. He will have a chance for his case to be reviewed by persons other than his own supervisor. Departments should also provide assistance whenever possible to the accused officer to facilitate his defence."

30. Paragraph 1.17 explains that there are two types of disciplinary action : formal and informal. Paragraphs 1.18 and 1.19 explain further the different applications of them. The paragraphs read:

	"1.18	Informal disciplinary action should be taken for minor and isolated cases of misconduct, e.g. occasional lateness for duty. Minor misconduct, if frequent and repeated, should be taken seriously, and formal disciplinary action should be considered.
	1.19	Formal disciplinary action should be taken for serious misconduct or minor misconduct which is frequent and repetitive. While corruption is clearly a serious offence, lateness for duty, though minor, should be treated seriously if it persists over a prolonged period of time, and verbal or written warnings have be been ignored by the officer. It is not necessary to impose informal punishment before commencing formal disciplinary action. Each case has to be considered in the light of its special circumstances."

The procedures for taking formal and informal disciplinary action are set out in Chapters IV and V of the Manual respectively.

31. In Chapter IV, paragraph 4.2 provides that informal disciplinary action includes verbal and written warnings. Paragraphs 4.9 to 4.12 relate to written warnings. Specifically, paragraph 4.10 provides that:

"4.10

A written warning issued should consist of a summary of the facts leading to the warning and specify the particulars of the misconduct. It should explain clearly what the officer is being warned about and contain advice on how the officer can improve. It should also contain a caution that further misconduct within a year may lead to formal disciplinary proceedings."

Paragraph 4.11 further provides, inter alia, that the officer should, upon receipt of a written warning, be advised of his right to appeal and to seek assistance from other persons in preparing his appeal, and of the fact that the warning is subject to the review by the Head of Department (or his delegated officer) and that the warning will normally debar an officer from promotion and appointment for one year.

32. Under paragraph 4.13, a Head of Department is obliged to review on his own motion all verbal or written warnings to ensure that they are appropriate and consistent and should also determine any appeal swiftly. The effect of warnings is prescribed in paragraph 4.19, which reads:

"4.19

Verbal or written warning will normally debar an officer from promotion and appointment for one year. However, in exceptional circumstances when an officer has demonstrated remarkable improvement and good service and is suitable for promotion or appointment in all respects, his promotion or appointment may be considered. CSB should be consulted before such a recommendation is made."

The decision

33. According to the affirmation of To Siu Hun filed on behalf of the Director, the Director's conclusion that there was sufficient evidence against the applicant to establish the misconduct alleged against him was based on the following evidence:

(1)	The video tape recorded by the police on 5 November 1997
	The recording was undertaken intermittently at Tin Bo Restaurant from about 19:35 hours to after 22:00 hours. The video showed the applicant and three other HCOs taking meal at the restaurant. The applicant left the restaurant about two minutes before the others. About 13 minutes before the end of the video showing the departure of the officers, the video shots showed a clock that was inside a restaurant, nearby and the time shown on it was 21:48 hours.
(2)	Two statements of two police officers, Sgt 45585 and PC 21010
	In Sgt 45585's statement, he stated that at about 19:35 hours on 5 November 1997, he saw five HCOs entered Tin Bo Restaurant and they separately left the restaurant at 22:00 hours. The sergeant was responsible for recording the video tape. PC 21010 stated in his statement that at about 19:35 hours he saw several USD officers in uniform taking meal at Tin Bo Restaurant. Two of them left separately before the others left at about 22:00 hours.
(3)	The summaries of the records of ICAC interview of two HCOs who were also seen present inside the restaurant at the time of the incident. They identified the HCOs dining at the restaurant to include the applicant, themselves and one other HCO.

The first ground: Irrationality

34. It is common ground between counsel that a complaint of irrationality involves a high standard of proof. The approach, as formulated by Lord Greene M.R in Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223 at 233 is this:

"The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."

It is also said in R. v. Secretary of State for the Home Department, ex p. Brind [1991] 1 AC 696 at 751D per Lord Templeman that "On Wednesbury principles, the Court can only interfere by way of judicial review if the decision of the Home Secretary is 'irrational' or 'perverse'".

35. The main thrust of the applicant's contentions under this ground of irrationality is that there is insufficient evidence to support the Director's conclusion of misconduct. Specifically, it is said that there is no evidence that the applicant was inside the restaurant continuously between 19:35 and 22:00 hours, that the Director drew the wrong inference from the radio messages record ("the logbook") provided by the applicant, that the Director had not properly considered the discrepancies between the statements of the two police officers, and the Director had wrongfully assumed that the clock shown on the video was working properly.

36. For the purpose of assessing these specific complaints, it is necessary to look at the applicant's explanations on the incident. As noted above, the applicant had on 20 August 1998 rendered his explanations to his supervising officer. In summary, the applicant said that he could not recall the details of the incident since it took place some nine months ago. The applicant, however, recalled that in the three months after he took up his present post (i.e. after 6 October 1997) he did have meals with a SHCO Chow to discuss matters relating to the hawker section of Wanchai. The applicant said this might account for his slightly longer meal break on the day in question. The applicant also said that the time entries in his notebook (i.e. 20:00 to 21:15 hours) should be accurate. The applicant further stated that he had previously been questioned by the ICAC about his meal break, but he was not sure what was the length of overstaying alleged by the ICAC.

37. Plainly, the applicant had been given an opportunity to make representations about the incident, and he had taken it up. It was also open to him, had he so wished, to put forward witnesses or other forms of evidence. More importantly, it is apparent from the applicant's explanation that he did not have a positive case on the incident. Up to that stage, the applicant did not furnish any evidence about his whereabouts at the time alleged or on the exact duration of his meal break.

38. It is correct that the evidence relied upon by the Director does not show directly that the applicant was present inside the restaurant continuously. What the video tape does show is that the applicant was inside the restaurant and he was there when the clock in a nearby restaurant showed 21:48, and the tape runs for another 13 minutes before the applicant was seen leaving the restaurant. The actual time of the applicant's arrival and departure came from the two police officers' statements while the summaries of the ICAC records of interviews identify the applicant as being present inside the restaurant. On this evidence, there is no issue that the applicant was present inside the restaurant. The only question is when did he finish his meal. The issue of whether the applicant was inside the restaurant continuously between 19:35 and 22:00 hours is irrelevant because it is not the applicant's case that he had taken his meal or he had stayed inside the restaurant intermittently. Additionally, none of the three pieces of evidence contains a reference that the applicant had left the restaurant at some point in time. It is reasonable to infer that none of the HCOs, including the applicant, had left the restaurant before the conclusion of the meal.

39. On the logbook provided by the applicant, it was revealed in the applicant's appeal letter dated 22 December 2001. In it, the applicant disclosed copies of records of radio messages that suggest that the applicant had received and sent messages on an illegal hawking matter at Great George Street between 19:07 and 19:35 hours on 5 November 1997. Effectively, the applicant contended he was performing his duties between 19:07 and 19:35 hours and did not take any prolonged meal break. In response, the Director noted that Great George Street, where the applicant said he was performing duties, is only a few minutes walk away from Tang Lung Street, where the restaurant was. The Director took the view that even if the applicant's assertion that he had performed duties at Great George Street was accepted, it would not disprove the commencement time of the meal and could not prove that the applicant did not take a prolonged meal break, since Great George Street was only a few minutes walk away from Tang Lung Street.

40. The applicant's argument is that even if Great George Street and Tang Lung Street are within minutes of walking distance from each other, it does not necessarily mean that the applicant had prolonged his meal break. It is said that the Director, in referring to the logbook, had taken into account irrelevant consideration.

41. In my view, the applicant's argument has ignored the fact that the logbook was a piece of evidence introduced by him. As such, the Director was bound to consider it. It is also open to the Director to consider and comment on it. Secondly, the Director did not rely on the logbook as evidence or proof of the applicant having taken prolonged meal break. Indeed, the Director was merely responding to the applicant's argument when the Director stated that even if the applicant was performing his duties as alleged, it could not prove that the applicant had not taken prolonged meal break in view of the short distance between Tang Lung Street and Great George Street. This is a response that the Director is entitled to make. It cannot be said that the Director had taken into account irrelevant consideration.

42. As regards the statements of the two police officers, the applicant says that they contain the following discrepancies:

(1)	While Sgt 45585 stated that five HCOs entered the restaurant, DPC 21010 only mentioned "several officers". The summaries of the ICAC records of interview indicated that there were only four HCOs in the restaurant; and
(2)	While Sgt 45585 stated all five HCOs left the restaurant separately at 22:00 hours, DPC 21010 said two HCOs left separately first and the others left at 22:00 hours.

43. The applicant had raised these discrepancies in his appeal to the Director. The Director was of the view that these discrepancies did not materially affect the allegation of misconduct against the applicant. In his reasons for refusing the appeal, the Director pointed out that the video clearly showed the applicant having his meal with three other HCOs. The video also showed the applicant left the restaurant first followed by the other three officers about two minutes later. The Director further referred to the clock shown in the video, and the time shown on it was 21:48 hours. The Director considered that the fact that the video ran for another 13 minutes before showing the HCOs' departure from the restaurant is an indication that the police officers' account that the HCOs finished the meal break at 22:00 hours is accurate.

44. In my view, it is open to the Director to conclude that the discrepancies in the police officers' statements did not materially affect the case against the applicant. Firstly, as observed by the Director, the video clearly recorded the number of HCOs present and the manner in which they left the restaurant. Secondly, although it would appear that Sgt 45585 was mistaken as to the number of HCOs involved and his statement was at variance with what was recorded on the video, it does not necessarily lead to the conclusion that the two police officers' statements cannot be acted upon by the Director. The Director is entitled to have regard to the clock shown on the video and the playing time of the video thereafter in assessing the reliability of the police officers' account of the departure time of the HCOs.

45. Mr Sit submits that the Director cannot conclude on the accuracy of the police statements without conducting investigations and making enquiries into the discrepancies, citing the case of Coleen Properties Ltd v. Ministry of Housing and Local Government [1971] 1 WLR 433 at 437. That case concerns a compulsory acquisition of a building by a local authority for development of the nearby areas. The Council asserted that the acquisition was reasonably necessary for the satisfactory development of the clearance areas. As a result of objections received, the Inspector held a public inquiry and also undertaken a site visit to the building. In his report to the Minister, the Inspector stated that the building in question was a first class property and its acquisition was not reasonably necessary for the satisfactory development or use of the clearance areas, and recommended its exclusion from the compulsory purchase order. The Minister however rejected the report and recommendation. The Court of Appeal allowed the appeal of the building owners against the Minister's decision. Lord Denning M.R. held that the Minister was in error in reversing the Inspector's recommendation. It was said that there was no material on which the Minister could properly overrule the Inspector's recommendation since he only had the Inspector's report and he had not visited the building in question.

46. Relying on the case, Mr Sit submits that the Director should have made investigations into the accuracy of the police officers' statements before accepting them. In my view, the case of Coleen Properties Ltd is confined to its own facts and is readily distinguishable from the present case. As the Court of Appeal observed, other than the Inspectors' report, the Minister had no other material or evidence on whether the building was reasonably necessary for the satisfactory development of the cleared areas, which is a question of fact. In the present case, apart from the police officers' statements, the Director also had other materials and evidence, including the video tape. It is within the power of the Director to assess the police statements by reference to the other evidence before him. The conclusion that the two police officers had made accurate notes of the time of arrival and departure of the HCOs in their statements is one that the Director is entitled to draw.

47. As Mr Westbrook SC for the respondent points out, this court does not sit as an appeal court. It is not the court's function in judicial review proceedings to substitute its opinions or findings for that of the decision-making tribunal. The applicant has not shown that the Director's assessment of the police officers' statement to be so wholly unreasonable or perverse as to merit intervention by way of judicial review.

48. Mr Sit has argued that there is no evidence to show that the clock shown on the video was working properly at the material time, such that the Director was wrong in proceeding on the assumption that it was in good order. In my view, this is not a point open to the applicant. Throughout, the applicant had never challenged or doubted the accuracy of the clock. Mr Sit says that because the applicant was initially only shown one shot of the video, he was not alerted to the point. But the fact remains that the applicant did not make any challenge even after the second viewing of the video. Even in the Form 86A, the applicant did not raise any issue on the accuracy of the clock. In the absence of any challenge, the Director cannot be said to have acted irrationally in proceeding on the assumption that the clock was working properly. There is no basis for the argument that the Director should on his own motion investigate into the accuracy of the clock.

49. In short, the applicant has not shown the Director's decision to be irrational or perverse as to justify judicial intervention. The first ground therefore fails.

The second ground: Lack of a fair hearing

50. The second broad ground of the applicant's application is that he has been deprived of a fair hearing by reason of the Director's breaches of the rules of natural justice. In particular, the applicant complains that the Director only considered the matter on paper and did not conduct an oral hearing. It is said that the applicant has been deprived of an opportunity to produce and/or cross-examine witnesses. The applicant also complains that he was given inadequate opportunity to deal with the video and was not given copies of the summaries of the ICAC records of interview of two fellow HCOs.

51. There is no disagreement between counsel as to the relevant law. The principles of fairness are summarized in the oft-cited judgment of Lord Mustill in R v. Secretary of State for the Home Department, ex p. Doody [1994] 1 A.C. 531 at 560, which reads:

"Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken with a view to procuring its modification."

52. In R (on the application of Vetterlein) v. Hampshire County Council [2001] EWHC Admin 560, it was pointed out that:

"A fair hearing does not necessarily require an oral hearing, much less does it require that there should be an opportunity to cross-examine. Whether a particular procedure is 'fair' will depend upon all the circumstances, including the nature of the claimant's interest, the seriousness of the matter for him and the nature of any matters in dispute."

53. Plainly, the principles of fairness do not operate in vacuum. What is required of a fair hearing may vary from cases to cases. Whether a fair hearing entails an oral hearing and/or an opportunity to cross-examine the witnesses is dependent on the circumstances of the case in question. In my view, the reasons and purposes for requiring oral hearings and/or cross-examinations and, conversely, the prejudice suffered by reason of the absence of an oral hearing and/or an opportunity to cross-examine are important considerations in deciding whether an applicant has been deprived of a fair hearing on the ground that there is no oral hearing and/or no opportunity to cross-examine the witnesses.

54. In the present case, paragraph 1.15 in Chapter 1 of the Manual prescribes that in disciplinary actions, whether formal or informal, an accused officer should be given the materials and evidence against him, and be given an opportunity to make representations on the charges and findings against him. In respect of written warnings, paragraph 4.10 in Chapter IV of the Manual requires the written warning to set out a summary of the facts leading to the warning and the particulars of the misconduct. Paragraph 4.11 provides that the officer to whom a written warning is given should be advised of his right to appeal and of the fact that the warning is subject to review by the Head of his department. Other than these, the Manual does not prescribe any other procedures that have to be complied with before issuing a warning.

55. The applicant's argument that an oral hearing should be held is premised on the fact that a hearing had been scheduled but was called off subsequently. It is said that the applicant was all along expecting a hearing. Further upon receiving the letter dated 17 April 2001 informing that formal disciplinary enquiry would not be proceeded with, the applicant was expecting the Director to follow the procedure for informal disciplinary action.

56. As a starting point, the hearing, which was subsequently postponed, was scheduled at a time when the Director was proceeding with a formal enquiry of the incident. By the letter of 17 April 2001, the applicant was informed that formal disciplinary inquiry would not be proceeded with, and the Director would issue appropriate informal punishment. I agree with Mr Westbrook SC's submissions that an oral hearing was not necessary for a decision to issue informal punishment. It may be said that the Director could and should have invited the applicant to make further representations before finally issuing the informal punishment. But this has to be considered against the fact that the applicant had, up to that stage, been invited to make representations on no less than three occasions. He had taken up one of these invitations but not the others. The applicant had also when lodging his appeal made representations on his case. In my view, the non-holding of an oral hearing, when viewed against these backgrounds, cannot be said to be unfair.

57. More importantly, the applicant has given no indication on what would be achieved further through an oral hearing, or what actual prejudice has he suffered through the absence of an oral hearing. The applicant complains that he has no opportunity to call his witnesses and to cross-examine the police officers. But the fact that there is no oral hearing does not mean that the applicant was debarred from adducing evidence on his case. Indeed, he has adduced evidence on the radio messages record to substantiate his case that he was performing his duties at Great George Street some time between 19:07 and 19:35 hours. The applicant could have adduced other materials, including statements of his witnesses, even without an oral hearing, and he was fully aware of this. The applicant has, however, given no indications of what further materials or evidence he had wanted to adduce but was unable to do so because no hearing was held. As to the opportunity to cross-examine the police officers, it is of significance to note that the applicant had specifically indicated that he did not need to have the statements of these officers. This is inconsistent with his present complaint that he has no opportunity to cross-examine the officers.

58. As to the submission that the applicant was expecting the Director to follow the procedure for informal disciplinary action under the Guide, as noted above, the Guide does not prescribe any procedures for informal disciplinary action, including the issue of informal punishment or written warnings. Insofar as the requirements on the contents of a written warning, that had been complied with. I do not accept that there is procedural impropriety in the Director not holding an oral hearing.

59. Another aspect of this second ground of procedural impropriety relates to insufficient disclosure to him of the materials relied upon by the Director. By letter dated 16 July 1998, the applicant requested to be provided with the relevant evidence against him. Thereafter on 31 July 1998, he further enquired whether there was, apart from the video tape, any other evidence against him. By letter dated 10 August 1998, the USD declined these requests, relying on section 55 of Personal Data (Privacy) Ordinance, cap. 486. Mr Westbrook SC rightly concedes that it is doubtful whether section 55 prohibits the department from making the disclosure sought by the applicant. Mr Westbrook SC also fairly accepts that the refusal, not being justified by section 55, prima facie, amounts to a breach of procedural fairness. But the applicant reiterated his request for information when he lodged his appeal, and disclosure was duly made. Nevertheless, the applicant complains that he was not given copies of the summaries of the records of ICAC interview of his two fellow HCOs, and that he did not have sufficient opportunity to view and deal with the video tape evidence.

60. In respect of the summaries of the records of ICAC interview, they were withheld from the applicant as a result of the interviewees' refusal to consent to the disclosure. At any rate, it is not disputed that the applicant has been made aware of their contents, and he had also commented on them in his representations to the Director on appeal. There is no prejudice or unfairness resulting to the applicant by not being provided with copies of the summaries.

61. As for the video tape, the applicant had viewed it on two occasions. His request for a copy of it was, however, declined because the police had concerns over leakage of information on police operation. In the second affirmation of Lau Ying Yuen filed on 9 September 2003, shortly before this hearing, the applicant raised for the first time complaints on the quality of the video recording and the viewing arrangements. Although Mr Yuen said these complaints had been raised during the first viewing on 11 December 2001, this is not apparent from the Reply Slip signed by the applicant on that day. Neither did he make any complaints about the video tape and its viewing arrangements in his representations on appeal. The departmental record of the second viewing also does not show any complaints had been made on the viewing of the video tape.

62. More fundamentally, the applicant has not identified what case or defence he would like to advance on the video tape evidence. Mr Sit says that the applicant was deprived of an opportunity to challenge the accuracy of the clock shown on the video. I am unable to accept this submission. Even if he were provided with a copy of tape, there was nothing that he could have done to either verify or challenge the time shown on the clock, given that the recording by the police took place years ago. As previously noted, the applicant does not have a positive case on the incident. In my view, the applicant has not been able to specify the unfairness occasioned by not being given a copy of the tape or by the other complaints he made on the viewing arrangements.

Failure to give reasons

63. Additionally, Mr Sit has in his submission commented that the Director had dropped the charge of making a false entry in his notebook against the applicant, but had not given any reason for so doing. It is said that the Director would not have dropped the charge if he were satisfy on the evidence that the applicant had taken a prolonged meal break. Accordingly, it is submitted that the conclusion that the applicant was guilty of misconduct was wholly unreasonable.

64. Inherent in this submission is the assumption that the applicant faced two charges, one of taking a prolonged meal break, and another of making a false entry in the notebook. In reality, the applicant only faced one charge of misconduct. The prolonged meal break and the false notebook entry are the particulars to the charge. Hence, the written warning was issued against the applicant for misconduct. Accordingly, although the written warning of 4 May 2001 was in respect of taking a prolonged meal break, there was no abandonment of a charge of making a false entry in the notebook. The applicant's argument in this regard is misplaced.

65. As to the wider submission that the Director has failed to give reasons for his decision in the warning letter and for dismissing the appeal, I accept it would have been better for the Director to state clearly his grounds when he informed the applicant of his decisions. However, the Director did subsequently rendered his reasons for these decisions, and no procedural unfairness can be said to arise.

66. In Calvin v. Carr [1980] 1 A.C. 574 at 592-3, Lord Wilberforce recognized that it is possible for procedural defects in the original decision-making process to be cured by the appeal procedure. It was also pointed out that it is for the court to decide whether, at the end of the day, there has been a fair result reached by fair methods. In the present case, while the initial refusal to make full disclosure of the evidence against the applicant and the omission to give reasons for the decisions may amount to procedural defects, they have been cured subsequently and do not result in any procedural unfairness to the applicant as would merit judicial intervention.

Relief of retrospective promotion

67. In the circumstances, it has not been necessary to deal with the relief sought by the applicant. Suffice to mention that the applicant has no prospect of being awarded the remedies of retrospective promotion even if the grounds for judicial review had been made out. There is a missing link in the evidence since promotion is not a matter of right, but is dependent on a variety of considerations. The recommendation for promotion is only one of them. There is also no basis for a retrospective promotion, given that each promotion exercise is self-contained.

Conclusions

68. For the reasons stated above, the applicant's application for judicial review is dismissed. There is no reason for departing from the general rule of costs follow event. I therefore make an order nisi that the applicant pays the Director the costs of these proceedings, to be taxed if not agreed.