CHAN SAU FONG, SHIRLEY v. SECRETARY FOR THE CIVIL SERVICE

HCAL 107/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 107 OF 2002

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J U D G M E N T

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Introduction

1. The applicant in this matter is a registered psychiatric nurse employed by the Hong Kong Government. She seeks orders of certiorari to quash certain decisions made in the course of disciplinary proceedings against her.

2. The first decision is dated 2 August 2001. It was made by a disciplinary tribunal constituted in terms of the Public Service (Disciplinary) Regulation. In terms of that decision, the tribunal found the applicant guilty of misconduct.

3. The second decision flows from the first. It was made by the Secretary for the Civil Service ('the Secretary') and is contained in a letter dated 31 December 2001. In terms of that decision, the Secretary imposed upon the applicant the punishment of a severe reprimand and a fine equivalent to a reduction in salary of one increment point for a period of 12 months.

The background

4. In the course of her professional career, which commenced in 1983, the applicant has worked in a number of psychiatric hospitals. In January 2000, she was employed at the Castle Peak Hospital and was posted to Ward C. This is a confined ward for psychiatric patients. It consists of two dormitories, a dining room, a sitting room, a pantry, a toilet and a garden area.

5. On 16 January 2000, the applicant was the nurse-in-charge of Ward C's afternoon shift. A fire drill had been scheduled for that afternoon. It had been entered as such on the nursing staff duty list and on the ward diary. The applicant was responsible for overseeing the drill.

6. It speaks for itself that fire drills are an essential part of the routine of psychiatric hospitals. At the Castle Peak Hospital they are conducted several times a year. Persons who are mentally ill, mentally distressed or confused may not be able to look to their own best interests in the event of a fire. Smooth evacuation procedures, professionally managed, ensure their safety in the event of such an occurrence.

7. The applicant contends that the fire drill scheduled for 16 January 2000 was carried out at 4:30 that afternoon. Afterwards, she completed and submitted a fire drill report, remarking in the report that the evacuation of the 60 or so patients and staff to the garden area had on the whole gone smoothly. She made a similar entry in her Occupational Safety and Health Staff Training Record.

8. However, in a memorandum dated 31 January 2000, the applicant's supervisor reported to the Ward Manager that the fire drill may not have taken place and that a false report may have been submitted by the applicant. The supervisor had formed this opinion while interviewing other staff members in Ward C in order to up-date their training records.

9. In the result, a decision was made by the Secretary to institute a formal disciplinary inquiry in terms of s. 10 of the Public Service (Administration) Order. Clearly, the applicant's alleged misconduct was considered in a serious light: hence the choice of s. 10 as opposed to s. 9 of the Order. The relevant part of s. 10 reads :

"(1)	If it is represented to the Chief Executive that an officer has been guilty of misconduct, and the Chief Executive is of the opinion that the misconduct alleged may be serious enough to warrant the dismissal or compulsory retirement of the officer, he may cause an inquiry to be made into the officer's conduct in such manner as may be prescribed by regulations made by the Chief Executive under section 21(2).
(2)	If after such inquiry the Chief Executive is of the opinion that the officer has been guilty of misconduct, he may inflict such punishment upon the officer as may seen to him to be just."

By contrast, s. 9 reads :

"(1)	If it is represented to the Chief Executive that an officer has been guilty of misconduct, and the Chief Executive is of the opinion that the misconduct alleged is not serious enough to warrant proceedings under section 10, he may cause an inquiry to be made into the officer's conduct in such manner as may be prescribed by regulations made by the Chief Executive under section 21(2).
(2)	If after such inquiry the Chief Executive is of the opinion that the officer has been guilty of misconduct, he may inflict such punishment, other than dismissal or compulsory retirement, upon the officer as may seem to him to be just."

10. Under cover of a letter dated 30 March 2001, the applicant was informed of the intended proceedings and was later supplied with particulars of her alleged misconduct. The particulars were expressed as follows :

"You, Ms CHAN Sau-fong, misconducted yourself while you were employed by the Department of Health as Registered Nurse (Psychiatric) in the Castle Peak Hospital (CPH), in that :

(a)	on 16.1.2000, you failed to conduct a fire drill for Ward C of the CPH as instructed by Miss LI Wai-fong, Nursing Officer (Psychiatric);
(b)	you made false entries in the Fire Drill Record to record that you had conducted a fire drill at 4:30 pm on 16.1.2000 while in fact you had not; and
(c)	you made false entry in your Occupational Safety and Health Staff Training Record to record your attendance of a fire drill conducted on 16.1.2000 while in fact you had not."

11. The hearing before an Inquiry Committee ('the tribunal') took place on 4 and 5 July 2001. The tribunal (consisting of two persons) had the services of an assisting officer, an executive officer in the Department of Health. The applicant was entitled to have a 'friend' to assist her and chose an ambulance man from the Fire Service Department.

12. The tribunal handed down its findings on 2 August 2001. In the conclusion to its findings, the committee wrote that it was satisfied that 'the particulars of the alleged offences had been proved' and that the applicant was therefore guilty of the three instances of misconduct with which she had been charged.

13. The applicant was informed of the committee's findings in a letter dated 12 September 2001. The letter made it plain that the gravity of her misconduct was such that removal from the service was one of the punishments that would now have to be considered. However, after consideration, the Secretary was satisfied that the applicant's removal from the service was not warranted and the punishment referred to earlier in this judgment was imposed.

The grounds of challenge

14. The applicant has sought to bring up and quash the findings of the tribunal on three grounds; namely, on the basis that :

(a)	the committee erred in law in adopting the wrong standard of proof and/or shifting the burden of proof to the applicant;
(b)	the proceedings were vitiated by a material procedural impropriety, and
(c)	the findings of the committee were unreasonable in that there was no evidence or insufficient evidence upon which it could in law come to those findings.

The first ground : standard of proof/shifting of the evidential burden

15. In its findings, the tribunal made one direct reference to the applicable standard of proof. On page 12 of its findings, it wrote :

"We are told that the standard of proof to be applied in this Inquiry Hearing is that of common sense and professional judgment."

16. Common sense and professional judgment, of course, are the tools that a disciplinary tribunal may use to consider and weigh evidence placed before it. As such, they are no doubt used to determine the correct standard of proof to apply but they are not themselves a statement of that standard. The direction which the tribunal gave to itself therefore is erroneous. On its face, it indicates a fundamental misunderstanding of the nature of the standard of proof.

17. It would appear that the tribunal directed itself as to 'common sense and professional judgment' because that phrase appears in a document supplied to both the tribunal and the applicant prior to the commencement of the disciplinary hearing, the document being titled : Guide for Inquiry Officers, Inquiry Committees, Assisting Officers and Accused Officers Involved in Disciplinary Inquires under the Public Service (Administration) Order, sections 9 or 10. In particular, paragraph 12 of the Guide reads :

"Standard of proof

On the question of standard of proof, the Inquiry Officer/Committee must apply common sense and professional judgment and accord proper weight to the statements tendered as evidence. The Inquiry Officer/Committee, in applying his/their common sense and professional judgment, must be satisfied on the evidence that the particulars of the misconduct have been proved. In reaching his/their conclusion he/they should have regard to the gravity of the matter and the seriousness of the possible consequences for the accused officer."

18. Mr Chow, counsel for the respondent, argued that, as the Guide was made available to both the tribunal and the applicant prior to the commencement of the hearing, it must be taken that the tribunal, in directing itself in the manner it did, adopted a form of 'shorthand'. In reality, therefore, it directed itself in accordance with the full passage from the Guide and not merely in accordance with words plucked from the passage.

19. I am not persuaded by that argument. First, the tribunal gave no indication that its direction was to be taken as a form of shorthand. There was, for example, no reference, direct or implied, to paragraph 12 of the Guide. Second, the fact that the Guide was supplied is no evidence - certainly not in the face of ambiguous findings as to its contents - that it was understood or correctly applied. In any event, it seems to me that paragraph 12 does not give clear, easily understood guidance. To the contrary, the final sentence would confuse rather than assist a lay person.

20. The fact that disciplinary proceedings may themselves be civil in nature does not mean that the civil standard of proof; that is, on a balance of probabilities, is always to be applied. It is now settled that the standard of proof to be applied must be commensurate with the gravity of the charge.

21. In Attorney General v Tsui Kwok Leung [1991] 1 HKLR 36, the Court of Appeal laid down what may be described as the general rule when it said (at 45) :

"Generally in civil proceedings, which, in our opinion, must include those conducted within the parameters of the Police (Discipline) Regulations, it remains good law that the civil standard of proof obtains albeit when considering, for example, an allegation of fraud, a higher degree of probability will be required than when considering an allegation of negligence. The degree of probability, falling short of satisfaction beyond all reasonable doubt, must be commensurate with the occasion even when the liberty of the subject is [not] at risk."

22. This was qualified by the Privy Council in McAllister v General Medical Council [1993] AC 380 in which Lord Jauncey said (at 399) :

"In charges brought against a doctor where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the onus and standards of proof should be those applicable to a criminal trial. However there will be many cases, where the charges which a doctor has to face before the committee could not be the subject of serious or any criminal charges at all. The committee is composed entirely of medical men and women learned in their profession and to require that every charge of professional misconduct has to be proved to them just as though they were a jury of laymen is, in their Lordships' view, neither necessary nor desirable. What is of prime importance is that the charge and the conduct of the proceedings should be fair to the doctor in question. ..."

23. In Tse Lo Hong v Attorney General [1995] 3 HKC 428, the Court of Appeal was satisfied that the complaint placed before the disciplinary tribunal was of sufficient gravity to demand a standard of proof that was the equivalent of or close to the criminal standard of beyond all reasonable doubt : Litton VP put it in plain terms (at 440) :

"In my judgment, the matter can be approached very simply. Charge A was, in essence, one of indecent assault. This carried severe penalties for the 'defaulter'. To categorize the proceedings as 'civil' does not end the matter. The standard of proof must be commensurate with the gravity of the charge. Here, the tribunal seems to have required the prosecution to prove the case on a mere 'balance of probabilities' which in my judgment is plainly unacceptable."

Bokhary JA, in concurring, said (at 442) :

" ... the criminal standard of proof is not applicable simply because a serious disciplinary charge is involved. But where the events giving rise to such a disciplinary charge would also found serious criminal charges, then it may be appropriate to apply that standard."

24. In Dr Lai King Shing v Medical Council of Hong Kong [1996] 1 HKC 24 (at 27), Keith J (as he then was) looked to the approach of applying a standard of proof commensurate with the gravity of the case and said :

"I agree entirely with this approach. It has the inestimable advantage of flexibility, and does not tie the hands of the disciplinary tribunal to a particular standard of proof, whatever the nature of the allegations and whatever the consequences for the person facing the disciplinary action. The more serious the complaint, and the more dire its consequences, the greater the degree of proof required to prove it, even though the degree of proof required falls short of proof beyond reasonable doubt."

25. In the present case, as I have earlier emphasized, the Secretary chose to proceed against the applicant under s. 10 of the Public Service (Administration) Order rather than under s. 9. The Secretary was therefore of the opinion that the alleged misconduct, if proved, may warrant dismissal or compulsory retirement. The allegations included those of falsification of documents. The applicant therefore stood in risk of her career, a career that he had pursued with the Government since 1983.

26. It follows, in my view, that the tribunal was obliged to turn its mind to the standard of proof that it felt was commensurate with the gravity of the complaints made against the applicant.

27. The tribunal chose to articulate how it had directed itself as to the appropriate standard. But, as I have said, it did so in a way that was not only erroneous in law but, on its face, indicated a fundamental misunderstanding of the concept itself. In light of that, I do not see how it can be said that the tribunal must at least have turned its mind to the commensurate standard to apply or indeed have understood that it was necessary to do so.

28. The fact that the tribunal, in its conclusion, said that it was satisfied that the particulars of the alleged misconduct 'had been proved' does not, in my view, save the matter.

29. As for paragraph 12 of the Guide, even if that is somehow incorporated into the Tribunal's findings, I do not see that it saves the matter either. As already cited, the second part of that passage reads :

"The Inquiry Officer/Committee, in applying his/their common sense and professional judgment, must be satisfied on the evidence that the particulars of the misconduct have been proved. In reaching his/their conclusion he/they should have regard to the gravity of the matter and the seriousness of the possible consequences for the accused officer."

30. In light of the authorities to which I have made reference, it would appear that those words are intended to emphasise that, the more serious the complaint and the more dire its consequences, the greater the degree of proof required to prove it. But nowhere is that actually stated. All that is said is that, in reaching its conclusion, a tribunal should have regard to gravity and consequence. But how is that to be done? That is where - critically - the passage is silent.

31. Mr Chow, counsel for the respondent, argued that even if the tribunal applied the wrong standard, it would have made no difference to the outcome. Clearly, the tribunal understood that the particulars had to 'proved' and it gave detailed consideration to the evidence, making perfectly legitimate findings of fact.

32. But the difficulty Mr Chow faced was that the tribunal, in articulating what it saw as the required standard of proof, demonstrated that it may not have understood the concept at all. In addition, in face of a fundamental error of law, the discretion vested in this Court is limited. I do not believe that I can express it better than Deputy High Court Judge Andrew Cheung has done in a recent judicial review judgment (Law Chun Loy v Secretary for Justice and Another (unreported) HCAL 3838/2001) in which he said :

"Mr Kwok, appearing for the Respondent, took me through the record of proceedings and evidence before the Tribunal and sought to demonstrate how strong the prosecution's case was or perhaps more correctly, how poor the defence case was. But despite the good effect of Mr Kwok, I do not think that this is of much help in this case. I do not sit here to try the disciplinary charge. There is clearly an error of law on the face of the record. The wrong approach and wrong burden of proof were applied by the Tribunal in evaluating the case as presented before it and in particular, in evaluating the defence case put forward by the Applicant. It is not for me to substitute any finding based on the material available before the Tribunal for the finding of the Tribunal, nor is it legitimate for me to seek to uphold the finding of the Tribunal by reference to the evidence presented before the Tribunal. Given the fundamental mistake relating to the burden of proof, there is no alternative but to quash the decision of the Tribunal."

33. I turn now to the applicant's second challenge concerning the standard and burden of proof; namely, that the tribunal erred in law in shifting the burden to the applicant. As I understand it, this challenge is based on one passage in the tribunal's findings (at 16) which reads :

"The Inquiry Committee noted that, other than the evidence given by the accused, there was no further evidence suggesting that a fire drill had been conducted 16.1.2000. The accused did not call any witness to support her allegations."

34. I find no substance in the suggestion that in this passage the tribunal had placed some form of evidential burden on the applicant. When read in context, that is clearly not the case. As Mr Chow, for the respondent, commented : the passage is no more than an observation. The judgment, as a whole, makes it plain that the tribunal did not look to the applicant to disprove the case against her.

The second ground : procedural impropriety

35. In coming to its finding that the applicant had not conducted a fire drill on the afternoon of 16 January 2000, the tribunal naturally looked to the evidence of other members of staff who had been on duty in Ward C that afternoon. In the event, at the hearing, although all the staff were called, only one member of staff testified positively that to her memory there had been no drill. This witness was considered by the tribunal to be 'firm, reliable and consistent' in her evidence.

36. All of the other members of staff, including one of the health care assistants named Le Thi-phung, testified that they could not recall if there had or had not been a drill on 16 January 2000. The tribunal was clearly suspicious of this group memory loss and commented :

"The Committee found that the evidence given by W2, W3, W4, W5, and W8 was incomplete and did not reveal the whole and true picture of the incidents both on 16.1.2000 and some time between late January and mid February 2000 [the period of initial investigation]. Having thoroughly reviewed the witnesses' accounts, the Committee considered not to attach any weight to their evidence in deciding the case."

37. However, unknown at the time of the hearing to both the tribunal and the applicant, during the earlier course of investigation a senior member of the administrative staff at the hospital had drawn up a questionnaire and served it on the staff members. It appears that the questionnaires were filled out by the staff in late March or early April 2000, within three months of the 16 January. One of those questionnaires was completed by the health care assistant, Le Thi-phung. When asked in the questionnaire whether there had been any fire drill in Ward C on the 16 January 2000, she ticked the box that said 'yes'.

38. Later, however, on 7 June 2000, when she was interviewed, she said :

"I ... do not recall whether I had taken part in a fire drill at Ward C of Castle Peak Hospital on 16 January of this year. I only remember that from January of this year until now, I had taken part in one fire drill at Ward C of Castle Peak Hospital, but the time and date could not be recalled. I remembered that the supervisor responsible for that occasion of fire drill was Miss Chan Sau-fong. [the applicant]"

As to when that one fire drill had taken place, it does not appear that Ms Le had the benefit of being shown or reminded of her earlier questionnaire.

39. Mr Pun, for the applicant, submitted that if the applicant had known of the early questionnaire completed by Ms Le she could have used that document to remind Ms Le of what she had said relatively early in the course of investigations and by that route it is reasonable to anticipate that the witness may have confirmed her early positive recollection. There would therefore have been a witness to support the applicant's evidence that a fire drill had taken place.

40. Mr Pun contended that the failure of the inquiry administration to supply the applicant with the questionnaires constituted a procedural impropriety and that this was so even though the tribunal and the tribunal's officer were also ignorant of them or at least of the one completed by Ms Le.

41. The principle upon which Mr Pun relied was referred to by Stock J (as he then was) in Jiang Enzhu v Lau Wai Hing Emily [1999] 3 HKL 8 (at 35) :

"There is a line of cases, restricted it seems to criminal or quasi criminal proceedings, in which the courts have been prepared to exercise their supervisory jurisdiction to quash proceedings tainted by material non-disclosure or other unfairness or mishap, though the failing is not that of the tribunal but rather that of a prosecutor or other party to the proceeding, and even where the faulty conduct is not dishonest."

42. While the line of cases considered by Stock J were criminal or quasi-criminal in nature, it does not seem to me that the principle should be so restricted and may properly be extended to include cases, such as the present, where a person faces disciplinary proceedings. I say this because the principle is based on the imperatives of fairness. See, for example, R v Leyland Justices, ex parte Hawthorn [1979] 1 QB 283 (at 286) in which Widgery CJ said :

" ... if fraud, collusion, perjury and such like matters not affecting the tribunal themselves justify an application for certiorari to quash the conviction, if all those matters are to have that effect, then we cannot say that the failure of the prosecution which in this case has prevented the tribunal from giving the defendant a fair trial should not rank in the same category.

We have come to the conclusion that there was here a clear denial of natural justice. Fully recognizing the fact that the blame falls on the prosecutor and not on the tribunal, we think that it is a matter which should result in the conviction being quashed."

43. In my view, the simple question may be asked : has the denial to the applicant of the questionnaires denied her a fair hearing? If so, then fairness demands that she should not be prejudiced by that unfairness.

44. In this regard, see R v Criminal Inquiries Compensation Board, ex parte A [1999] 2 AC 330 (345) in which Lord Slynn said :

"What happened in these proceedings was a breach of the rules of natural justice and constituted unfairness. It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness."

45. Objectively, has there been unfairness in the present case? I believe there has. It is not for this Court to re-visit all the evidence and effectively re-try the matter to assess the degree to which the availability of the questionnaires to the applicant may or may not have affected the outcome. That would be a sterile exercise in supposition. It is sufficient, I believe, to note that there was only one staff member able to testify that there had not been a fire drill. Reliance was placed on this witness by the tribunal which noted that the applicant herself had not been able to call a witness to give support to her contention that there had been a drill. But Ms Le, of course, if she had chosen to follow what she had indicated in her questionnaire, would have constituted that witness.

46. There is no such thing as a technical breach of the rules of fairness. But in this instance a matter of substantive fairness is being considered; namely, evidence, not without its own weaknesses but nevertheless of some potential weight, which was denied to the applicant at the hearing.

47. In the circumstances of this case, therefore, I am satisfied that, through no fault of her own (indeed, it seems through no fault of the tribunal or the tribunal's officer), the failure to make the applicant aware of the contents of the questionnaires amounted to a material unfairness and thereby vitiated the proceedings.

The third ground : the findings were unreasonable

48. This third ground, if pursued, would lead the court into a detailed examination of the evidence to determine whether, as the words are used in their public law context, the findings were perverse or irrational.

49. But as I have already found that the proceedings were vitiated by an error of law and by a material breach of fairness, I see no purpose in embarking on a detailed examination of the evidence. This is especially so as it is my intention to bring up and quash the decisions but not to make any order that prevents the Secretary from deciding that there should be a fresh hearing before a new tribunal. If the Secretary was to make that decision, comments by this Court as to the weight of the evidence may serve as an unwarranted intrusion.

50. There may, of course, be occasions when the evidence is so manifestly lacking that it would be wrong to invite a further perverse or irrational finding by a tribunal. But on a consideration of the evidence that has been presented to me in the papers, I am satisfied that the present case is not such a case.

Conclusions

51. For the reasons given, orders of certiorari are granted bringing up and quashing the two decisions.

52. Costs are awarded to the applicant.