RE NGAI KIN-WAH

1985 No. MP 2911

 

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Headnote

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JUDICIAL REVIEW - hearing of disciplinary charge by senior officer under Customs and Excise Service (Discipline) Rules - principal witness for prosecution an accomplice - applicant not allowed to cross-examine witness on previous statement - adjudicator calling witness, but not allowing any cross-examination by prosecutor or applicant - procedural improprieties led to denial of natural justice - finding and punishment quashed - review of punishment by Commissioner - dismissal substituted for lesser punishment - not within Commissioner's legal powers to impose dismissal upon a review.

1985 No. NP 2911

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is an application for judicial review of certain decisions made as a result of disciplinary proceedings instituted against the applicant in 1985 under the Customs and Excise Service (Discipline) Rules, made pursuant to the Customs and Excise Service Ordinance (Cap. 342). On the 2nd October 1985, the applicant was found guilty of a disciplinary offence of prejudicing the good order and discipline of the Customs and Excise Service. That finding was made by Senior Superintendent S.B. Lee, who presided at the hearing which took place on the 25th September 1985. For this single offence, Mr. Lee imposed two punishments : deferment of increment and severe reprimand. Such double or multiple punishments are apparently authorised by Rules 15 and 16. These punishments were subsequently reviewed by the Commissioner of Customs and Excise, who is also the Commissioner of the Customs and Excise Service, under powers conferred on him by Rule 19. Precisely how, when and by whom this review process was carried out is not entirely clear. But the practical result was that the Commissioner purported to substitute dismissal for the two punishments imposed by Mr. Lee.

2. Both decisions are now challenged on the ground of "procedural impropriety". The Commissioner's decision is also challenged on the ground of "illegality". That of Mr. Lee is also challenged on the ground of "irrationality". I take these three descriptions of the present scope of judicial review of administrative action from the speech of Lord Diplock in Council of Civil Service UnionS v. Minister for the Civil Service [1985] A.C. 374 (at pp. 410-411):

"Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call "illegality," the second "irrationality" and the third "procedural impropriety. " That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of "proportionality" which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.

 

By "illegality" as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

 

By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223).  It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. "Irrationality" by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.

 

I have described the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly ` laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. "

In my view, the "irrationality" ground is one which judges should approach with caution. Apart from avoiding the temptation to substitute their assessment of the witnesses or material for that of the tribunal charged with that function by the relevant legislation, they should be slow to criticise such tribunals for failing to express the reasons for their decisions with the same particularity which they impose upon themselves or expect of their brethren.

3. The single charge preferred against the applicant alleged that on the 13th April 1981 he improperly involved himself with cargo clearance whilst off duty by requesting another customs officer (73137) to stamp a set of Shipment Release Form bearing the purported signature of Senior Inspector Yu Wai-ming with a "RELEASED" chop. This conduct allegedly took place at about 1 pm. on the first floor of the Aircargo Terminal at the airport. Apart from its likely effect on the witnesses' memories, nothing turns upon the delay of some 4½ years between the date of this alleged offence and Mr. Lee's findings. It is briefly explained in the applicant's letter exhibited as "NKW-4" to his supporting affirmation. Apparently he underwent two criminal trials which resulted in acquittals. The present charge was considered by another adjudicator in 1984 and resulted in a finding of guilt which was the subject matter of a successful application for judicial review before Mantell J. in 1985. I have not been referred to the details of these proceedings, but I was informed of the basic reasons for that finding being quashed and a re-hearing being directed.

4. The adjudicator heard all the evidence at the hearing on the 25th September 1985. The prosecutor relied principally upon the evidence of Kwok Kong-wing (C.O. 73137), who was in reality the only witness to connect the applicant with the alleged offence. The applicant also gave evidence denying, inter alia, that he went to the Aircargo Terminal on the day in question. Oddly enough, Senior Inspector Yu Wai-ming was not called as a witness. There was accordingly no evidence that the Shipment Release Forms produced at the hearing were not signed by him. Having regard to the words of the charge, I am not persuaded that such proof was unnecessary. But, as it has not been made the subject of any direct complaint by the applicant, I must assume that he regards it as having no bearing on the central issue of whether he approached Kwok Kong-wing on the 13th April 1981, whilst off-duty and dressed in plain clothes, on the first floor of the Aircargo Terminal. The fact that Senior Inspector Yu was not called as a witness was referred to in ground 1(b) of the Amended Statement made pursuant to Order 53, but only in connexion with Mr. Kwok's inability to identify forms shown to him at the hearing. The point which the applicant seeks to make by this complaint is not clear. Insofar as it suggests that prejudicial material was introduced at the hearing, there is absolutely no indication that the adjudicator allowed it to influence any of his findings.

5. The applicant complains that the prosecutor was allowed to put leading questions to Mr. Kwok. That was the case. But I do not consider that this resulted in any unfairness. This unfortunate method of adducing evidence did not affect the essential issues of the case and, in any event, would merely go to the reliability or weight to be given to such evidence. In my view, this particular complaint falls into the same general category as those set out in paragraphs 2(a), (b), (c) and (d) of the applicant's Amended Statement. They amount to no more than a general criticism that the adjudicator did not indicate whether or how he evaluated certain features of the evidence. Whilst it is true that he did not expressly do so in his Statement of Findings, it does not follow or appear that he did not properly evaluate these matters. These omissions are not, in my view, sufficient to entitle this court to conclude that the applicant did not get a fair hearing.

6. Paragraphs 2(e), (f) and (g) of the applicant's Amended Statement, on the other hand identify complaints which are or appear to be more substantial. Paragraph 2(e) refers to the absence of any evidence that Mr. Kwok was trying to victimize the applicant "in order to protect himself or other persons as it was so alleged by the [applicant] in the cross-examination. " On behalf of the applicant it is contended that this suggested that the adjudicator was imposing on the applicant a legal burden of proving that he was being victimised, which would be a misdirection of law, and indicated that the adjudicator had completely overlooked the fact that the applicant did give evidence that he did not go to the airport on the day in question, and the further fact that he was never cross-examined on his allegation of being victimised.

7. Looking at the relevant part of the adjudicators Statement of Findings (para. 9) in its proper context I do not think that it can fairly be said that he misdirected himself on matters of law or fact. He was merely saying that, on the material before him, he ruled out the probability of "victimisation" as a reason for disbelieving Mr. Kwok's account. On the material before him, the adjudicator was entitled to express that view. In his Statement of Findings he never suggested that any burden of proof rested upon the applicant. Indeed, the only basis for suggesting that the adjudicator thought that the applicant did bear a burden of proving "victimisation" is to be found in Mr. Lee's affirmation sworn and filed in these proceedings on the 14th February, 1986, i.e. some six weeks after the filing of the applicant's statement and some 3½   months after his Statement of Findings. It appears from paragraph 8 of that affirmation that Mr. Lee did consider that it was up to the applicant to substantiate his allegation of "victimisation. "

8. Speaking for myself, I share the doubts, expressed by Mr. Van Burren when the matter first came before me, regarding the admissibility of Mr. Lee's affirmation. When the administrative decision is one which has been made on the basis of some policy decision by the executive branch of Government, possibly on the basis of facts which are not known by, or revealed to the applicant, I can appreciate the value of subsequent evidence by the public officer in question. However, when the administrative decision is one reached after a quasi-judicial proceedings which closely resembles that of a normal hearing before the ordinary civil courts, I consider that further evidence from the public officer charged with judicial functions is unnecessary or unhelpful. In the present case Mr. Lee's affirmation tends to cast doubts upon what was set out in his Statement of Findings. But, with regard to this complaint, I do not think that the adjudicator was really saying that a legal burden of proof rested upon the applicant. I think that it is more likely that he was saying in his affirmation that the applicant had an evidential burden of adducing evidence of victimisation before it could be considered as a serious probability. On its own, that is not a ground for interferring with the decision, but it has a bearing on the other grounds put forward on behalf of the applicant.

9. In my view the complaints referred to in paragraph 2(f) and (g) of the applicant's Amended Statement should be taken together. The first alleges that in arriving at his finding of guilt the adjudicator actually relied upon the evidence of Senior Inspector Lee Wing-kai, in spite of assuring the applicant at the hearing that the Inspector's evidence would not be admitted against him. Before considering whether the adjudicator did rely on this evidence unfairly or at all, it is necessary to explain how Senior Inspector Lee came to give evidence.

10. Although Kwok Kong-tiring had said in evidence, and in a previous statement (Exh. NKW-6), that Inspector Lee had witnessed his placing of the "RELEASED" chop on the relevant forms and was told that it was being done because Senior Inspector Yu Wai-ming had forgotten to do so, Senior Inspector Lee Wing-kai was not called as a witness by the prosecutor. He was not called by the applicant. After the final addresses of the applicant and the prosecutor the adjudicator decided to call Inspector Lee to give expert evidence. Before Inspector Lee gave evidence the adjudicator addressed the applicant and the prosecutor in the following terms:

"Before I call Mr. Lee in to give expert evidence, I wish to explain to Mr. Ngai that Mr. Lee will not be the witness for the Prosecution or for you. He is called by me to assist me in the determination of some issues. The Prosecutor and the Defaulter are not allowed to question Mr. Lee. "

 

Some 30 minutes later, during which time Inspector Lee had been questioned by the adjudicator, the latter announced:

"The information given by SI Lee will not be admitted as evidence against Mr. Ngai. It would only serve to clear my doubts on how these documents were being processed. "

 

In paragraph 8 of his Statement of Findings the adjudicator stated :

"On conclusion of all the evidence and final address delivered by the Defaulter and the Prosecutor, I decided to call for the appearance of Senior Inspector Lee Wing-kai to give expert evidence on the proper processing of Shipment Release Forms by the Customs Officers at the Airport Cargo Terminal during his attachment thereto in 1981. I found SI Lee's evidence very informative and useful in my deliberation of this case. "

 

In the final paragraph of his Statement of Findings he said:

"However having consideration to the object and reasons of cargo examination by Customs at the Airfreight Terminal and to all the circumstances of the case, I found the Defaulter's conduct highly improper and seriously prejudiced the good order and discipline of the Customs and Excise Service. "

 

11. Miss Hartstein submitted that the adjudicator was not relying on the evidence of Inspector Lee to support his findings and that, when he referred to the "object and reasons of cargo examination" he was merely relying upon his own experience, as he was entitled to do. I accept entirely that an adjudicator is entitled to use his own expertise, skill, or special knowledge acquired from experience of his work within a disciplined force or department. But, with the utmost respect, she has not really answered the applicant's complaint that the adjudicator used his undoubted power to call a witness in a manner which was grossly unfair to the applicant. Apart from the adjudicator's clear statement that he regarded this evidence as "very informative and useful" in his deliberation, it is, in my view, clear that the adjudicator did rely upon the evidence of Senior Inspector Lee in order to come to his finding of guilt. If his ultimate findings were based solely upon the other evidence and his own experience, there was absolutely no need to take any evidence from Inspector Lee. In my view, the only reason for calling Inspector Lee as a witness was to prove that the alleged conduct of the applicant was "improper". On that aspect of his evidence alone, the adjudicator should have permitted cross-examination of Inspector Lee. But he was also asked about a specific and important piece of the evidence of Kwok Kong-wing, namely that he reported to Inspector Lee that Senior Inspector Yu Wai-ming had forgotten to stamp a chop on the form, and Inspector Lee witnessed him putting the chop on the form. Inspector Lee said in answer that he couldn't remember. Whether he couldn't remember because of lapse of time, or because such incident probably did not happen, is not known because he was not asked any further questions. Yet, according to his evidence on the correct procedures to be followed when handling the relevant forms, what Rack Kong-wing was doing in his presence was clearly and essentially improper. As the second officer in command at the Air Cargo Division at the material time, one might reasonably expect him to remember whether such improper conduct occurred although he might not remember the precise time of its occurrence or the persons involved.

12. Furthermore, it is reasonable to infer that he would have been asked questions about a similar incident which allegedly occurred in October 1981 as he was named in Mr. Kwok's previous Statement (Exh. NKW-6). I do not know if Inspector Lee made a statement to any officer of the Investigation Division or Unit of the Customs and Excise at that time or, if he did, whether its contents would have helped him to refresh his memory in 1985 or would have contradicted his evidence before the adjudicator. An avenue of inquiry, which was opened up by the adjudicator's decision to ask Inspector Lee about matters directly relevant to the specific charge before him and which might have resulted in further evidence material to that charge and the credibility of Kwok Kong-wing being elicited, was effectively and authoritatively closed by the adjudicator's refusal to allow any questioning of Inspector Lee by the prosecutor or the applicant and the assurances given to the applicant before and after Inspector Lee gave his evidence. The latter were, in my considered view, somewhat misleading having regard to the subsequent Statement of Findings.

13. Lastly, complaint is made of the adjudicator's refusal to allow the applicant to cross-examine Kwok Kong-wing with regard to his statement made on the 27th October 1981 (Exh. NKW-6). There is no doubt that this happened, as the transcript of the last few lines of the applicant's questioning of this witness clearly shows. It reads :-

"Q. The statement you made on 27.10.81 (stopped by the Adj.)

 

Adj. Mr. Ngai please confine your questions to what PW2 has said in the examination-in-chief.

 

Q. I have no more question. "

 

This conduct of the adjudicator was doubly unfortunate, to say the least. Firstly, it deprived the applicant of an opportunity to undermine the credibility of Kwok Kong-wing by bringing out inconsistencies and possible contradictions between his evidence and what he apparently said in his first statement some 6 months after the relevant date. Secondly, it meant that one of the reasons why Mantell J. quashed the earlier decision and ordered a re-hearing was completely ignored. At the hearing in 1984, the applicant was unable to attack the credit of the witness by this form of cross-examination because he was never given copies of the witness' statements. At the hearing in 1985, he had the statements, but was prevented from making use of them. Whatever mistakes were made at the earlier hearing, it was, in my respectful view the clear duty of the adjudicator, and all other persons involved in the further effort to establish this disciplinary offence against this applicant, to ensure that the re-hearing was conducted in accordance with the ruling and guidance of this Court. Unfortunately and regrettably, that did not happen.

14. In spite of these legitimate criticisms of the re-hearing, Miss Hartstein quite properly reminded me that the Court must still be satisfied that there has been a denial of justice. In the context of these last two complaints, she contended that a denial of cross-examination would not be fatal if it would be irrelevant, and cited the recent decision of Penlington J. in Choy Yi-wong (M.P. No. 2595 of 1985; 20th December 1985) With respect, that proposition is selfevident and applies to all forms of hearings. But, when) as in this case, the essential issue was whether the principal prosecution witness was telling the truth, or seeking to cover up for himself or others by pointing the finger at the applicant, the credibility of that witness was of the greatest relevance to the issues before the adjudicator. In my view, denying the applicant a fair opportunity of cross-examining as to credit was a form of "procedural impropriety" sufficiently serious to justify the Court coming to the conclusion that there had been a substantial denial of natural justice, unless the actual material would have been clearly and manifestly inadequate to make any effective dent or impression on the credibility of the witness.

15. When there has been a blanket denial of cross-examination on an important issue, as distinct from merely refusing to allow a specific question or line of questions, it is very difficult to say that no substantial injustice has occurred. There will be instances where detailed comparison of the evidence of the witness and the material available to the cross-examining party would result in no adverse effect upon the credibility of the witness. But, experience shows that such instances are rare. Where the discrepancies between the evidence of a witness and his or her previous written statements can fairly be described as semantic or mere quibbles, or attributable to errors or nuances of translation or style, the tribunal of first instance, and more especially the reviewing tribunal, can normally give them little or no weight. But, what may seem to be slight discrepancies or matters of small weight, may assume quite unexpected and disproportionate significance when actually used in cross-examination. When confronted with any inconsistency or apparent contradiction, a witness may react in such a way that his or her demeanour gives rise to genuine uncertainty as to his or her reliability, or results in answers or explanations which expose further weaknesses or contradictions even if they fall short of confessions of perjury or other wrong-doing of the kind associated with some film or television court-room dramas. In my judgment, when the available ammunition has some power, albeit slight, it is extremely difficult to say that it would have made no difference to the actual result of the contest, when there has been absolutely no opportunity to use it.

16. I have not seen any previous statement by Inspector Lee Wing-kai, and I have seen only the first statement of Kwok Kong-wing, made on the 27th October 1981. The discrepancies between parts of that statement and his evidence are not startling. But, in my view, they were sufficient to enable an effective attack to be mounted on the credibility of Mr. Kwok and, perhaps, to lend some support to the suggestion of victimisation. According to the statement, the allegation involving the applicant emerged somewhat strangely in the course of an inquiry into the conduct of other officers which had taker place in October 1981. Whether his reference to the applicant was the result of a leading question by the investigator, his own invention in order to distract his investigator from inquiring further into the conduct of himself and officers named in his statement, or a truthful recollection of an incident which occurred in April, might have been revealed if he had been cross-examined on this statement. He might have been asked why, in 1981, he knew that the goods on the Shipment Release Form, allegedly presented to him by the applicant, were "valuable goods", whereas when shown Exhibits PE1 and PE2 he was not certain whether they related to valuable cargoes. In fact the two exhibits related to different cargoes, whereas in his statement he mentioned that he placed a chop on two sheets relating to one consignment. One can, perhaps, understand his inability to remember which of the two exhibits were "chopped" by him, but his assertion that it was one of these two forms is very difficult to believe, without some further explanation. It may be the case that Mr. Kwok would have given satisfactory explanations for these apparent inconsistencies. I do not know, because the adjudicator completely stifled this legitimate method of testing the credibility of a witness, especially one who, for all practical purposes was an accomplice - a feature which the adjudicator did not adequately take into account when concluding that Mr. Kwok had given him a truthful account.

17. In the present case, having regard to the evidence actually before the adjudicator, it cannot be said that his decision was "irrational" in the sense that it was so outrageous that no sensible person who had applied his mind to the question to be decided could have arrived at it. But, I am, regrettably, driven to the conclusion that as a result of his rulings, which may be due to a misunderstanding of the law regulating his powers, the adjudicator effectively excluded from his consideration evidence or other material relevant to his proper assessment of the credibility of Mr. Kwok and the applicant. In his Statement of Findings he stated that the applicant "remained firm while being cross-examined by the Prosecutor. " In his later affirmation he described the applicants demeanour as "not consistent with veracity. " The apparent change of mind is not explained. But, one is left with the clear impression that it was due to the applicant's failure to substantiate his suggestion of victimisation, described as "a slur against [Mr. Kwok's] credibility. " In my view, the adjudicator not only prevented that witness' credibility being legitimately questioned by stopping his cross-examination. By so doing, and precluding any cross-examination of Inspector Lee, he may very well have shut out evidence which might have tended to support the suggestion of victimisation.

18. I fully appreciate that the adjudicator reached his decision because he did not believe the applicant's denial of being at the terminal on the relevant date. But, in view of these serious procedural improprieties the finding of guilt must, in my view, be quashed. Miss Hartstein did not submit that, if I came to that conclusion, I should remit the matter for a fresh hearing. Having regard to the history of this case, I would not have considered it just to make such an order. Accordingly, this application is granted and there will be an order of certiorari quashing the decision of the adjudicator and the punishment of dismissal imposed or authorised by the Commissioner.

19. In case this matter should go further and in deference to Counsels arguments, I will briefly indicate my conclusions on grounds 4(a) and (b), as set out in the applicant's Amended Statement. These relate to the Commissioner's decision to dismiss the applicant. The statutory machinery provides for charges of disciplinary offences to be heard and determined by the Commissioner or another senior officer appointed by him. It is common ground that only the Commissioner or the Governor can impose punishment of dismissal upon a revenue officer i.e. a customs officer below the rank of inspector. Only the Governor can impose the punishment of dismissal on an Inspector or Senior Inspector. (cf Section 7 of Cap. 342 and Rules 2, 15 and 16). Where the charge is heard and determined by a senior officer he can impose a punishment within his powers or refer the case to the Commissioner, who may then impose a punishment within his powers. (cf Rules 10 and 12(b) as modified by Rule 14.)

20. In the present case, Mr. Lee did not refer the case to the Commissioner, but imposed punishments which were clearly within his powers, viz., deferment of increment and a severe reprimand. Rule 19 gives the Commissioner power to review any finding or punishment within 14 days. Rule 19(2) provides, inter alia, that upon a review the Commissioner may, subject to rule 26, exercise any of the powers in Rule 22(c) which reads: -

"Upon an appeal, the Governor or the Commissioner, as the case may be, may -

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Mr. Van Burren submitted that since a punishment of dismissal could not be imposed by Mr. Lee in the first instance, i.e., at the hearing before him, the Commissioner could not exercise his power of dismissal when reviewing that punishment. Miss Hartstein sought to support the Commissioner's decision by contending that upon a review he can exercise the powers he would have had if he had heard and determined the charge in the first instance. Otherwise, so her submission continued, no sense would made of the legislation, and much inconvenience would be caused since it was virtually impossible for the Commissioner to personally hear all cases which might merit dismissal.

21. In my judgment, the proper construction of the words "in the first instance" is that contended for by Mr. Van Burren. It is a phrase commonly used to refer to the tribunal or person presiding over the original hearing as distinct from some appellate body. The words were, in my view, inserted in Rule 22 to restrict the otherwise wide powers of the Commissioner and the Governor, and to preserve clear features of the machinery created by the legislature, namely, that the Commissioner cannot dismiss inspectors, and that his delegates cannot dismiss any subordinate officer. Not even a Deputy Commissioner has the power to dismiss a subordinate officer for a disciplinary offence. With respect, Miss Hartstein's argument would enable the Commissioner to disregard or circumvent these clear limitations imposed by the legislature simply by exercising his power of review. I do not think that I should adopt a construction which, in effect, would attribute to the legislature inconsistency of intention, when the alternative construction gives effect to intentions which are abundantly clear.

22. Furthermore, I do not think that there is any substance in the argument based on supposed administrative inconvenience. I cannot believe that, within a disciplined service, there will be so many serious offences, obviously deserving of a punishment of dismissal, that the time of the Commissioner will be spent on nothing else than disciplinary hearings. If such a situation were to arise, the proper course would be to amend the legislation. Nor is there any substance in the argument that the appropriate punishment can only be determined after the hearing and finding of guilt is reached. The officer who selects the mode or place of the original hearing will no doubt have regard to the appropriate punishment available in the event of a finding of guilt. Members of the Attorney General's Chambers do this every day when deciding whether to prosecute says a case of theft in the Magistracy, the District Court or the High Court. I am confident that the Commissioner is perfectly able to make the same preliminary decision on venue without being criticised for having prejudged the case. If at the hearing conducted by his appointed delegate the facts point to a punishment beyond the delegate's powers, he can surely be relied upon to exercise his discretion to refer the case to the Commissioner under Rule 10(b)(ii). When conferring that discretion to refer, the legislature must be taken to have also conferred upon the delegate a discretion not to refer the case to the Commissioner. I am not persuaded that the legislature intended that discretion to be completely swept aside when it conferred the powers of review on the Commissioner.

23. For these various reasons, I consider that, in the circumstances of this case, the Commissioner's decision to impose a punishment of dismissal was beyond his legal powers, and should be quashed on the ground of "illegality" even if the finding of guilt, contrary to my view, is not reviewable for "procedural impropriety. "

24. As the final ground of the Amended Statement was added as a result of remarks from the bench, and out of deference to counsel's arguments, I ought to indicate my views on it. The Commissioner's decision to review the punishment imposed by Mr. Lee was communicated to the applicant by a letter signed by the Commissioner and dated the 15th October 1985, i.e. 13 days after the punishments were imposed. The second paragraph of that letter (Exh. NKW-3) was in the following terms :-

"You are hereby notified that I have reviewed these punishments in accordance with Rule 19(1) of the Customs and Excise Service (Discipline) Rules, and that it is My intention to have them substituted by punishment by dismissal. "

 

The applicant was then told of his right to make representations in writing, under Rule 26, and asked to do so by the 29th October 1985. The applicant did so by a letter dated the 28th October 1985.

25. Rule 19 appears to require any review by the Commissioner to be completed within 14 days of the finding or imposition of the punishment, and for this to be done after the subordinate officer has been given "a reasonable opportunity to be heard or to make representations in writing," in accordance with Rule 26. The use of the past tense and reference to the Commissioner's intention were capable of being interpreted as indications that the Commissioner had already made up his mind to dismiss the applicant before hearing what he might have to say. Indeed, the fact that he was only invited to make representations in writing, and not asked whether he wished to be heard, might be regarded as further indications that a decision had already been made.

26. In the light of the history of this particular case, I consider that the Commissioner's letter should have been expressed in somewhat more cautious language. In order to comply with Rule 26, and the principles of natural justice, I would respectfully suggest that the subordinate officer only needs to be told that substitution of another punishment is under consideration or contemplation, the punishments which can legally be substituted on an appeal or review, and asked whether he wishes to be heard or to make written representations. Any impression that a final decision had already been made, which might be derived from the language of Exhibit NKW-3, was, in my view, unlikely to be erased by the letter sent to the applicant in December 1985 (Exh. NKW-5). This was not signed by the Commissioner, but by some person in the Department who was directed to inform the applicant that the Commissioner had authorised his dismissal under Rule 16. That was not a strictly accurate description of the process leading up to the dismissal, because the Commissioner purported to justify his decision under Rule 19(2) and 22(c).

27. Nevertheless, I think that Miss Hartstein's submissions on this aspect are correct. These letters should not be construed as if they were legislative enactments or statutory forms. (of In Re Golden Wall Shirts Factory Ltd. v. The Director of Trade, Industry and Customs [1981] HKLR 144) Furthermore, the duty imposed by Rule 26 can only be fairly discharged if the subordinate officer is given a clear indication of the type of punishment which the Commissioner has provisionally selected as a substitute. Having given the matter fuller consideration, I do not think that there is any substance or merit in ground 4(b).

28. For the aforesaid reasons, there will be orders of Certiorari to quash the findings of guilt and punishment imposed by Mr. Lee on the 2nd October 1985 and the Commissioner's decision to dismiss the applicant with effect from the 16th December 1985. In accordance with Order 42 of the Rules of the Supreme Court, there will be an order nisi that the Respondent pay to the applicant his costs of these proceedings, to be taxed if not agreed.