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CACV000102A/1989
| IN THE COURT OF APPEAL |
1989, No. 102 |
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(Civil) |
BETWEEN
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MOHAMED YAQUB KHAN |
Plaintiff |
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(Appellant) |
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AND
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ATTORNEY GENERAL |
Defendant |
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(Respondent)
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__________
Coram: Fuad, V.-P., Penlington, J.A. & Mayo, J.
Date of Hearing: 13 December 1990
Judgment handed down: 27 December 1990
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JUDGMENT
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Mayo, J. (giving the judgment of the Court):
1. The Appellant is appealing against the judgment of Mr. Justice Mortimer dated the 10th May 1989.
2. After long protracted litigation, Mr. Justice Mortimer held that the Appellant had succeeded in proving his claim against the Respondent for wrongful dismissal.
3. The present appeal is limited to the quantum of damages which was awarded by Mr. Justice Mortimer.
4. The three orders being sought by the Appellant are that the judge's award should be set aside and that judgment be entered in his favour :-
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"(1) in such sum in respect of the Plaintiff's claim for loss or earnings as shall be calculated on the basis of the Appellant's pre-dismissal pay and emoluments as evidenced by his hours of work during the two years 1977 and 1978; and
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(2) that such sum as is calculated in respect of (1) hereinbefore shall take into consideration the Appellant's prospects of promotion up to the date of his retirement and shall reflect all such increments in pay and allowances as flow therefrom; and
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(3) that the Appellant be awarded damages by way of compensation for the distress, harassment and mental anguish that he has suffered in consequence of the Respondent's said illegal acts and dishonourable conduct towards the Appellant". |
5. At the conclusion of the hearing before Mr. Justice Mortimer, he indicated the basis upon which the Appellant's loss of earnings should be calculated. He then invited counsel for both parties to attempt to work out the figures which should be applicable. Both counsel did this and arrived at the sum of $269,872.36.
6. Miss Hartstein for the Respondent conceded - in our view quite correctly - that the agreement to work out the figures did not prevent the Appellant from appealing against the basis upon which the loss of earnings were calculated.
7. At the time of his wrongful dismissal, the Appellant was a Superintendent of Police in the Hong Kong Auxiliary Police Force. He submitted to us that his loss of earnings should be based upon his predismissal pay and emoluments for the 2 years immediately preceding his dismissal.
8. The Respondent objected to this approach. Miss Hartstein argued that it was clear from the evidence which was before Mr. Justice Mortimer that one of the complaints which was being made by the Respondent was that the Appellant was performing an excessive amount of duty. She directed our attention to various passages in the transcript of the proceedings which had a bearing on this contention. These included extracts from evidence given by the Appellant himself.
9. The picture which emerges from this is that the Appellant admitted that his attention had been drawn to the allegedly excessive hours of duty which had been undertaken by him.
10. It would seem that the Appellant was attempting to argue that none of the representations which were made to him on this subject amounted to a specific order for him to reduce his attendance on duty.
11. At the hearing before us the Appellant introduced Further Grounds of Appeal which sought to impugn the evidence which had been adduced by the Respondent in the trial concerning the guidelines adopted in the Auxiliary Police for attendance by Auxiliary Police Officers. The Appellant referred to an Administrative Circular dated the 9th April 1982 which provided in para 15(b):-
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"(b)
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No officer will perform more than 48 hours of duty in any calendar week ending on a Saturday except for Annual Camps, without the authority of CSO AUX." |
12. He contended that this direction was at variance with the evidence which had been before the trial judge which had indicated that the maximum number of hours which should be served by Senior Auxiliary Police Officers should be 60 hours per month.
13. During the course of the hearing before Mr. Justice Mortimer, reference had been made to minutes of a meeting of Senior Officers of the Auxiliary Police held on the 2nd May 1978. At this meeting there had been discussions concerning the amount of time which should be spent by such Senior Auxiliary Police Officers in training and in the performance of their duties.
14. The Appellant submitted to us that there were irregularities in these minutes as a comparison of different copies of the minutes indicated that amendments had been made to one copy which had not been embodied in another. On the material which was before us, we could see no reason to believe that there was any attempt by anyone to misrepresent the position or to suggest that there had been any impropriety.
15. Mr. Justice Mortimer dealt with the position concerning the way damages should be assessed as follows:-
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" After Mr. Khan was appointed Auxiliary Divisional Superintendent at Wong Tai Sin, he became abnormally keen about his duties. Although it was never the intention that an Auxiliary Gazetted officer would attend daily or full-time or anything approaching fulltime, Mr. Khan attended almost every day, after his appointment until his dismissal. His business, such as it was, was not going well. He had no other employment and he needed the money. This came to the notice of his superiors. He was spoken to and asked to reduce his hours, but he did not do so. He was never ordered to do this and he continued to be paid for the long hours he attended. A word from a superior would have been enough for most Gazetted Officers, but it was not for Mr. Khan who continued to do full-time. I have heard evidence about the background of those matters. I am satisfied that by the time of Mr. Khan's dismissal, the amount of his attendance was in issue. He refers to it in later correspondence, and I have been shown the minutes of a Senior Officer's meeting held on 2nd May 1978 in which there is what is conceded to be an administrative guideline. It says:
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"In view of the nature of work pertaining to officers of CIPA rank and above, the meeting decided that it was not necessary in normal circumstances for them to carry out more than 60 hours special duty per month. If in exceptional circumstances they were required to perform more than the prescribed limited, prior approval from CSP Auxiliary would have to be sought."
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In spite of the apparently directional nature of that minute, it did not amount to an order. I am however satisfied, as the matter had been raised before, that one way or another after May 1978, Mr. Khan's attendance hours would have been limited to accord with that administrative guide. He would not have been able to do more than 60 hours per month on a voluntary basis in the normal way. Of course, there may have been exceptions in either direction. In addition, he was required to do his statutory training duties which involved 14 field days, 96 hours of training per year and administrative hours amounting to 10 hours per month in addition to the 60 to which I have referred.
Mr. Khan seeks to claim loss of earnings on the basis that he was working full time. For the period after his dismissal this cannot be justified for the reasons I have set out. His loss of earnings therefore in the future for such period as is justified must be limited to 60 hours per month and his statutory training and duty and his administrative hours. I am satisfied, having regard to the history that he would have done such hours as he was permitted."
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16. It is evident from this passage that Mr. Justice Mortimer considered all out the material which was available to him and with respect, it would be difficult to fault his reasoning.
17. There is certainly nothing in the Administrative Circular which is in direct conflict with the evidence which was before Mr. Justice Mortimer.
18. In our view he was entirely justified in reaching a conclusion that the Appellant would not have been permitted to continue to work the long hours he had worked in the 2 years preceding his dismissal.
19. The next issue we will deal with is the complaint that the award which was made did not take into account the Appellant's prospects of receiving promotion after his dismissal. There would seem to us to be two answers to this complaint. The first is that there was no satisfactory evidence before Mr. Justice Mortimer that the Appellant had any such prospect. It was accordingly not open to him to take this factor into consideration. The second point on this is that we have been informed by Miss Harstein that since 1980 the remuneration which has been payable to Superintendents and Senior Superintendents in the Auxiliary Police has been the same. It would therefore appear that even if credible evidence had been forthcoming on the Appellant's promotion prospects, the amount of any additional award would have been minimal.
20. The final matter complained of by the Appellant was the failure of Air. Justice Mortimer to make any award in respect of his mental distress and humiliation.
21. It is evident from pages 13 & 14 of Mr. Justice Mortimer's judgment that he carefully considered all of the relevant cases on this subject. The facts of the cases referred to are readily distinguishable from the present case and we can see no justification for making an award under this head.
22. We would further add that no medical evidence was adduced at the trial in support of such a claim.
23. For the reasons we have given, this appeal must be dismissed. We would also make an order nisi that the Respondent will have his costs.
| (K.T. Fuad) |
(R.G. Penlington) |
(Simon Mayo)
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| Vice-President |
Justice of Appeal |
Judge of the High Court
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Representation:
Mr. Mohamed Yaqub Khan, Appellant, in person.
Miss V. Hartstein, S.C.C. & Miss Susana Sit (Attorney General's Chambers) for Respondent.
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