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HCAL000025/1998
1998, No. AL 25
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CHAN TAK SHING Applicant
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IN the Matter of an Application by Chan Tak Shing for judicial review. |
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IN the Matter of the Public Service (Administration) Order 1997 |
Coram: The Hon Mr Justice Findlay, in Court
Date of hearing: 10 September 1998
Date of handing down of judgment: 15 September 1998
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JUDGMENT
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The Decision
This is an application to judicially review a decision of the Chief Executive of the Hong Kong Special Administrative Region communicated to the applicant, a serving police inspector, by a letter from the Secretary for the Civil Service dated 5 February 1998 that the applicant be retired in the public interest under section 12 of the Public Service (Administration) Order 1997 (the Order).
The Order
1. The Order deals with the appointment, dismissal, suspension and discipline of public officers. The relevant parts of the Order say this -
9. Misconduct not warranting dismissal or compulsory retirement
(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 investigation 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 investigation 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. Misconduct warranting dismissal or compulsory retirement
(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 investigation 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 investigation 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 seem to him to be just.
(3) Where an officer is absent from duty without leave for a period exceeding 21 days and it is represented to the Chief Executive that the officer
(a) cannot be traced; or
(b) on being required by notice in writing (sent by post to his last known address) to give, within the period specified in the notice, an excuse for his absence, has failed to give any excuse or to give an excuse that is reasonable,
the Chief Executive need not cause an investigation to be made under subsection (1) and may summarily dismiss the officer.
11. Action further to criminal charge
If an officer has been convicted on a criminal charge the Chief Executive may, upon a consideration of the proceedings of the court on such charge, inflict such punishment upon the officer as may seem to him to be just. without any further proceedings.
12. Retirement in the public interest
(1) The Chief Executive may, at any time if it is represented to him that the retirement of an officer is desirable in the public interest, call for a report from the head of any department in which the officer has served. The officer shall be informed of the grounds on which his retirement is contemplated under this section and be given an opportunity to make representations.
(2) The Chief Executive may, upon a consideration of the report and of representations submitted under subsection (1), require the officer to retire from the service, if he is of the opinion that, having regard to conditions of the public service, the usefulness of the officer thereto and all other circumstances of the case, the termination of the officer's service is desirable in the public interest and the officer's service shall accordingly terminate on such date as the Chief Executive may specify.
(3) If upon consideration of-
(a) an investigation into the conduct of an officer under section 9 or 10; or
(b) the proceedings of a court by which an officer has been convicted of a criminal charge,
the Chief Executive is of the opinion that the officer does not deserve to be punished but that the investigation or proceedings disclose grounds for requiring him to retire in the public interest, the Chief Executive may require the officer to retire from the service under this section, and in such a case it shall not be necessary for the Chief Executive to comply with the procedure mentioned in subsections (1) and (2).
(4) Where an officer is required to retire under this section, he may be granted a pension, gratuity or other allowance in accordance with any pensions law for the time being in force.
19. Delegations of power
(1) Subject to subsection (2), the Chief Executive may delegate to any public servant or any other public officer any powers or duties conferred or imposed on him by sections 3 and 9 to 18.
(2) The Chief Executive shall not delegate the power to make regulations under section 21(2).
(3) All delegations to a public servant or other public officer of powers or duties (similar to those referred to in subsection (1)) vested in or exercisable by the Governor which were in force immediately before 1 July 1997 shall on and after that date continue in force and be deemed to have been made by the Chief Executive to the corresponding public servant or public officer, as the case may be, in the HKSAR.
The Procedure
In chronological order, the procedure that was followed leading to the challenged decision was as follows -
| Date |
Event |
| 23 April 1996 |
Letter by the Commissioner of Police to the Secretary for the Civil Service making representations that the applicant should be retired under Colonial Regulation 59 (the equivalent of section 12 of the Order). |
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| 21 May 1997 |
"Recommendation for action" by the Commissioner of Police that the applicant "should be required to retire in the public interest under Colonial Regulation 59 on the grounds that the Commissioner of Police has lost confidence in his integrity as a police officer". |
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| 15 August 1997 |
Letter on behalf of the Secretary for the Civil Service, enclosing a copy of the Order, advising the applicant that consideration was being given to retiring him "in the public interest under section 12 of the Public Service (Administration) Order on the grounds that the Commissioner of Police has lost confidence in your integrity as a police officer". The letter gives reasons for this loss of confidence, summarised at the end of the letter by saying that "the Commissioner of Police is satisfied of your complicity" in a robbery described earlier. The applicant is invited to make representations through the Commissioner.
The evidence is that, although signed on behalf of the Secretary, the letter was drafted by the Commissioner.
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| 8 September 1997 |
Letter by the applicant making representations. These representations deny any complicity in the robbery and give facts relating to the applicant's service. |
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| 15 January 1998 |
A minute by the Deputy Secretary for the Civil Service to the Chief Executive, through the Chief Secretary and the Secretary for the Civil service. This minute seeks the approval of the Chief Executive for the applicant to be retired under section 12 of the Order. It briefs the Chief Executive on the background, concentrating on the evidence of the applicant's involvement in the robbery, saying that the Commissioner is satisfied that the evidence "implicates [the applicant] in the commission of the robbery; of having contacts with persons who were implicated in the commission of the robbery; of lying and being evasive about critical matters when questioned about the robbery.". The minute says that the Civil Service Bureau supports the Commissioner's view, and give reasons for this.
Annexed to the minute were -
A copy of the Order.
A document giving details of the robbery.
A copy of the letter of 15 August 1997.
A copy of the applicant's letter of 8 September 1997.
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An undated and unattributed document headed "Comments on Written Representations by Inspector CHAN Tak-shing". This seeks to refute what the applicant said in his representations. |
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| 5 February 1998 |
Letter informing the applicant of the decision to retire him. |
Illegality
The first point argued by Mr Dykes is that the Chief Executive committed an error of law in that he should not have proceeded under section 12 of the Order. The complaint was one of misconduct, so, Mr Dykes argues, it was more appropriate to use the procedure provided by sections 9 or 10 of the Order. This is especially so, it is said, because, under sections 9 or 10, the applicant would have had a better opportunity of presenting his case, with better procedural safeguards.
Under sections 9 and 10 of the Order, the Chief Executive has form the opinion that an officer has been guilty of misconduct before any punishment may be inflicted. Under section 12, the Chief Executive has to be of the opinion that the termination of the officer's service is desirable in the public interest.
It is perfectly clear on the papers before me why the decision was made to proceed under section 12 rather than sections 9 or 10. The simple fact of the matter is that there was insufficient evidence to establish that the applicant was guilty of participating in the robbery to the degree required. Nevertheless, there was sufficient evidence for the Commissioner to come to the belief that the applicant had so participated, and, therefore, that he could no longer trust the applicant. The basis on which the action under section 12 was taken was this lack of confidence in the applicant, and the basis for this lack of confidence was the evidence of the applicant's conduct. It cannot be said, in my view, that the Commissioner's attitude, and the Chief Executive's decision in support of that attitude, was in any way irrational. Indeed, Mr Dykes did not seek to argue that this was so. In my judgment, it would have been irrational for the Commissioner to contemplate, and the Chief Executive to allow, the applicant to continue as a serving police inspector in the light of the information before them.
In these circumstances, it seems to me, it was entirely appropriate to proceed under section 12. Indeed, it would have been inappropriate to proceed under sections 9 or 10 because it would have doubtful if the Chief Executive could have formed the honest opinion that the applicant had been guilty of misconduct so that punishment was merited.
Procedural Unfairness
This complaint, as I understand it, rests on the basis that the applicant did not have the opportunity to comment on all the documents placed before the Chief Executive. In particular, the minute of 15 January 1998 and the "Comments on Written Representations by Inspector CHAN Tak-shing" were not disclosed to the applicant.
Section 12 of the Order requires that "The officer shall be informed of the grounds on which his retirement is contemplated under this section and be given an opportunity to make representations.". The applicant was so informed and given that opportunity. The minute of 15 January 1998 and the "Comments" did not contain any new or additional grounds not made known to the applicant. The applicant was fully aware of the grounds and had every opportunity of commenting on them. It must be kept in mind that the ground was the Commissioner's absence of confidence in the applicant based on the suspicions he had formed arising from the applicant's conduct. Of that the applicant was fully informed and the applicant commented extensively on that ground.
Mr Dykes argues that the Chief Executive should not have had before him any documents other than those contemplated by section 12. He says that subsection (2) contemplates that the Chief Executive should considered only "the report and . . . any representations submitted under subsection (1)". That seems to be right, but the "representations submitted under subsection (1)" include representations, not only from the applicant, but also those submitted to him "that the retirement of an officer is desirable in the public interest". In my view, nothing placed before the Chief Executive fell outside the parameters of the documents he was required to consider.
Procedural Impropriety
The next point raised by Mr Dykes is that the proper procedure provided under section 12 was not followed. The proper procedure, he says, involved the following steps -
(a) a representation to the Chief Executive that the retirement of an officer is desirable in the public interest;
(b) a call by the Chief Executive for a report from the head of any department in which the officer has served;
(c) the provision of that report;
(d) the extraction of the grounds on which the retirement is contemplated from the report;
(e) the communication of those grounds to the officer;
(f) the consideration of the report and any representations by the Chief Executive; and
(g) the decision.
2. Mr Dykes says that the Chief Executive did not call for any report, or, if there was a report, it was not placed before, or considered by, the Chief Executive.
I do not think that it is necessary for the Chief Executive to call for a report before he is able to exercise his jurisdiction under section 12. It may be, of course, that the Chief Executive may wish to have a report if he considers that the representation does not contain sufficient information. Or, it may be that the representation is from one department, and the Chief Executive wishes to have a report from another department in which the officer has served. But it would be sheer nonsense to read the section as requiring the Chief Executive to call for a report when he does not see the need for one. As in this case, the officer may have served in only one department. The representation contains all the information the Chief Executive needs. Is it to be said that, in these circumstances, the section requires him to call for a report from the same department? Is he to say to the department - "I have all the information I need in your representation, but please give me a report containing the same information."? That does not make any sense. And it may be that there is no department in which the officer has served. The Order draws a distinction between a "government bureau" and a "department". What if the officer is a member of the secretariat, and has never served in a department? Does that mean that section 12 does not apply to him? I think not. The purpose of the report is to inform the Chief Executive if he so requires this. If he does not require a report, there is not need for him to go through the pointless exercise of calling for one.
The section does not say that the grounds to be conveyed to the officer must be extracted from the report. In fact, the wording of the section leads more naturally to the conclusion that the grounds would come from the initial representation that the retirement is desirable in the public interest.
The Result
In the result, I find that there is no sound basis for any of the complaints raised by the applicant, and his application is dismissed.
The Costs
The question of costs has not be argued, but I see no obvious reason why they should not follow the event. I make an order nisi that the applicant pay the respondent's costs.
JK FINDLAY
Judge of the High Court
Court of First Instance
Representation:
Mr Philip Dykes, SC, instructed by Messrs Jesse HY Kwok & Co, for the applicant.
Mr Nicholas Cooney, instructed by the Secretary for Justice, for the respondent.
Remarks:
On appeal by the Applicant to the Court of Appeal: appeal allowed with costs - Please refer to appeal judgment CACV000270/1998.
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