PETER PO FUN CHAN v. PETER WONG HONG YUEN

1988, No. MP 2269

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. In the Legislative Council Elections held on 22nd September 1988, the Respondent was declared duly elected for the Finance and Accountancy Functional Constituency. The Petitioner was an unsuccessful candidate in that Constituency. Following the election, the Petitioner discovered the Respondent to be an Adjudicator of both the Immigration Tribunal and the Registration of Persons Tribunal. He, therefore, presented this petition in which he seeks a determination that the Respondent was not duly elected and that his candidacy, election and holding of office are each void.

2. The Petitioner relies on s. 21(1)(b) of the Legislative Council (Electoral Provisions) Ordinance Cap. 381 (the Ordinance) which reads:

"A person shall be disqualified from being nominated as a candidate in an election or holding office as an elected Member if ... he holds any public office or any office of emolument in the gift or disposal of a public body of any committee thereof or having held such office has been dismissed therefrom;"

3. S. 53F of the Immigration Ordinance Cap. 115 reads:

"53F. (1) There is hereby established a tribunal to be known as the Immigration Tribunal

(2) For the purpose of exercising the jurisdiction of the Tribunal, the Governor shall appoint a chief adjudicator, deputy chief adjudicator and such number of other adjudicators as from time to time may be necessary.

(3) The remuneration, if any, of the chief adjudicator, deputy chief adjudicator and other adjudicators shall be determined by the Governor."

4. S. 3C of the Registration of Persons Ordinance Cap. 177, which established the Registration of Persons Tribunal, is in identical terms mutatis mutandis.

5. The Respondent was appointed Adjudicator by the Governor to each Tribunal on 1st July 1987. He remains an Adjudicator today. The Petitioner asserts that an Adjudicator holds a public office or at least an office of emolument in the gift or disposal of a public body.

6. The meaning of "public office" in the context of Electoral Legislation has been canvassed in the High Court at least twice before. In 1988 M.P. No. 1662 (David Yeung's case) Liu J. held that a Temporary Magistrate holds a public office. In 1988 M.P. No. 2226 a bench of three judges dismissed a petition based inter alia upon an assertion that an Adjudicator of the Immigration Tribunal is a public officer.

7. For the Petitioner, Mr. Griffiths argued that I should not follow the latter case for four reasons. First, that case is only persuasive and not binding. Second, the real ratio was a time bar under the Electoral Provisions Ordinance Cap. 367 and in any event the case turned principally upon the position of lay assessor in the Magistrate's Courts. Third, the interpretation of public off ice in relation to Adjudicator was in the context of the Electoral Provisions Ordinance. Fourth the findings in respect of an Adjudicator were obiter and in any event wrong in fact and law.

8. Mr. Griffiths started his approach with the definitions of "public office" and "public officer" contained in s. 3 of the Interpretation and General Clauses Ordinance Cap. 1. These read:

"'public office' means any office or employment the holding or discharging of which by a person would constitute that person a public officer;

'public officer' and 'public servant' mean any person holding an office of emolument under the Crown in right of the Government of Hong Kong, whether such office be permanent or temporary;"

9. It will be seen that "public officer" and "public servant" are used synonymously

10. Rolling the two definitions together, Mr. Griffiths submitted that "public office" means:

"Any office or employment the holding or discharging of which by a person would constitute that person a person holding an office of emolument under the Crown in right of the Government of Hong Kong, whether such office be permanent or temporary."

11. Thus, it is apparent that the common element of the first two limbs of disqualification in s. 21 (1) (b), that is to say, "public office" or "off ice of emolument", is "emolument". Therefore, said Mr. Griffiths, the intention is to disqualify not all public officers but only those drawing emoluments.

12. At present, a Deputy Chief Adjudicator and Adjudicator of the Immigration Tribunal receive $250 for each attendance of 4 hours or less in a day, and $450 for each attendance exceeding 4 hours in a day. The Chief Adjudicator of the Tribunal receives $350 and $650 for the same periods. These payments, in the evidence placed before me, are described as honoraria although, of course, in the Ordinance they are referred to as remuneration.

13. It was a matter of dispute as to whether these payments are emoluments. I am satisfied that they are properly so described. In my view, any payment other than a payment wholly by way of reimbursement, for example, for travelling expenses, is an emolument. To hold otherwise would contemplate the need to draw an artificial line in respect of each office in order to ascertain whether payments made to the officer are emoluments or otherwise. I say artificial because not only does the rate of payment in each case vary considerably but the quantum received by holders of office varies very substantially. Thus, a previous Chief Adjudicator over a period of about 7 years received approximately $90,000 per annum, a sum which can only be an emolument. Adjudicators, on the other hand, sit on average for between 3 and 4 half day sessions per annum. Their annual payments could therefore be in the region of $1,000, a sum which might arguably be called an "honorarium". Yet, all these payment stem from a common source. It would be wrong in my view for the determination of whether such payments are emoluments to depend upon their quantum.

14. In order to ascertain whether an Adjudicator holds an office which in the circumstances is necessarily public, Mr. Griffiths contended that it is necessary to refer to the Letters Patent which constitute a written constitution for Hong Kong and which are paramount over local legislation where constitutional matters are concerned. Thus, the Legislative Council could legislate to establish District Boards and provide for elections thereto under its power to make laws for the peace, order and good government of Hong Kong. It could not, however, without prior and proper amendment to the Letters Paten, make provision for a partially elected Legislative Council because that would be the exercise of unauthorised constituent power. There is no issue on this.

15. Articles VI and VII of the Letters Patent were amended in 1985 and, pursuant thereto, the Ordinance was enacted in the same years. Paragraph 2 of Article VII gave the Legislative Council power inter alia to provide for the qualifications and disqualifications of candidates

16. Mr. Griffiths said that any definitions expressed or implied in constituent parts of the Letters Patent are paramount over definitions contained in local legislation. Further, where possible, the Courts should seek to give the same construction to similar terms used in the Letters Patent and local constituent legislation. Thus, the terms "public office", "public officer" and "office" which are used in both the Letters Patent and the Ordinance should be given the same meaning, particularly because power was delegated to the Legislative Council to deal with qualifications and disqualifications.

17. Mr. Griffiths contended that the Judges in Desmond Lee's case did not have this argument in mind and were consequently wrong in law to find that an Adjudicator is not a public officer.

18. Mr. Griffiths pursued his argument on three broad lines. First, he Pointed out that the three phrases to which I have just referred are used extensively in the Letters Patent, but particularly in Article XIV which reads:

"The Governor may constitute and appoint such Judges, Justices of the Peace and other public officers as may be lawfully appointed, all of whom shall, unless otherwise provided by law, hold their offices during Our pressure."

19. Thus, at least by virtue of the Letters Patent, Judges and necessarily Magistrates are public officers. The qualities which are an incident of a Judge, for example, independence, are qualities which a public officer has. Therefore, it is impermissible to say, as in Desmond Lee's case, that a person who is independent and cannot be controlled in the discharge of the duties of his office cannot be a public officer.

20. Further, it is argued that public officers all have offices in he sense here used. Therefore, it is permissible to consider the office of Justice of the peace, which no doubt had a more active role when the Letters Patent were given, in considering what is an office. Even today, two Justices of the Peace have, when sitting together, all the powers and jurisdiction conferred upon a special Magistrate by the Magistrates Ordinance Cap. 227. A special Magistrate has the same powers and jurisdiction as a permanent Magistrate save that his powers of sentence are considerably circumscribed.

21. In the circumstances, said Mr. Griffiths, it was not surprising that Liu J. in the David Yeung case found a Temporary Magistrate ( who is a permanent Magistrate appointed for a specific and relatively short period of time) to be a public officer. In reaching his decision, Liu J. made specific reference to Article XIV.

22. Part IX of the Immigration Ordinance, which contains s. 53F, and Regulations made thereunder, provide a scheme for the Immigration Tribunal and Adjudicators thereof. The members of the Tribunal are appointed by the Governor; they may determine facts and law albeit within a narrow field; they can call witnesses and conduct hearings and their decisions are final except in so far as any decision is amenable to judicial review by this Court. Pursuant to s. 42 of Cap. 1, they may be removed, suspended or dismissed by the Governor. Accordingly, it is argued, the position of Adjudicator is wholly analogous with that of Temporary Magistrate and an Adjudicator is therefore clearly a public officer within the meaning of the Letters Patent.

23. Secondly, Mr. Griffiths dealt in some detail with Edwards (Inspector of taxes) v. Clinch [1982] AC 845 in which the House of Lords comprehensively debated what constitutes an office. The case was much canvassed in Desmond Lee's case.

24. I do not propose to go into this case in any detail. It was a tax case. All their Lordships struggled with the meaning. In my view, only three certain principles can be extracted from the case. First, that the word "office" has a variety of meanings. Second that an office must have a continuance or permanence, that is to say, the death, retirement or removal of an incumbent does not bring the office to an end. The office remains to be filled, left vacant or abolished as the person holding power over it sees fit. Third, that the intermittent or spasmodic discharge of the duties and functions of the office by the incumbent does not make it any the less an office. Thus, a returning officer who performs functions briefly every four or five years is nonetheless an officer. Equally, a non-executive director who can pick and choose when to attend a board meeting remains an officer.

25. An Adjudicator can choose to sit as and when he prefers and as infrequently as he prefers. I have already indicated that Adjudicators generally sit very infrequently. The post or office is of course established by the Immigration Ordinance. If the Respondent were to resign or be removed, the post would remain to be filled as the Governor might see fit.

26. I accept, therefore, that prima facie an Adjudicator can be an officer and, as he is performing public duties, a public officer. It is, however, necessary to bear in mind the following quotation by Liu J. in Desmond Lee's case at p. 7:

"For the term 'public officer', one should be wary of Lord Goddard's warning sounded in Beeston & Stapleford U.D.C. v. Smith [1949] 1 K.B. 656 at p. 663:

'To the words 'public officer' different meanings can be given according to the statute in which they occur.'"

27. To reinforce these points, Mr. Griffiths said that the Letters Patent date back over one hundred years. They stem like the constitutions and electoral laws of most Commonwealth countries, Dominions and other territories, from England where the constitution has developed over several centuries. Therefore, in attempting to ascertain the meaning of any word or phrase and the intention of the legislature, the Court should look at the historical background in England and not simply the background in Hong Kong in 1985 when the ordinance was enacted. For this purpose it is proper to consider and adopt the approach of Courts in those other countries.

28. In in Re Webster [1975 49 A.L.J.R.] 205, Barwick C.J. had to consider s. 44 of the Constitution of Australia, which reads:

"Any person who - ........

(iv) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or

(v) Has, any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives..."

29. At p. 208, Barwick C.J. said:

"It is fundamental to the decision the questions posed by the Senate to bear in mind the purposes which s. 44(v) of the Constitution is designed to achieve. The paragraph derives ultimately from the provisions of the statute 7 & 8 Wm. III c. 25 passed in the year 1696 to secure the freedom and independence of the Parliament from the Crown and its influence. The precise progenitor of s. 44(v) is s. 1 of 22 Geo. III c. 45 passed in the year 1782. The substance of those provisions, repeated in 41 Geo. III c. 52, passed in the year 1801, persisted until 1957 when they finally disappeared from British Parliamentary life. During times when parliament was establishing its independence of the Crown it was thought that there was a real likelihood of a government contractor, that is to say, one who had a binding term contract with the Crown to supply government stores, and from whom the Crown was bound to take its requirements, being influenced by the Crown in matters not limited to the subject matter of the contract. Lord Haldane when Lord Chancellor in said In re Sir Stuart Samuel, [1913] A.C. 514, at p. 524 with respect to the statute 22 Geo. III c. 45, 'This Act of Parliament itself declares that it was made to preserve the freedom and independence of Parliament; and the mischief guarded against is the sapping of that freedom and independence by members being admitted to profitable contracts'."

30. That is a considerable history lesson starting as it does with the Act of Settlement and ending with the House of Commons Disqualification Act.

31. In Ali Amberan v. Tunku Abdullah [1970] 2 M.L.J. 15, Raja Azlan Shah J. said at p. 17:

"English parliamentary election law has been the source from which our election law is modelled and therefore it will not be incorrect for this court to receive from it the inspiration and guidance in interpreting our law, in particular the rules and tests laid down in English cases with regard to 'agency'."

32. In Deorao v. Keshav A.I.R. [1958] Bombay 314, Chainani J. said at para. 2:

"(2) Paragraph (1) of Article 191 of the Constitution states that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State,

(a) if he holds any office of profit under the Government of India or the Government of any state specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder.

The object of this provision is to secure independence for the members of the Legislature and to ensure that the Legislature does not contain persons, who have received favours or benefits from the executive and who, consequently, being under an obligation to the executive, might be amenable to its influence. Putting it differently, the provision appears to have been made in order to eliminate or reduce the risk of conflict between duty and self-interest amongst the members of the Legislature. This object must always be borne in mind in interpreting Art. 191.

(3) Mr. Chari has suggested that this provision should be construed strictly, as a disqualification affects the right of franchise, which includes the right to stand for an election and be voted for. The provision has been inserted in the Constitution with a deliberate purpose and in cases of doubt or where two interpretations are possible we are of the opinion that that interpretation should be preferred, which will further and effectually carry out the object of the makers of the Constitution."

33. In England, at least, the Act of Settlement and its successors led to many hundreds of disqualifications. The vigours of the legislation were ameliorated by the House of Commons Disqualification Act 1957 and its successor in 1975. S. 1 reads:

"1 Disqualification of holders of certain offices and places

(1) subject to the provisions of this Act, a person is disqualified for membership of the House of Commons who for the time being -

(a) holds any of the judicial offices specified in Part I of Schedule 1 to this Act;

(b) is employed in the civil service of the Crown, whether in an established capacity or not, and whether for the whole or part of his time;

(c) is a member of any of the regular armed forces of the Crown or the Ulster Defence Regiment;

(d) is a member of any police force maintained by a police authority;

(e) is a member of the legislature of any country or territory outside the Commonwealth; or

(f) holds any office described in Part II or Part III of Schedule 1."

34. Included in Part III of the Schedule is "Adjudicator appointed for the purposes of the Immigration Act 1971". By definition, therefore, such an Adjudicator holds "office".

35. Running through all these cases and enactments, it is argued, is the thread of payment or the entitlement to payment from the government or Executive, as a result of which the holder of an office might think it right to support the government on a matter on which he could have a different view in order to avoid possible financial loss. In any event, it is imperative that the public perception of such a danger existing should be avoided.

36. The strict construction of such provisions was emphasised in Bowman v. Hood [1899 the Queensland Law Journal 272] where Real J. said at P. 278:

"Looking at the facts found, it deems to me as a question of law, that those facts constitute the holding of an office of profit under the Crown. Although he received no fees- no remuneration in regard to his position on the Stock Board - he was entitled to be paid a fee for each attendance; and therefore, it is an office of profit. "

37. Thus, in England and other countries the concept of individual members of the legislature being financially independent of the executive is of prime importance. Mr. Griffiths urged that this applies equally in Hong Kong. He said that even if the effect of his construction is that some members of boards, councils committees, tribunals and other bodies are disqualified from holding public office, the Court should not let inconvenience or embarrassment to these members and to the Hong Kong Government prevent it from applying the law. I agree. If that is the law, I must grasp the nettle and Hong Kong must suffer the consequences.

38. I accept that as a matter of broad principle Mr. Griffiths is right when he says that I should look at the constitutional history of England and the approach of courts in other countries when construing constitutional enactments having English roots. Hong Kong may, in part at least, be an island but it should not be inward looking at a time when courts worldwide are more and more citing judgments of foreign Courts.

39. What the cases cited, however, do not tell me and what Mr. Griffiths did not vouchsafe were the local backgrounds against which the provisions to be interpreted were enacted. I dare to suggest, however, that the backgrounds were very different from that obtaining in Hong Kong where the first tentative steps were being taken to introduce an elected element into the Legislative Council in the approach to 1997.

40. Over Many years, the Hong Kong Government has established a network of boards and other bodies either by legislation or administratively. There are now some 400 such bodies involving over 4,000 members of the public on a voluntary basis, although in many instances some, albeit token, payment is made. This scheme encourages public participation in community and civic work and provides important feed back for the Government on its policies and actions.

41. The scheme did not, however, constitute any form of representative government. Accordingly, as a tentative step, in 1981 there were established the District Boards, pursuant to the District Boards Ordinance Cap. 366 and the Electoral Provisions Ordinance, with appointed and elected members. Those two enactments, not being constituent legislation, did not require amendment of the Letters Patent.

42. The first great stride down the representative road came in 1985, as I have already set out, with, the introduction of elected members into the Legislative Council on the basis of electoral college and functional constituencies. Many members of the public hope that further strides will be made leading to a fully elected Legislative Council by universal sufferage.

43. It was anticipated that members of the various bodies to which I have referred would having acquired a taste for and experience of public service, become candidates for the District Boards and the Legislative Council. More importantly, the electoral college constituencies comprise one each from the Urban and Regional Councils, and ten from the District Boards, which bodies provide both candidates and electors.

44. Against that background, in my judgment the Ordinance has a far greater affinity to the District Boards Ordinance, the Electoral Provisions Ordinance and the various enactments establishing bodies such as the Immigration Tribunal. And it is to these enactments that I should look in construing the term "public office".

45. Several of these Ordinances themselves distinguish between a public officer and the members of the various bodies. Thus, both the Urban Council Ordinance and the Regional Council Ordinance refer to public officers in contra-distinction to the Council, its committees and members. I accept, as Mr. Griffiths pointed out, that both Councils are incorporated bodies by virtue of their establishing enactments. Nonetheless, the distinction is clearly drawn.

46. District Boards, however, are not incorporated. The District Boards Ordinance again makes specific reference to public officers. S. 6(1)(c) reads:

"A Board shall consist of the following members ... such number as may be declared under s. 7, of persons, other than public officers, appointed by the Governor;"

S. 21 (1) (a) reads:

"For the purposes of carrying out its functions, a Board may, subject to this Ordinance ... appoint any public officer to act as the Secretary of the Board and determine his duties;"

47. By s. 43, the Buildings Ordinance Cap. 123 established a Tribunal for the purpose of determining appeals by persons prejudiced by a decision of the building authority. S. 43(3) provided:

"That nothing in this sub-section shall authorise the payment of remuneration to any person employed full time in any office of emolument under the Crown."

48. In s. 2(1) of the Town Planning Ordinance, Cap. 131, there is provision for the Governor to appoint members of a Town Planning Board "and any public officer as secretary thereof."

49. Finally, the Immigration Ordinance itself draws a clear distinction between a public officer and a member of the Immigration Tribunal S. 51 reads:

"51. (1) The Governor may give such directions as he thinks fit (either generally or in any particular case) with respect to the exercise or performance by any public officer, not being a judge, a district judge or a magistrate, of any powers, functions or duties under this Ordinance.

(2) Any public officer shall, in the exercise or performance of any powers, functions or duties under this Ordinance, comply with any directions given by the Governor under subsection (1)."

50. S. 53 reads in part:

"(1) Subject to subsection (8), any person aggrieved by a decision, act or omission of any public officer taken done or made in the exercise or performance of any powers, functions or duties under this Ordinance may by notice in writing lodged with the Chief Secretary within the time prescribed in subsection (2) object to that decision, act or omission.

(4) On consideration of an objection under subsection (1), the Governor or the Governor in Council, as the case may be, may confirm vary or reverse the decision, act or omission of the public officer or substitute therefor such other decision or make such other order as he thinks fit.

(5) The Governor in Council may at any time of his own motion vary or reverse any decision, act or omission of any public officer taken, done or made in the exercise or performance of any powers, functions or duties under this Ordinance or substitute therefor such other decision or make such other order as he thinks fit.

(8) No objection shall be made under this section -

(c) to the decision of an adjudicator; or

(d) to the decision of a public officer in respect of the right of abode in Hong Gong of any Person where the Registration of Persons Tribunal has previously determined that that person does not enjoy that right."

51. S. 53(D)(2) reads:

    "The decision of the Tribunal under this section or section 53C shall be final."

52. Manifestly an Adjudicator is not a public officer for the purposes of the Immigration Ordinance The function and duties of an Adjudicator are different and, if he is also a public officer, the whole of the scheme for appeals would be stultified.

53. In my judgment, the legislature did not intend by the use of "public office" in s. 21(1)(b) of the Ordinance, the disqualification of anyone appointed to discharge some public function or duty in a continuing office and for which he receives some measure, often taken, of remuneration. Rather the legislature intended and achieved the disqualification of a person employed in the Civil Service.

54. I am reinforced in this view by the third limb of s. 21(l)(b), "having held such office has been dismissed therefrom". I can pee the justification for the lifelong disqualification of an erstwhile permanent civil servant who has been dismissed by application of the Colonial or Civil Service Regulations. I can see no justification, however, for such disqualification in relation to an adjudicator or member of a similar body dismissed id a relatively summary manner under s. 42 of Cap. 1 from what is almost invariably a very part-time function.

55. I am satisfied and so hold that an Adjudicator of the Immigration Tribunal is not the holder of a public office or of any office of emolument in the gift or disposal of a public body or any committee thereof. An Adjudicator is, therefore, not disqualifed under s. 21 (1) (b). Similar considerations applied to the Registration of persons Tribunal. An Adjudicator of that Tribunal is similarly not disqualified.

56. Having arrived at the same conclusion, albeit by a different route, as my brethren in Desmond Lee's case, I do not need to consider the arguments advanced as to whether I am bound by their decision. Nor do I need to consider whether the findings of Liu and Mayo JJ. in relation to an Adjudicator are obiter.

57. The petition in the circumstances is dismissed.