ATTORNEY GENERAL v. CHAN HOK YEE

IN THE COURT OF APPEAL

1994, No. 229
(Civil)

- Headnote -

Governor's power of summary dismissal under Reg. 57(3)(b) Colonial Regulations - Notice to explain absence without leave for period exceeding 21 days - Whether notice is valid if sent before expiration of 21 days.

Held:

(Court of Appeal) dismissal lawful even though notice sent after 7 days' absence. Observations on Court's discretion to grant declaratory relief in the circumstances of the case.

IN THE COURT OF APPEAL

1994, No. 229
(Civil)

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J U D G M E N T

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Litton, J.A.:

1. The appellant was, until his dismissal from the Civil Service, an Immigration Officer. By a decision of the Acting Secretary for the Civil Service made on 4 November 1993 the appellant was dismissed under Regulation 57(3)(b) of the Colonial Regulations. The Acting Secretary was, in this regard, performing his duties under delegated authority from the Governor.

2. Regulation 57(3) states:

"(3) Where an officer is absent from duty without leave for a period exceeding 21 days and it is reported to the Governor that -

(a) the officer cannot be traced; or

(b) on being required by notice in writing (sent to an address or addresses through which it may be reasonably expected to reach him) to give, within the period specified in the notice, an excuse for his absence, the officer has failed to give any excuse or to give an excuse that is acceptable,

the Governor may dispense with an investigation under paragraph (1) and summarily dismiss the officer."

3. Para (1) to which this regulation refers states:

"(1) If it is represented to the Governor that an officer has been guilty of misconduct, and the Governor is of 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 Governor and approved by the Secretary of State."

4. The appellant was granted leave by the High Court to challenge the Acting Secretary's decision by way of judicial review. There were many grounds stated in the original application lodged pursuant to Order 53 r3 of the Rules of the Supreme Court. The application was heard by Liu J. who by his judgment of 9 November 1994 dismissed the application. Hence this appeal.

Issue on appeal

5. The appellant seeks to impeach Liu J's judgment on one narrow point: the proper construction of Regulation 57(3). The point is not capable of much elaboration. The wording of Regulation 57(3)(b) seems simple enough. What do they mean?

6. The argument put on behalf of the appellant in the court below, and repeated by him acting in person in this court, is this: Under Regulation 57(3)(b), no valid written notice can be served on a civil servant unless he has been absent from duty without leave for 21 days; if no valid notice has been served it must follow that any summary dismissal under that regulation is unlawful.

Appellant's argument: "excuse for his absence"

7. The appellant's argument focusses upon the words "excuse for his absence" in paragraph (b). The appellant submits that, upon a proper construction of the Regulation, this must refer to the period exceeding 21 days mentioned at the beginning. The appellant says this: If the notice was received, say, only after 7 days' absence, what is there to explain? He reinforces his argument by stressing that summary dismissal under Regulation 57(3) is at the limits of the Governor's powers; for misconduct serious enough to warrant dismissal or compulsory retirement, the Governor already has disciplinary powers under Regulation 57(1) and (2) where, however, there must first be an inquiry; the officer is then afforded an opportunity of arguing his case.

What occurred in this case

8. To set the argument in its context, it is relevant to consider what actually happened in this case. In January 1993 the appellant applied for 22 months' no-pay study leave, to enable him to pursue a Master of Business Administration (MBA) course in Australia. This was rejected. Upon the appellant appealing to the Governor against that decision, his case was reviewed by the Secretary for the Civil Service who confirmed the original decision. In June 1993, when the appellant was already in Australia pursuing his MBA course, he applied again, this time for a shorter period: 12 and a half months. This too was rejected, by letter dated 29 June 1993.

9. During the period 15 February to 18 May 1993 the appellant, although absent from Hong Kong, was on special leave, using his accumulated vacation leave and other entitlements. But, as from 19 May 1993 he was plainly absent from duty without leave. 21 days from that date expired on 9 June.

Director sought explanation for absence

10. On 18 May 1993 the Director of Immigration sent by fax a letter to the appellant, at Emmanuel College, University of Queensland, reminding him that the special leave previously granted expired that day. The letter says:

"18 May 1993

Mr Chan Hok-yee
Emmanuel College
University of Queensland
Upland Road St Lucia
Brisbane QLD
AUSTRALIA 4067

 

Dear Mr Chan,

I refer to our letter of 28 April 1993 (a copy of which is attached for ease of reference) and wish to remind you once again that the special leave previously granted to you expires today. Accordingly, you should report for duty on 19 May 1993 or confirm in writing your resignation from the Service with effect from 19 May 1993.

Your request to Civil Service Branch for reconsideration of your application for no-pay study leave dated 17 May 1993 does not form any acceptable excuse for not resuming duty. If you do not choose to resign from the Service and fail to report for duty on 19 May 1993, you will be regarded as absent from duty without leave or permission and that you are liable to summary dismissal under CR 57(3). A copy of CR 57 is attached for your information.

Please note in view of the urgency of this matter, I am sending this letter initially by fax, with a copy to follow by registered post.

 

	Yours faithfully,
	(R. Durnan)
	for Director of Immigration"

11. This was followed by a letter to the appellant in Australia as follows:

" 26 May 1993

Mr Chan Hok-yee
Emmanuel College
University of Queensland
Upland Road St Lucia
Brisbane QLD
AUSTRALIA 4067

 

Dear Mr CHAN,

Absence from Duty Without Leave/Permission

Further to my letter of 18 May forwarning your failure to resume duty will be regarded as absence from duty, I am to inform you that you have been absent from duty without leave or permission since 19 May 1993 and that you are liable to summary dismissal under Colonial Regulation 57(3) for a period of unauthorised absence exceeding 21 days with effect from the date of your absence.

If you do not, within 21 days from the date of this letter furnish me with a satisfactory explanation for your absence from duty, other than pending the outcome of your request for reconsideration of your application for no-pay leave, or elect to resign from the service by payment of one month's salary in lieu of notice in accordance with Civil Service Regulation 320, action will be taken under Colonial Regulation 57(3) with a view to your summary dismissal.

In accordance with Colonial Regulation 63, an officer who is dismissed forfeits all claims to any pension, gratuity or other like benefits and to any other benefits or advantages of an officer.

Pending your resignation or dismissal, all sums of money payable to you by Hong Kong Government are being withheld.

Extracts of the following regulations are attached for your information:-

(a) Colonial Regulation 57,

(b) Colonial Regulation 63,

(c) Civil Service Regulation 312(2), and

(d) Civil Service Regulation 320.

 

	Yours faithfully,
	(R. Durnan)
	for Director of Immigration"

12. It is this letter of 26 May which the appellant says was premature and invalid.

13. The 21 days given to the appellant to furnish an explanation for his absence from duty expired on 16 June 1993, that is to say, 7 days beyond the expiration of the period of 21 day's absence from duty for which an explanation was required.

14. On 11 June 1993 (after the absence for the period of 21 days had expired) the appellant wrote and purported to furnish explanations under five heads. On 17 June 1993 the Director of Immigration wrote back as follows:

"17 June 1993

Mr Chan Hok-yee
Emmanuel College
University of Queensland
Upland Road St Lucia
Brisbane QLD
Australia 4067

 

Dear Mr Chan,

Absence from Duty Without Leave/Permission

I would refer to your letter of 11 June 1993 submitted in response to my letter ref 52 in this series dated 26 May 1993.

I would advise that the explanations given in your letter of 11 June 1993 are not acceptable to justify your absence from duty without leave or permission.

Accordingly, I would advise that action will now be taken under Colonial Regulation 57(3) with a view to your summary dismissal.

A copy of this letter will be sent to you by fax with the original sent by registered post.

 

	Yours faithfully,
	(R. Durnan)
	for Director of Immigration"

15. The appellant, through his solicitors, sought other avenues to win his point but to no avail. On 14 July 1993 he was given a final warning by the Director of Immigration. That letter reads:

"I refer to Secretary for the Civil Service's letter dated 30 June 1993 (a copy of the letter is attached) regarding rejection to your application for no-pay study leave.

Please be informed that consideration would be given to retaining your service if you could arrange to resume duty on or before 21 July 1993. Should you fail to report for duty on that date, i.e. 21 July 1993, Secretary for the Civil Service will seek advice at Public Service Commission on recommending that you be summarily dismissed under CR 57(3)."

16. Eventually, on 4 November 1993, the appellant was dismissed under Regulation 57(3), with effect from 19 May 1993. This was communicated by letter dated 8 November 1993.

Was the notice invalid?

17. What is clear in the present case is this: By the time the appellant furnished his explanation for his absence, he had been absent without leave for a period exceeding 21 days and, it goes without saying, his purported explanation related to that absence. Whilst it is, of course, correct that the notice under Regulation 57(3)(b) was sent after only 7 days' absence, the notice itself made it crystal clear that what was required from him was a satisfactory explanation for "unauthorised absence exceeding 21 days", and the appellant was given ample time to furnish his explanation. Complaint might legitimately have been made if, in the letter of 26 May 1993, the appellant had not been given sufficient time to explain. Or, for example, if the letter had not made it clear that what the appellant had to explain was unauthorised absence exceeding 21 days. But this is not the case here.

18. Plainly, when the Governor, or his delegate, comes to exercise his power of summary dismissal, the first thing which must be factually established is that the officer concerned was indeed absent for a period exceeding 21 days without leave. If that is not factually established, the matter cannot go further. This disposes, in effect, of the main point of the appellant's argument. He asks rhetorically: What if, in response to the notice of 26 May 1993, he had purported to furnish an "explanation", say, 10 days later, on 5 June 1993? The answer is simple. As the period of 21 days had not expired, no answer was required at that time. Could the Governor nevertheless have proceeded to exercise his powers of summary dismissal? On the facts of this case, the answer, as it seems to me, is probably Yes. As the letter of 26 May made it crystal clear that the explanation sought related to absence exceeding 21 days, if the appellant had chosen not to explain the whole of that period of absence, he would have had no grounds for complaint. If he had chosen to resume duty after, say, 15 days, or 20 days, he could not, of course have been dismissed under Reg. 57(3): though there might have been disciplinary proceedings under Reg. 57(1). Likewise, if, before the expiration of 21 days, he had managed to obtain leave, there would have been no explanation necessary under Reg. 57(3). But if, on being asked to explain, an officer fails to explain his or her absence exceeding 21 days, the officer is liable to summary dismissal.

19. The Regulation does not state a time for the giving of notice under para 3(b). The circumstances under which such a notice might be given would vary infinitely. There are circumstances when it might be appropriate to give the notice early, as in this case, so that the notice would act also as a warning. Equally, there would be cases where the notice is given long after the period of 21 days has expired. The Regulations impose no fetter in this regard. So long as the notice itself makes it clear that the absence which must be explained is an absence exceeding 21 days, and the recipient is given sufficient time to furnish his explanation, the notice cannot be impeached.

Conclusion

20. In my judgment, the appellant's appeal fails. The judge was correct in his construction of Colonial Regulation 57(3) and the appeal must be dismissed. There should be an order nisi that the appellant pays the costs of the appeal.

Bokhary, J.A.:

21. I, too, would dismiss this appeal. Relief by way of judicial review, including declaratory relief, is discretionary. And as far as damages are concerned, even if there has been some infringement of a person's rights, he is not entitled to damages, other than nominal damages, unless he establishes some actual loss or damage. The appellant, I might add, has not shown any interest in nominal damages.

22. Even if the appellant were right as to the true construction of the regulation here in question, I see no basis on which it would be appropriate in all the circumstances to grant him any of the relief which he seeks. For the only realistic view to take of the facts here is this. No matter when he was given notice, the appellant would have behaved in exactly the same way - with exactly the same consequences.

Power, V.-P.:

23. For the reasons given by Litton J.A. I would dismiss this appeal.

24. The result is that the appeal stands dismissed and we make an order nisi that the appellant pays the costs of the appeal.