PANG HON WAH AND OTHERS v. THE ATTORNEY GENERAL

IN THE COURT OF APPEAL

1996, No. 239

(Civil)

- Headnote -

Judicial review relating to reports of Investigating Committees constituted under Colonial Regulation 57 and orders of the Director of Housing to compulsorily retire and dismiss employees of the Housing Department - Proceedings erroneously identified The Attorney-General as the Respondent - leave to issue proceedings under Order 53 r3 Rules of the Supreme Court Cap 4- The requirement in r4 that the application must be made promptly and in any event within three months - Inordinate delay - How the discretion to extend time should be exercised - Judge on hearing an application to discharge the ex parte leave given by another Judge is not exercising an appellate function - Whether leave should have been granted.

Held (Court of Appeal): The Judge erred. Exercising the discretion afresh: Leave to issue proceedings to challenge the reports of Investigating Committees refused; leave to issue proceedings relating to the decisions of the Director of Housing granted. The title to the proceedings should be amended.

IN THE COURT OF APPEAL

1996, No. 239

(Civil)

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J U D G M E N T

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Litton V-P giving the judgment of the Court:

Introduction

1. There are seven respondents to this appeal.

2. The history of the proceedings is as follows. On 14 April 1996 three respondents, low-ranking employees in the Housing Department, sought leave in the High Court under Order 53 r3 of the Rules of the Supreme Court Cap 4 to institute proceedings for judicial review. They were Mr Pang Hon-wah (A1), Mr Tam Ming-sin (A2) and Mr Yiu Hing-lam (A3). On 29 April 1996 Keith J entertained the applications ex parte and granted leave.

3. On 14 May 1996 four other employees, three of the same grade as A1 and A3, represented by the same firm of solicitors, also applied for leave ex parte to institute proceedings for judicial review. They were Tso Wai-ching (A4), Lau Wing-kong (A5), Tang Chi-wing (A6) and Lee Tai-on (A7). They too were granted leave by Keith J, on 28 May 1996. In granting leave, Keith J said he was doing so on the footing that he had not detected any significant or material difference between these seven cases and those of two other employees in the Housing Department who had successfully brought proceedings for judicial review in HCMP 3367/95 and 3368/95 (decided by Findlay J on 2 February 1996). Keith J also directed that all seven cases should be heard together and he added: Although he had extended the period in which the applications should have been made, it was open to the respondent to the applications (named as the Attorney-General) to raise the issue of delay on the substantive hearing under s21K(6) of the Supreme Court Ordinance.

4. On 28 June 1996 the Attorney-General applied to the court to discharge the ex parte leave granted on 29 April 1996 in favour of A1, A2 and A3 on four grounds:

"i. There had been undue delay in making applications for leave to apply for judicial review by the three Applicants;

ii. they have not shown good reasons for the delay;

iii. the granting of leave would be likely to cause substantial hardship to, or substantially prejudice the rights of the Respondent or would be detrimental to good administration;

iv. there has been material non disclosure to the Court."

5. This was followed by another application made on 15 August 1996 seeking the same relief in relation to the ex parte leave given on 28 May 1996 to A4, A5, A6 and A7. The same first three grounds were relied upon, but not the fourth: material non-disclosure was omitted as a ground.

6. The two summonses went before Findlay J who, by his judgment dated 15 October 1996, dismissed the Attorney-General's applications with costs.

7. Hence the appeal to this court.

The proper parties

8. On the record, the appellant before the court (the respondent in the court below) is the Attorney-General. This is a misnomer. It springs from the erroneous way in which these proceedings were commenced. This has unfortunate consequences.

9. There were in fact two separate targets of the applicants' complaints: (i) the findings of misconduct of the seven separate Investigating Committees constituted by the Governor under Reg 57(1) of the Colonial Regulations to investigate the charges of misconduct alleged against the applicants; and (ii) the decisions of the Director of Housing, as the Governor's delegate, to order punishment in consequence of the findings set out in the reports of the Investigating Committees.

10. The Attorney-General, in his office as such, was not impeached and should never have been named as the respondent to the applications. The judge, in coming to his conclusion as he did that the applications for judicial review should go ahead, should have directed that the formal applications be amended to show the true parties before the court. Apparently, the point was not raised by counsel. The effect of this mistake was to blur the wholly separate functions and duties of the seven Investigating Committees on the one hand and the Director of Housing (acting as the Governor's delegate) on the other.

11. For the purpose of this judgment, it will be assumed that, in reality, the appellants are respectively (i) the seven Investigating Committees and (ii) the Director of Housing.

The respondents to the appeal

12. The respondents to the appeal, as mentioned earlier, are the following individuals:

(1) Mr Pang Hon Wah (A1). He was, until compulsorily retired with full pension on 21 July 1995, a Workman in the Squatter Control (Islands) Unit of the Housing Department. The Unit was organised into 9 teams of Workmen, each comprising two to three Workmen, each under the direct supervision of a Housing Officer. Immediately above the nine Housing Officers in rank were three Assistant Housing Managers. The Unit was headed by a Housing Manager. The office of the Unit was located in Central Hong Kong. A1's main work was to patrol and to carry out inspections of structures and to take preventive measures and demolition action in relation to illegal structures, under the instructions of the Housing Officer. He worked mainly in the outlying islands: Lamma, Cheung Chau, Ping Chau and Lantau. He had approximately 14 years' service when he was compulsorily retired.

(2) Mr Tam Ming Sin (A2). He was compulsorily retired on 12 August 1995. Prior to that he was employed as an Artisan at the Estate Office at Tung Tau Estate. This was headed by a Housing Manager with two Assistant Housing Managers, 12 Housing Officers, one Chief Estate Assistant, two Senior Estate Assistants, 11 Artisans, one Foreman and six Workmen. The applicant's main work was to carry out minor repainting and repair work within the Tung Tau Estate. He was under the immediate supervision of the Chief Estate Assistant. Work was assigned to the Artisans by means of notes in the assignment book. When the artisans received such instructions, they would leave the office to carry out the work in different parts of the estate. A2 had eight years' service when he was compulsorily retired.

(3) Mr Yiu Hing Lam (A3). He was compulsorily retired on 27 May 1995. Prior to that he worked as a Workman in the Squatter Control (Tsuen Wan) Unit. There were 15 teams, each with 4-5 Workmen, under the immediate supervision of a Housing Officer. Above the 15 Housing Officers in rank were five Assistant Housing Managers and a Housing Manager. His work was similar to that of A1 except that it was within the Tsuen Wan area. He had 22 years' service before his compulsory retirement with full pension.

(4) Tso Wai Ching (A4). He was compulsorily retired with full pension on 10 June 1995. Prior to that he was a Workman in the Squatter Control (North) Unit, the office of which was at Sheung Shui. This unit comprised 30 teams of 2-3 Workmen each under the direct supervision of a Housing Officer. Above them were six Assistant Housing Managers, and a Housing Manager. Their squatter control work was similar to that of A3, except that their area was the northern New Territories. A4 had 12 years' service before he was compulsorily retired.

(5) Lau Wing Kong (A5). He was dismissed on 1 April 1995 with loss of all accrued pension and benefits. Like A4 he was a member of the Squatter Control (North) Unit. He had 14 years' service prior to his dismissal.

(6) Tang Chi Wing (A6). He was compulsorily retired with full pension on 30 May 1995. Like A4 and A5 he was a Workman in the Squatter Control (North) Unit. He had 14 years' service before his compulsory retirement.

(7) Lee Tai On (A7). He was dismissed with loss of all accrued pension and benefits on 9 August 1995. Prior to that he was an Artisan in the Squatter Control (Tai Po) Unit. This comprised 30 teams of 2-3 Workmen, under the direct supervision of 30-40 Housing Officers. Above these were 10 Assistant Housing Managers and the Unit was headed by a Housing Manager. A7 had 27 years' service before he was dismissed.

The proper approach

13. It must be emphasized at the outset that Findlay J was merely dealing with the question, on an inter partes basis, as to whether leave should be given to institute proceedings for judicial review. He was not deciding whether relief should be granted to the applicants. The matter before him was at the "threshold" stage and, as Lord Diplock observed in Inland Revenue Commissioners v. National Federation of Self-employed and Small Businesses Limited [1982] AC 617 at 643H-644B:

"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."

14. Nevertheless, for the proper determination of this appeal, some of the background facts - pared to the minimum - must be stated.

Background facts

15. Following complaints, the Housing Department commenced an internal inquiry into the attendance records of a large number of Workmen and Artisans, and perhaps of grades of officers above those ranks. This was done against Immigration movement records. It was found that many of them had unauthorised absences. The entries in various Attendance Books were also found to be false. As a result they were asked in writing to furnish explanations. When the explanations were found not to be satisfactory, their cases were referred to a screening panel, established within the Housing Department to deal with staff discipline, for further examination and recommendation. The recommendation of the screening panel was that, in a large number of cases, disciplinary proceedings should be instituted under either Colonial Regulations 56 or 57.

Colonial Regulations 56 and 57

16. Colonial Regulation 56, where relevant, states:

"56(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 is not serious enough to warrant proceedings under Regulation 57, he may cause an investigation to be made into the officer's conduct ....

(2) If after such investigation the Governor is of 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."

17. Colonial Regulation 57, where relevant, states:

"57(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 officers' conduct ....

(2) If after such investigation the Governor is of 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."

18. In relation to each of the applicants, proceedings were instituted under Reg 57.

Disciplinary Proceedings Regulations

19. Under the Disciplinary Proceedings (Colonial Regulations) Regulations an investigation ordered by the Governor for the purposes of Colonial Regulation 57 is conducted by an Investigating Committee consisting of two or more public officers senior in rank to the officer accused of misconduct.

20. It is clear from those Regulations, read as a whole, that the function of the Investigating Committees was in each case to inquire into the charges brought against the officer concerned and, on the completion of the investigation, to make a report to the Governor consisting of:

(a) a record of the proceedings;

(b) such findings of fact as the Investigating Committee might consider relevant;

(c) the opinion of the Investigating Committee as to whether or not the facts amounted to misconduct: see Reg. 7(2).

21. If, during the investigation, further grounds of misconduct were disclosed, the Investigating Committee had no power to deal with that but was required to adjourn the proceedings and refer them to the Governor: Reg 18.

22. Regulation 8(4) states:

"(4) An investigation Committee may inquire any matter and admit and take into account any evidence or information which the officer or the Committee considers relevant, and shall not be bound by any rules of evidence."

23. On its face, this suggests that the Investigating Committees had a wider function than merely to inquire into the charges of misconduct but, in the context of the regulations read as a whole, this plainly was not the case. The function of the Committee was, in essence, confined to the circumstances of the charges before it and its reports and findings must relate to those charges: though it could of course comment on mitigating factors and departmental procedures if it considered it appropriate to do so.

Disciplinary proceedings against the applicants

24. In relation to the applicants, each of them faced two charges:

(i) absence without leave and

(ii) making false entries in Attendance Books.

25. A1 and A2 faced an additional charge: leaving Hong Kong whilst on sick leave without permission. All of them pleaded guilty on charges (i) and (ii). A1 and A2 were found guilty on the additional charges as well.

26. The periods of absence without leave, in relation to the applicants, were as follows:

(i) A1: 32 occasions during the period 2 January 1993 to 17 July 1993.

(ii) A2: 27 occasions between the period 2 January 1993 to 31 May 1993.

(iii) A3: 17 occasions during the period 11 January 1993 to 16 July 1993.

(iv) A4: 30 occasions during the period 4 January 1993 to 16 July 1993.

(v) A5: 141 occasions during the period 2 January 1993 to 17 July 1993.

(vi) A6: 41 occasions during the period 2 Jan 1993 to 10 July 1993.

(vii) A7: 109 occasions during the period 1 March 1993 to 3 September 1993.

 

27. The "occasions" when the applicants were absent were, apparently, taken purely from the Immigration movement records, covering movement between Hong Kong and Shenzhen, but we do not have any evidence as to the precise periods covered by the investigations in respect of each applicant. For example, in relation to A7, does it mean that he never went to Shenzhen in the months of January and February 1993? And in relation to A1, A3, A4, A5 and A6 that they ceased going to Shenzhen after the middle of July? And in relation to A2, that he ceased going to Shenzhen after 31 May? Moreover, the counting of "occasions" could only, at best, give an indication of culpability. Take the instance of A5, Lau Wing-kong, dismissed after 14 years' service with loss of all rights for absences on 141 "occasions" between 2 January and 17 July 1993: On Saturday 2 January 1993 he was late by 36 minutes. That counted as one occasion. On Friday 5 February 1993 he was absent for about 1 hour 20 minutes between 10.57am and 12.17pm. That was another "occasion". On Tuesday 9 February 1993 he was absent for just over 1 hour, from 11.13am to 12.29pm. That counted as another occasion. But, in respect of A1, who were merely retired on pension and not dismissed, he absented himself from 11.44am on Tuesday 26 January until Friday 11.49am, and that counted also as one occasion. And from 12.46pm on Monday 15 March to 8.28am on Thursday 18 March: that again was counted as only one occasion.

28. Obviously, the Committees cannot be criticised for this, because that was the evidence laid before them, and such defects as there might have been in the way the charges were presented would have been apparent on the face of their reports. But if the decision-maker - the Director of Housing - was judging culpability purely "by numbers" then there is something fundamentally questionable as regards that approach. We will need to revert to this point later on.

Grounds for impeaching the findings of the Investigating Committees

29. It would be appropriate first of all to deal with the applications relating to the findings of the Investigating Committees and then turn, later on, to the decisions of the Director to impose punishment. These are entirely separate functions, performed by wholly different persons, applying their minds to distinct considerations.

30. Before examining the grounds put forward by the applicants for impeaching the findings of the various Investigating Committees, it is necessary to reiterate the functions and powers of the High Court on judicial review.

31. In this process, the Court is not, in any way, exercising an appellate function. For decisions of bodies such as the Investigating Committees to be susceptible to judicial review they must fall within one of the three heads set out by Lord Diplock in Council for Civil Service Unions v. Minister for Civil Service [1985] 1 AC 374 at 410-1:

(i) Illegality: That the committees have misunderstood the law regulating their decision-making powers and failed to give effect to them; or

(ii) irrationality: "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223); that is to say, no reasonable Committees properly directing themselves as to the law could possibly have reached the findings they did; or

(iii) procedural impropriety: failure to observe basic rules of natural justice or failure to act with procedural fairness towards the applicants.

32. The grounds lodged on behalf of the seven applicants to impeach the findings of the investigating Committees are virtually identical. Take the case of A1. It states:

"24. The findings of the Committee ... should be quashed because they had failed to investigate into the circumstances surrounding the charges thoroughly. Had the Committee done so there is good possibility that it would not have come to the same findings....

25. Another ground for this application is that the Applicant's case was not fully heard. The Applicant did not have the opportunity to state his own case starting from the beginning of the investigation as he was required to submit his representation through his supervisors. He could not and dared not say that it was the supervisor who had release him. When appearing at the hearing, he thought that he was bound by what he had stated earlier in his letter, he did not dare to change his version. He was also worried that if he had told the Committee anything about the standing practice, he would have difficulty working with his supervisors again."

33. Failure "to investigate into the circumstances surrounding the charges thoroughly" (para 24) is a qualitative statement: It is, at its highest, a statement concerning the quality of the Committee's investigations into the charges. That could never amount to a ground for quashing the findings. As to para. 25, the "supervisor" referred to in that paragraph was Mr Cheung Kim Ming, an Assistant Housing Manager in A1's unit. He was chosen by A1 as his friend to accompany him at the investigation; the Regulations allow for this. A1 admitted two of the three charges brought against him. He denied the third. The case as put to the Committee by A1 was in essence this:

(i) He worked mainly on Lamma, Cheung Chau, Ping Chau and Lantau Islands and normally met the Housing Officer at the Ferry Pier at 8.30am to report for work.

(ii) The Housing Officer carried the Attendance Book with him, but he sometimes forgot.

(iii) During the relevant period he had a substantial balance of leave on hand, and the Housing Officer had leave applications signed in blank by A1.

(iv) During the period in question (January to July 1993) A1 was absent in China on many occasions because his ancestral home was damaged by heavy rain and he had to return to his home town to help in rebuilding the house.

(v) His supervisor, the Housing Officer, knew of his absences.

34. At the hearing Mr Cheung, attending as A1's friend, made strong statements in support of his case. For example, he is recorded as saying:

"The responsibility is ... mainly placed on the Housing Officer. If the Housing Officer brings along the Attendance Book with him, he can let the Workman sign on the Attendance Book every day. But if the Housing Officer forgets to bring the Attendance Book due to negligence, then the Workman can sign on the Attendance Book only afterwards. So, whether the Workman can make correct entries on the Attendance Book depends to a great extent on whether the Housing Officer brings the book to them. That is one of the reasons why the Workmen, when they sign on the Attendance Book a few days later, have the tendency to fill in the gaps in the Attendance Book."

35. Mr Cheung also adverted to the possibility that, in some instances, there could be a misunderstanding between the Workman and the Housing Officer: The Housing Officer, having a number of signed leave application forms in hand, might be thought to have submitted the applications for leave when, in fact, he had not done so.

36. The Committee's report on the charges against A1 concluded as follows:

"XVI. Recommendation on departmental procedures

Mr Pang's case of misconduct has reflected poorly on the aspect of supervision and management of staff in the office where he worked during the period in question. Moreover, it holds the department to mockery in that Mr Pang's repeated absence from duty without leave or permission and the false entries made by him on the Attendance Book were unheeded by his supervisor(s). It would appear that the signing on the Attendance Book was a sheer formality. The leave-taking arrangement should be reviewed and improvement on the system of attendance control and supervision is badly needed and should be made promptly."

37. It will be recalled that A1 pleaded guilty to the charges of absence without leave and false entries in the Attendance Book. A finding of misconduct by the Committee on those charges was inevitable. The mitigating circumstances were fully set out in the report; and here, as can be seen, the Committee was in its recommendations absolving A1 of personal culpability to a large extent: The signing of the Attendance Book "was a mere formality". When the findings are as favourable to A1 as this it seems bizarre that he is seeking to have them quashed.

38. It would overload this judgment unduly to attempt to summarise the proceedings of the other six Investigating Committees. Nor would it be fruitful to do so because the case for discharging the leave granted by Keith J to judicially review the findings of the Investigating Committees is focused not so much upon the paucity of the underlying material as on the issue of delay.

39. It is to this issue that we must now turn.

Delay

40. In considering whether any of the proceedings of the seven Investigating Committees can be properly impeached - that is, whether their findings might, on further consideration, be quashed by orders of certiorari - the provisions of Order 53 r4 of the Rules of the Supreme Court are relevant. They state:

"(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding."

41. The reports of the various Investigating Committees range from 12 December 1994 in respect of A4 to 15 March 1995 in respect of A2. The applicants, however, did not learn of these findings until they were compulsorily retired or dismissed. Counsel for the Director concedes that, in considering the time limit of three months under r4(1) time should run from the date of notification of their compulsory retirement or dismissal. On that basis, the extent of the delay ranges from nine months in the case of A1 to 13 months in the case of A5. But, the fact that the court is dealing with disciplinary proceedings which are stale cannot be ignored.

42. The requirement in r4 is that the application must be made promptly, and in any event within three months. There can therefore be cases where, even though the application was made within the 3-month period, leave might be refused: This emphasizes the importance of expedition in this area of the law.

The judge's approach to "good reason" for the delay

43. For the court to extend time, there must be "good reason".

44. Findlay J, however, did not apply his mind to this question. Adverting to the fact that the ex parte judge (Keith J) thought there was good reason for extending time, Findlay J went on to say (p11-K of his judgment):

"I do not sit as an appellate body from the decision of Keith J and I do not think there was any sufficient material non-disclosure that would justify my interference with his decision."

45. This approach was plainly erroneous. The decision of the ex parte judge was, by its very nature, provisional. The inter partes summons before Findlay J raised delay as a distinctive ground for refusing leave and it was the judge's function at the inter partes hearing to deal with that. In so determining he was not, in any way, acting in an appellate capacity. He was exercising the High Court's original jurisdiction to determine the issue inter partes, for the first time.

46. The judge having erred in this regard, it falls upon us to examine the matter afresh.

Should the 3-months count only from the judgment in HCMP No. 3367 and 3368/95

47. All the applicants say that they did not think of applying for leave to institute proceedings for judicial review until Findlay J's judgment in HCMP 3367 and 3368/95, relating to the cases of Cheung Sai-to and Au Man-wah. That judgment was given on 2 February 1996. The applications of A4-A7 were not lodged until 15 May 1996: They were not made "promptly" in terms of Order 53 r4(1), and were not even within the limit of 3-months. Accordingly, their applications to impeach the findings of the Committees must be looked at even more critically.

48. As to the judgment in HCMP 3367 and 3368/95, and whether that affords "good reasons", the issues there must be briefly examined.

49. Cheung and Au were both low-ranking employees in the Housing Department. Au was attached to a Squatter Control Unit. The judgment is unclear as to the nature of Cheung's work. They, like all the seven applicants in the present case, were charged with (i) absence without leave and (ii) making false entries in Attendance Books. They, like the applicants in this case, pleaded guilty to those charges. Cheung was dismissed and Au was compulsorily retired. The findings of the Investigating Committees and the punishments ordered by the Director of Housing were quashed by Findlay J on judicial review.

50. As regards the Committees, the grounds for the judge's conclusion appear to be these:

(a) Both Cheung and Au alleged in the course of the hearing before the Committee that they had permission from their Supervisors to leave early after their work was done. Cheung said: 'Our Supervisors made the decision what time we could go, not us.' Au said: 'It was a common practice in Squatter Control Unit for Supervisors to "sanction" unofficial time-off to "recompense" workers on the teams as gesture of appreciation for the hazardous and taxing nature of their duties.'

(b) And yet, despite the above, the report of the Investigating Committee, dealing with the facts established, did not mention Cheung's allegation that he was absent because his Supervisors had allowed him to leave; the approach of the Committee, as revealed by an affirmation made by the Chairman, was that examination of this issue was 'not necessary to establish the charges'. He was, in effect, saying that mitigating factors formed no part of his fact-finding function. As regards similar points made by Au, the Committee commented that these were 'but empty statements by the accused attempting to put the blame on others ....'.

51. The judge therefore concluded as follows:

"If one wishes to put this in the language of the law of judicial review, those responsible for the proceedings did not investigate and take into account relevant matters when they should have done so, and they took into account matters that had not been properly investigated when they should not have done so."

52. How does this judgment, brought to the attention of A1 or his advisers in February 1996, justify their failure to institute proceedings within time?

53. We have, earlier in this judgment, looked at the way the Investigating Committee dealt with the charges against A1 in some detail. As revealed on the papers before us, far from the Committee brushing aside the mitigating factors put forward on A1's behalf at the hearing, the Committee expressed the view that departmental procedures had held the department to mockery. The Committee found that A1's repeated absences and the false entries in the Attendance Book were unheeded by his Supervisor. It said: "It would appear that the signing on the Attendance Book was a sheer formality."

54. It is difficult to see how the decision in HCMP No. 3367 and 3368/95 is relevant to A1 or afforded him good reason for the delay in instituting proceedings to impeach the findings of the Committee.

55. At the hearing of the appeal, it was common-ground that the cases of all seven applicants stood or fell together. This removes the necessity for a detailed examination into the individual cases of the other six applicants. In any case, as regards A4-A7, the applications on their behalf were not made until over three months had elapsed after the judgment in HCMP 3367 and 3368/95. Having reached this point, the conclusion is inevitable that no "good reasons" have been put forward for the delay in instituting proceedings to impeach the findings of the Investigating Committees.

Broader considerations for refusing leave vis-à-vis the Committees

56. As this court said in Ho Ming-sai v. The Director of Immigration [1994] 1 HKLR 21 at 27, the discretion vested in the High Court under Order 53 r3 is not an easy one to exercise. Often, the aggrieved citizen has little material in hand at the leave stage: The court therefore should not take too strict a view of the "good reasons" under r4(1) before being satisfied that an extension of time to institute proceedings should be given.

57. One of the considerations must obviously be the underlying merits, and what the consequences might be if the discretion were exercised in the applicants' favour and the proceedings should go ahead.

58. Here, none of the applicants had suggested to the Investigating Committees that they were not, in a technical sense, guilty as charged. The real issue was what, properly, might be the punishment imposed. The decision as to punishment was not one for the Investigating Committees to make. All that they could fairly have done was to have set out all the relevant circumstances bearing upon the question of punishment, in the form of a report to the Governor.

59. We have read all seven reports with care and have detected no flaw in the procedures which the Committees have applied. They appear to have embarked upon their tasks with care. Accordingly, had the question of delay not been a decisive factor, the question would still have arisen as to whether leave was properly granted to institute proceedings to impeach the findings of the Committees. In this regard, some broad statements of Findlay J are worthy of note. At p3 of his judgment, after referring to the "practice within the department to permit absences and false entries in Attendance Books, or to turn a Nelsonian eye in their direction" the judge said:

"I do not know if the disciplinary authority has undertaken this investigation [into departmental malpractices]. If it has not done so, it has not properly investigated the circumstances surrounding the alleged charges against those disciplined. If it has done so, and has chosen not to put the facts before the court, the same situation prevails; it cannot complain if I draw the inference that it has not properly investigated the circumstances surrounding the charges."

60. It is not clear who was "the disciplinary authority" the judge had in mind. This is where the vice of instituting proceedings against "the Attorney-General" comes in. Before the judge, the functions of the Committees and of the Director were blurred. If there were departmental malpractices, those were not matters which the power of certiorari under s21K(1)(a) of the Supreme Court Ordinance could cure. One thing is sure. The Disciplinary Regulations do not invest Investigating Committees with the general powers of a "disciplinary authority", nor do they impose on the Committees a general duty to investigate malpractices.

61. Earlier in this judgment, we have sought to delineate the functions and duties of the Investigating Committees by reference to the Regulations. Under the Regulations, each Investigating Committee is separately constituted to investigate specific charges against the officer named. It has no roving function nor could it properly have turned the proceedings into the kind of "investigation" the judge had in mind.

62. Having reached this point, the conclusion is inevitable that leave to institute proceedings to quash the findings of the Investigating Committees should have been refused.

Decision of the Director of Housing regarding punishment

63. Findlay J had clearly reacted with a sense of shock to the punishments imposed: five applicants were compulsorily retired and two dismissed.

64. In reaching his conclusion, the judge drew no distinction between the cases of A5 and A7 who were dismissed with loss of all accrued rights and those of the other five who were merely retired with full pension.

65. But, again, at the leave stage, it is common ground that the seven cases stand and fall together.

66. Take the case of A7, Lee Tai-on, an Artisan in the Squatter Control Unit at Tai Po, dismissed without pension after 27 years' service. His home was in Shenzhen where he lived with a mainland woman and two small children. Looking at the Immigration movement records, as set out in the Committee's report, a clear pattern emerges. He was at work most days as required, but left work early. Sometimes (once or twice a month) he stayed in Shenzhen after leaving work early on Friday and did not return until Monday morning. The number of "occasions" of his absences amounted to 109. Very often he left work round about noon but appears to have reported for work promptly at 8am the following morning: at any rate, it was not alleged that he failed to do so. Some of the occasions counted against him were trivial: For instance on Monday 29 March when he left one hour ten minutes early, or Thursday 15 April when he left 20 minutes early.

67. The Committee, in relation to his absences within the period 1 March to 3 September 1993 when A7 had to deal with a family crisis, said this:

"The Committee, after repeated questioning, is satisfied that the accused did have genuine hardship which warrants lenient treatment on humanitarian grounds in this case. .... Judging from the way how he presented his case, in a most clumsy manner, the Committee is of the opinion that the accused is a most unsophisticated person who does not even bother to seek to hide anything. Sheer ignorance has led him into his demise. He is prepared to accept a demotion and has asked to be dealt with leniently. The Committee has, on examining the documents tendered, satisfied itself the truthfulness of the story as presented. ... The department may wish to take into account the above mitigating factors in awarding the punishment to the accused."

68. Such being the nature of the report which the Director had to consider in relation to A7's case, the question for the judge was simply whether the extreme punishment of dismissal might, at a substantive hearing, be adjudged to be "Wednesbury" unreasonable; or (to adopt Lord Diplock's approach in Inland Revenue Commissioners v. National Federation of Self-Employed Businesses (supra) at 643-G) whether A7 had made out a prima facie case of reasonable suspicion that the Director had imposed the punishment for ulterior reasons extraneous to the merits of the case.

69. The Director had a big range of options in dealing with A7, in light of the findings of misconduct. This is dealt with under Colonial Regulation 54(3) and these options included reprimand, financial penalty in the form of stoppage or deferment of salary increment, and finally compulsory retirement and dismissal. The last is the most severe penalty that could be imposed.

70. Given the facts as we view them at this "threshold" stage, it is, perhaps, not surprising that the judge reacted with a sense of outrage. Whilst it was no part of the Investigating Committee's function to conduct a roving inquiry into the procedures and practices of the Squatter Control Unit (Tai Po), the Director of Housing stood on a different footing in relation to punishment. He must have been aware of the laxity in attendance and in the keeping of records in Squatter Control Units generally, if not in that particular unit as well. It seems highly improbable that an Artisan could have been late or had left work early on over 100 occasions between March and September without at least the Supervisor being aware of it. If, indeed, there was a tacit understanding that a Workman could leave early once his work was done, and if the signing in and signing out on the attendance book was treated as a mere formality, then these were clearly mitigating circumstances for the Director to consider. To heap on the shoulders of one Artisan all the ills of the department must, at least arguably, be "Wednesbury" unreasonable. And, as earlier indicated, there is in the papers before us more than a whiff of suspicion that the Director did not truly apply his mind to the gravity of the offence overall and was merely imposing punishment "by numbers".

71. It has not been argued for the Director that good administration must inevitably suffer if, at the end of the day, a court should, by quashing the decision of the Director, require him to look at the case again.

72. This is not to say that A7 will, at the substantive hearing, necessarily succeed. All that Findlay J was concerned with at the leave stage was whether there was material for further consideration: Material of such cogency that despite the substantial delay in the institution of proceedings, A7 should be granted leave to apply for judicial review of the Director's decision.

73. It is not possible to say, upon the material before the court, that the judge erred in this regard.

Conclusion

74. There was inordinate delay in relation to both the findings of the Committees and the decisions of the Director. But the considerations relating to them are wholly different. (1) The findings of the Committees go back further in time. (2) The grounds for impeaching the Committees are virtually non-existent whilst those relating to the Director could be said to be cogent - at least in relation to some cases. (3) It may not be possible for the Committees to embark upon their tasks again, if their findings were quashed: There is evidence before us that some witnesses are no longer available. The Director stands on a different footing. If his decisions (or some of them) were quashed, he simply considers the cases on paper again. There is no question of any re-hearing.

75. For these reasons, the Attorney-General's appeal against leave granted to institute proceedings to impeach the findings of the Investigating Committees is allowed; the appeal relating to leave to institute proceedings to impeach the decisions of the Director is dismissed.

76. The orders we make are therefore as follows:

(1) The order of Findlay J of 15 October 1996 is quashed;

(2) leave to issue proceedings for relief in relation to the reports of the Investigating Committees is refused;

(3) leave is given to the applicants to issue proceedings relating to the decisions of the Director of Housing to order compulsory retirement or dismissal of the applicants, as the case may be;

(4) the title to the proceedings and references to the parties be amended to delete "the Attorney-General" and to substitute therefor the Director of Housing.

77. In these circumstances, the appropriate order nisi as to costs would be that there should be no order.