MOHAMED YAQUB KHAN v. THE ATTORNEY GENERAL

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JUDGMENT

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Cons, V.-P.:

1. The proceedings today take their origin from an action brought by the Plaintiff, Mr. Mohamed Yaqub Khan, against the Attorney General. The details of that action and the transactions which led up to it may be found fully set out in the judgment that we delivered earlier this year. I do not propose to repeat them. It is sufficient for the moment to say that by that action the Plaintiff contended that his dismissal from the position of Superintendent in the Royal Hong Kong Auxiliary Police had been contrary to the rules of natural justice in that he had not been given a hearing prior to his dismissal. He therefore contended that the purported dismissal was illegal, ultra vires, null and void. He prayed for a declaration in that respect and claimed damages, and further, in so far as it might be necessary, an inquiry as to those damages.

2. The judge below, in a reserved judgment following a lengthy trial, found that there had been no breach of the rules of natural justice and he refused the declaration. However he added that if his decision had been otherwise he would have invited counsel to make further submissions in relation to whether or not he ought to exercise his discretion to grant relief. He then referred to one particular incident about which he would particularly have liked to hear counsel.

3. The Plaintiff appealed from that decision and during the course of the hearing before this Court, - it was I think on the 4th day, - we gave leave to counsel for the Crown, counsel for the Plaintiff not objecting, to add two amendments to his Respondent's Notice, one relating to the judge's discretion, and the other to the Plaintiff's entitlement to damages. The point made as to discretion was that it ought not to be granted, by reason firstly of the conduct of the Plaintiff, secondly of the fact that he had subsequently made representations as to his dismissal, and thirdly, that his representations could not in any event have made any difference to the decision to dismiss him.

4. In our own reserved judgment we concluded that the judge below had been wrong, that the denial of a hearing to the Plaintiff had in fact been a breach of the rules of natural justice. But the two points, that is as to discretion and to damages, being still outstanding we made no further order. Instead we invited counsel to address us at some convenient time as to what further course we ought to take. Unfortunately, due to a series of misfortunes, that convenient time has been postponed until today.

5. Counsel for the Crown suggests that we may consider it more appropriate that the discretion should be exercised by the judge himself and that we remit the case to him for that purpose.

6. Mr. Mills-Owens, for the Plaintiff, submits that in the circumstances it would be most inappropriate if we did so, that it would be an unprecedented move on our part. He goes even further and suggests that we have no jurisdiction to make such an order.

7. That suggestion is based on Order 59 rule 10(1) which provides that this Court shall have the powers and duties of the High Court, including in particular the power of the Court under Order 36 to refer any question or issue of fact for trial before or inquiry and report by a special referee. This excludes by implication, so it is suggested, a reference to the trial judge.

8. With every respect I do not find that implication contained in the rule. It is by no means uncommon for this or any other Court of Appeal to refer back to the trial judge issues that remain unresolved. Ridge v. Baldwin⁽¹⁾ is an example from the highest authority. I must  confess that I cannot offhand think of an instance where this or any other court has referred back the exercise of a discretion, but I do not see why in principle it should not do so.

9. This Court will on occasion exercise for itself the discretion of the judge below. Most commonly this occurs where the judge has already exercised a discretion but on a wrong principle, or where he has refused to exercise it. It might be thought undesirable that in those circumstances he should be asked to make a second attempt. But the position is different where it is merely that the judge has not exercised his discretion at all. There is no reason why he should not be asked then to do so. Indeed, where there are factors which make it more appropriate that he, rather than this Court should do so, it seems to me that this Court is under a duty to send it back.

10. In this respect I find myself strongly influenced by the second matter which remains unresolved, that is the claim for damages. At the commencement of the trial it was agreed that the question of damage's be deferred until the question of natural justice had been decide. The question lapsed of course when the judge refused the declaration, but will be revived if the declaration be granted. That is why it is now in the Respondent's Notice, with the suggestion that in any event the Plaintiff is not in law entitled to damages.

11. Mr. Mills-Owens contends that being then only a question of law this Court may conveniently deal with it, and should entitlement be established, refer quantum to a master for assessment. He does not wish to call further evidence, and is content that our decision be made upon such evidence as has already been adduced.

12. With respect I do not think that would be a proper c ourse. The claim for damages was made before the judge below. It has not been dealt with by him yet merely because all concerned thought it would be more convenient to deal with another matter first. It would in my view be wrong for this Court to usurp the judge's functions merely because that other matter has been contested on appeal. I am firmly of the opinion that whatever course is taken as regards his discretion to grant a declaration, the question of damages should go back to the judge.

13. However although the availability of damages as a matter of law can be completely divorced from the exercise of discretion, the corollary does not follow. Whether or not damages will ultimately be available is something that the judge may well take into consideration when deciding whether or not to exercise his discretion. It seems to me therefore more convenient that those questions should be dealt with together in the lower court.

14. Another consideration which leads me to the same conclusion is that the exercise of the discretion in the present instance will not be a simple matter. We have been referred briefly to Wade on Administrative Law, 5th Edition at page 475. Undoubtedly there will be considerable argument and references to authority as to what principles ought to be applied and what approach should be adopted. It is better that the judge below should make his own decision and give his reasons. If it is thought necessary to question those reasons the matter may be brought back to this Court. Mr. Mills-Owens suggests that this would be an unnecessary proliferation of proceedings. With respect I do not agree. These are questions which normally would have been decided in the lower court, with the possibility of an appeal thereafter. What we are being asked to do now is to miss out one step of the normal process. Without good reason I do not think we should do that.

15. Mr. Mills-Owens further argues that what in effect the Crown is seeking to do now is to reinstate, only under a different guise, the defence that was originally filed in the action, but was withdrawn by leave in 1981. It would be unfair now, he suggests, to allow the Crown to rely on an issue that had been deliberately withdrawn.

16. Moreover, had it been appreciated at the time that the issue was still live, the Plaintiff would have called further evidence on this aspect at the hearing.

17. As I understand the law the grant of a declaration is, and always has been within the discretion of the trial judge. It is not an issue in the normal sense which needs to be pleaded if it is to be considered. It is something that is inherent in the very nature of the relief itself. It is a discretionary relief, not a relief available as of right. There is no way therefore by which it can, as it were, be waived by the Defendant, although the conduct of a defendant, like that of a plaintiff, may be something which a judge will take into consideration when deciding whether or not to grant relief.

18. Had the question of further evidence been raised when the application to amend was made it may be that it would have given us some cause for concern. I would myself put the matter no higher than that. But no objection was taken at the time, and I cannot see that the point has any validity now.

19. For the reasons I have given I would for myself allow the appeal, set aside the judgment below and remit the action to the judge below to continue the proceedings in the light of our earlier decision.

Silke, J.A.:

20. I am in complete agreement with that which my Lord the Vice-President has just said and with the order he proposes. There is nothing I can usefully add.

Clough, J.A.:

21. I also agree and have nothing to add.

22. After discussion with counsel and hearing submissions on costs it was ordered that the appeal be allowed; the judgment below set aside; the action remitted to the trial judge to continue the proceedings in the light of the Court's earlier judgment; the Plaintiff to have his costs of the appeal and of the hearing so far below; and that the cost of this day's hearing to be in cause.

(1)    [1964] A. C. 40 at p.65