RE CHEUNG SAI TO AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS Nos. 3367 and 3368 of 1995

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J U D G M E N T

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Findlay, J.:

Background

1. These two matters were separate applications for judicial review, but, because they are so similar, they were argued together, and I will give one judgment.

2. Both applications seek an order of certiorari to quash the findings of disciplinary hearings, that regarding Mr Cheung dated 9 January 1995 and that concerning Mr Au dated 12 December 1994, and the confirmation of those findings and the imposition of punishment by the Director of Housing dated 10 August 1995. The punishments were that Mr Au should be retired compulsorily and Mr Cheung should be dismissed from government service.

3. The background of this matter established by the evidence is that the Housing Department were alerted "by some anonymous complaints" to instances of unauthorised absences from duty and fraudulent claims to overtime allowances. The Director of Housing ordered a full investigation into the Foreman, Estate Assistant, Artisan, Workman and Works Supervisor Grades. After collecting initial evidence, the alleged offenders were asked for explanations. Decisions were then made regarding disciplinary hearings. At the conclusion of the investigation, a total of 1171 cases were substantiated; 1036 involving absence from duty, 29 involving claims for overtime, and 106 cases involving both. A majority of the 1036 cases involved late arrivals and early departures for an aggregate period of not more than 3 days. Of the 1171 officers found guilty, 769 were given verbal or written warnings, 365 were reprimanded or severely reprimanded and 37 were removed from the service by way of compulsory retirement or dismissal.

The Proceedings against Mr Cheung

4. The charges of being absent from duty without leave or permission and making false entries in the attendance book were read to Mr Cheung. There was then some discussion between the Chairman and Mr Cheung during which it appeared that Mr Cheung admitted the charge relating to absence, but denied that relating to the false entries. However, during the hearing, Mr Cheung told the Investigating Committee that he went to China after he had finished his work; sometimes 10 o'clock, sometimes 11 o'clock and sometimes 2 o'clock. "Once I had finished my work, I would ask my supervisor and he would let us go when there're nothing else to do." "If I was not released, I could not have gone away." "Our supervisors made the decision that what time we could go, not us."

5. In that part of the report prepared by the Investigating Committee dealing with the facts established, no mention is made of Mr Cheung's allegations that he was absent because his supervisors had allowed him to leave. Dealing with Mr Cheung's explanation, the report says simply that - "He explained that he would leave his workplace when he had finished his work for that day". It is not said that Mr Cheung told the Committee that he was absent with his supervisor's permission. In its recommendation, the Committee says - "Mr Cheung's case of misconduct with similar offences repeated over a long period of time has reflected poorly on the aspect of supervision and management of staff in the office. Improvement on the system of attendance control and supervision is required."

6. In an affirmation by the Chairman of the Committee, it is said - "Since the Applicant had admitted that he had been absent from duty without leave or permission, further examination as to whether the supervisors had any knowledge about the workman's leaving their office early and whether they know how the attendance book was signed was not necessary to establish the charges."

7. The report says that the Committee "has found that Mr Cheung ... is guilty of all the offences ..."

8. The officer who imposed the punishment on Mr Cheung, Ms Fanny Law, says that Mr Cheung's case was referred to her for the award of punishment as a result of the Investigating Committee finding him guilty of all charges. If Ms Law was of the opinion that Mr Cheung was guilty of misconduct, she had the power to inflict punishment. She says she had the Committee's report and the record of the proceedings, including the documents produced. She perused these carefully. She say she was satisfied that the Committee made a proper finding. She says that Mr Cheung admitted he was absent from duty without prior permission and said that he was very sorry for his conduct. "However, in his evidence, he attempted to put the blame onto his supervisors for permitting his unofficial time-off when he they finished work of the day to explain for the occasions of early departure from duty, which I do not accept." This, she seems to say, led her to take the view that Mr Cheung was not totally remorseful for his misconduct and his irresponsible attitude towards attendance and punctuality would inevitably create problems to the management if he were to remain in the service.

The Proceedings against Mr Au

9. The report of the Investigating Committee into Mr Au's case recorded that he pleaded guilty to all charges, that no "prosecution" witnesses were called, that Mr Au did not tender any "defence" witnesses, and that, because the "accused" had admitted all charges, no documentary evidence or exhibits were adduced. It was recorded that Mr Au entered a plea of not guilty "but upon having a better understanding of the nature and purpose of the hearing, reverted his plea and admitted the charges". Recording "mitigation", the report says that Mr Au "stated that it was a common practice in Squatter Control Units for supervisors to 'sanction' unofficial time-off to 'recompense' workers on the teams as gesture of appreciation for the hazardous and taxing nature of the latter's duties." The Committee commented that these were "but empty statements by the accused attempting to put the blame on others. The charges themselves are on points of facts which the accused admitted. The Committee does not feel that the accused deserves lenient treatment, though the point he raised regarding the prevalent nature of 'unofficial time-off' in Squatter Control Units warrants critical examination, if this is not already the case." The Committee recorded that "As the accused pleaded guilty to the charges, the Investigating Committee finds that [Mr Au] is guilty ...".

10. Ms Fanny Law, in her affidavit, says much the same thing as she said about Mr Cheung's case. In respect of Mr Au's claim that he was allowed the time-off, Ms Law says - "He stated that all who worked in the squatter control section knew that the government had stipulated clearly that they should work 8 hours a day. Yet, he knowingly violated the government regulation and attempted to put the blame onto his supervisors for permitting his unofficial time-off. In the circumstances, I formed the view that the Applicant was not totally remorseful of his misconduct." This time, she does not say that she does not accept that he was permitted the time-off by his supervisors, although, having regard to the fact that she considered Mr Cheung's and Mr Au's cases on the same day, and there was no reason not to accept the statement of one and to accept the statement of the other, it would seem that she did not accept Mr Au's statement either.

11. The record of the proceedings concerning Mr Au show that Mr Au was having difficulty understanding the proceedings. The charges were read to him. He said, quite clearly, that the "illicit holidays" were given to him by the Housing Officer. He repeated this. In spite of this, the Chairman asked if he admitted that he was absent from duty without leave or permission. He said - "Yes, that's right." He was then asked - "You don't admit this charge", referring to the charge of making false entries in the attendance book. He said - "Yes, that's right.". At one stage, Mr Au said that he wanted to ask the Assisting Officer whether she was familiar with the operation of the Squatter Control Unit. He then said - "Our absence from duty was related to something wrong in the attendance book. Why we were absent but could still sign on the attendance book? Our team leader and our Housing Officer should have known about this. It was because those were our off-duty hours or illicit holidays given by the Housing Officer and so we could sign on the attendance book the next day." This was a point of some interest because it appears that the pages of the attendance book on which it is said both Mr Au and Mr Cheung made false entries are countersigned by someone, presumably to confirm their accuracy. This countersigner describes himself as "HO", meaning, I think, "Housing Officer". But the Chairman's reaction to this statement by Mr Au was - "I think we shouldn't complicate the matter." He suggested that Mr Au should ask the Assistant Housing Officer about the internal arrangements of the unit. Mr Au then said - "I understand but I do not want to waste your time. I have explained already and I admit the charges. I don't want to waste time." Very properly, the Chairman sought then to discourage Mr Au from admitting the charges to save time. At this stage, he observed that Mr Au seemed confused. He asked Mr Au if he wanted an adjournment. Mr Au then said - "I want to ask the Chairman that if I admit the charges, will the Housing Department conduct an investigation to find out the truth and then decide on the fate of the staff." The Chairman, in essence, said that this was not the business of the Committee, that they could not decide his punishment - "But your explanation of the background and your statement will be recorded and will be taken into account by the authority when awarding punishment." This seemed to satisfy Mr Au; he said - "I now understand what you have said and so I admit to the two charges." The Chairman then sought to ascertain if Mr Au wanted to make a statement in mitigation. The Chairman said that he had read Mr Au's written explanation, in which he said, amongst other things, that he was absent because he had been given holidays when not required for duty. Mr Au said he did not wish to add to this. The Chairman said that the Committee would consider the letter.

The Nature of the Proceedings

12. The disciplinary hearings were conducted under Colonial Regulation 57, the Disciplinary Proceedings (Colonial Regulations) Regulations (the Disciplinary Regulations), and directions by the Governor made under those regulations.

13. Colonial Regulation 57 makes it clear that the disciplinary hearing is to take the form of an investigation into the officer's conduct. If, after the investigation, the Governor (or his delegate) is of the opinion that the officer has been guilty of misconduct, he may inflict such punishment as may seem to him to be just.

14. The Disciplinary Regulations require the Investigating Committee to make a report containing a record of the proceedings, findings of fact and an opinion as to whether or not the facts amount to misconduct. The Committee "may enquire into any matter and admit and take into account any evidence or information which the ... Committee considers relevant, and shall not bound by any rules of evidence." The regulations emphasise "that the Investigating ... Committee is not exercising a legal function, but rather ascertaining the facts." The Governor ( or his delegate) may, after considering the report, require the Committee to make further investigations, to answer questions and ascertain facts.

15. The directions set out the procedure to be adopted by the Investigating Committee. The directions provide that - "It is the function of the Committee to examine the charge and all the circumstances surrounding it thoroughly". For this purpose, the Committee may question the officer, any witness and the assisting officer, may call any witnesses, require the production of any documents and may adjourn the investigation. Without prejudice to the power of the Committee to question the officer at any time, the Committee may ask the officer if he admits particular facts. Evidence is not taken on oath. The directions tell the Committee not to inform the officer of the contents of its report.

16. It is clear, therefore, that the Committee conducts an investigation; its function is not a legal one such as deciding an issue between a prosecutor and a defendant. Its job is to find facts, not to return a verdict. The Committee may question the officer concerned. The assisting officer is not a prosecutor; the directions say he is there to assist the Committee.

17. It is clear to me that the procedure is designed to be inquisitorial, rather than adversarial.

18. It should be recognised that, essentially, an officer is being "tried" by his superiors in the same service. As is clear from the attitude of the two applicants in these cases, a junior officer appearing before such a Committee will be anxious not to appear troublesome because he does not want this to blight his career. This appears most obviously from the attitude of Mr Au who, caught in the dilemma of not wanting to be thought difficult, but anxious to have his case properly considered, said - "I want to ask the Chairman that if I admit the charges, will the Housing Department conduct an investigation to find out the truth and then decide on the fate of the staff." When he thought he had be reassured about this, he admitted the charges. This is why, I venture to suggest, that the Committee is required to investigate, not only the charge, but all the circumstances surrounding it thoroughly.

19. Of course it is so that the Committee cannot be expected to investigate matters that do not come to its attention, but when something obviously relevant is raised, they must investigate it; they must not expect an officer, especially an uneducated, unrepresented very junior officer, to adduce all the relevant evidence, particularly if this would involve him calling and examining his own superior officers on sensitive matters, and, if he does not do this, the Committee must not shrug its shoulders and ignore the point when finding the facts.

The Position of the Applicants

20. The situation we have, then, is that both Mr Cheung and Mr Au raised matters directly relating to the charges. These were not fanciful points; it is clear that they had a solid basis in fact. The question of whether or not the applicants had permission from their superior officers to be absent from duty, and whether or not their superiors knew that they made false entries in the attendance book were important matters on which it was essential to find the facts. Both Committees recognised the fact that these matters warranted investigation, but they seemed to have assumed that it was not for them to do so. That is not right. If what these men said is true, it is inconceivable that this would not have had a strong bearing on, if not their culpability, at least the question of punishment. These allegations were most certainly "circumstances surrounding" the charges that the Committee was expressly instructed to investigate. Not only did the Committees not do this, and were not told to do this by the Governor's delegate, but the fact that the applicants made the allegations at all was treated as an aggravating circumstance. If they are true, they are not aggravating; they are obviously strongly mitigating. This is precisely the sort of attitude that a junior officer has cause to fear in this sort of disciplinary proceeding, and against which those administering the system should take great care to guard. An officer should not be punished for raising valid arguments, even if they involve unpleasant allegations against his superiors, unless it is found, after thorough investigation, that they are mischievous. Even if it is so that the permission given by the officers' superiors could not be regarded as "permission" as contemplated by the charge, at least the fact that they were given such permission and were allowed to make entries in the attendance book that were false to the knowledge of those who read them would be highly relevant to mitigate the punishment that should be imposed. Ms Law seems to have rejected their claims when there could have been, without proper investigation, no basis at all for doing so. It is quite clear that this sort of conduct was widespread in the department. In all probability, it could not have been going on without the superiors of the officers knowing about it. These officers were workmen, which, I think, is just about the lowest rank in the public service. They are not officers who are left to their own devices; they are supervised. It seems highly unlikely that they could have been absent from duty for any significant length of time without their superiors knowing about it. If it is so that what these men say is true; that it was the practice of their superiors in the department to allow them to go when there was no work for them to do, and that, when they returned, they made entries in the attendance book saying that were on duty when they were not, and this was done with the knowledge of their superiors, this must be at least highly mitigatory.

21. One might be forgiven for thinking that, faced with this situation, which Ms Watson described rightly as "appalling", the thing to do would be to investigate the rot from the top, stamp out the evil practices, discipline those responsible for allowing it to happen, and warn the others that the old ways would no longer be tolerated. If scapegoats were to be found, reasonably one should look higher up the tree than lowly workmen. One might fairly ask, if what is alleged is true, what was expected of humble workmen at the bottom of the pile who were told by their superiors that, the work for the day having been completed, they could go. Was it really expected that they should say - "No; I know my duty if you do not. Although there is nothing for me to do, I will sit here until it is the proper time to go home"?

The Result

22. In the result, I find that the proceedings against both applicants were improperly conducted for the reasons I have given. 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. The findings of the Committees and the decision of Governor's delegate are quashed. The applicants are entitled to their costs, and I so order.

(J.K. Findlay)

Judge of the High Court