MOHAMMED YAQUB KHAN v. ATTORNEY GENERAL

Headnote

Khan v. Attorney General

Unlawful dismissal from public office - court's discretion to grant a declaration - circumstances to be taken into account. Terms of declaration when granted.

Damages for loss of office. Claim for damages for social discredit, depression and loss of reputation rejected.

[1980, No. A329]

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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10 May. Mortimer J. Turning to my judgment in this matter I deal first with some of the salient facts and the background appreciating that I am repeating some which appear in my earlier judgment.

2. The plaintiff became a special constable in 1952. His father was one before him. He was following the family tradition of service to the Crown. The special constabulary later became the Auxiliary Police Force.

3. In January 1963 Mr. Khan was promoted to Inspector after 15 years unblemished service. In 1967 he was awarded the Colonial Police Long Service Medal and the following year he was promoted to Assistant Superintendent; a Gazetted Officer rank.

4. In April 1970, he was placed on the reserve of Gazetted Officers. During the time he was on the reserve, the rank of Assistant Superintendent was abolished and he became a Superintendent. He remained on reserve until 1975; longer than the regulations permit. This was the subject of complaints from him. At the end of that period, he was posted to POL/MIL, Hong Kong Island.

5. As I have already described in my earlier judgment reported in [1986] HKLR, 412 at 414 this service involved him in considerable inconvenience. There had been both before and during the time of that service attempts to persuade him to resign but those attempts failed. The history of Mr. Khan's service after 1975 is punctuated by complaints on both sides. See for example the letter of 24th January 1977 to his Excellency the Governor, and the "drug ring" incident about which I said in my earlier judgment that the allegations against Mr. Khan may not have been justified.

6. In October 1976 allegations were made against him of irregular pay claims. He was interviewed. He vigorously denied any wrong-doing. Although the record of the interivew is disputed I have only heard Mr. Khan gave evidence on this matter. When he made his explanation in writing on 25th October 1976 he reported other officers for raising similar claims.

7. These matters were taken no further and significantly, on 1st April 1977, he was appointed Auxiliary Divisional Superintendent in Wong Tai Sin. By population and area, this was the largest division in the territory. There were some 170 men and women or more under his command. At the time of that appointment, he was entitled to think that earlier complaints and allegations would be put aside and only revived on any future misconduct. He was told this much when he took up the appointment. Unfortunately, at the time when he accepted that appointment he was already in breach of Standing Orders by investigating a loan shark when off duty without the prior approval of the officer to whom he was responsible. I have dealt with this matter already in my earlier judgment at 415(e) to 416(f).

8. It is now known that the loan shark concerned was guilty later of fraud on a massive scale. Whether a more detailed investigation in 1977 at Mr. Khan's instigation would have revealed wrong doing and would have prevented those later offences remains a matter of pure conjecture. It is not relevant to Mr. Khan's behaviour save that it does lend credence to his allegations against that man, who is now serving a very substantial period of imprisonment.

9. Unknown to Mr. Khan, before September 1977 active steps were being taken to recommend his dismissal from the Force. On 10th May 1978, he was handed a letter of dismissal. He was dismissed by His Excellency the Governor under his powers in Section 9(1) of the Royal Hong Kong Auxiliary Police Force Ordinance, Chapter 253. Those powers had been delegated to the then Secretary for Security. No reasons were given and Mr. Khan was not given the opportunity to make any representations before the decision was taken. The Secretary for Security thought that Mr. Khan's office as Auxiliary Superintendent was held at His Excellency's pleasure. He thought that the power to dismiss was unfettered and therefore that no legal purpose could be served by either giving reasons or allowing representations although no doubt other less important purposes could have been served for it would have been at least courteous to allow him to know the reason for hit dismissal after such a length of service.

10. At the earlier hearing, I held that the office was held at the Governor's pleasure. I was wrong. Unknown to me (and I remained uninformed during the hearing) His Excellency's apparently unfettered powers under Sect on 9(1) are limited by the Hong Kong Letters Patent. The relevant part of Article XVI provides:-

"The Governor, may, ..... upon sufficient cause to him appearing dismiss or suspend from the exercise in his office, any person holding any public office within the Colony ....."

The vital words are 'upon sufficient course to him appearing' thosefetter his power. The Letters Patent, define the grant of powers to the Governor by the Crown. Only a fettered power of dismissal is granted. He could not therefore arrogate to himself a greater power under Section 9(1) of the ordinance. The Court of Appeal so decided; see the report of this case; [1986] H.K.L.R. at 972 and 982.

11. The practical effect is that the power could only be exercised upon 'sufficient course being shown' and in accordance with the rules of natural justice. Mr. Khan, therefore, ought at least to have been informed of the contents of the memorandum of the 18th January 1978 recommending his dismissal and ought at least to have been given the opportunity to make representations in answer. See the judgment of the Court of Appeal at 984(g). Immediately after his dismissal, it was Mr. Khan's contention that he should have been given reasons for his dismissal and the opportunity of making representations. Eventually, after many representation were made (see my earlier judgment), he was given reasons but reasons in part only.

12. A letter dated the 5th February 1979, (written after Mr. Khan had petitioned His Excellency the Governor) said:

"The reason for your dismissal is, as previously advised, your general unsuitability to hold office. Two examples which served illustrate the general unsuitability are: (a) your submission of an irregular pay claims which came to light in December 1975; and (b) your pursuit from 1975 onwards of a personal investigation into alleged illegal money lending without the prior approval of the officer to whom you were responsible which was contrary to Police General Order 6/O2, para. 11."

13. This was the first time allegations were made again him in relation to the loan shark incident, and it is to be noted that no further particulars of his general unsuitability to hold office were given. These were just described as two examples.

14. When Mr. Khan was making his representations to the police, the Government and indeed to Her Majesty's Government, it must be said that those representations were considered. But it must be added they were considered against the background that Mr. Khan was thought not to have any right to be heard or to be given reasons for his dismissal.

15. It follows from the Court of Appeal's decision that Mr. Khan's dismissal on 10th May, 1978 was unlawful for the reasons which I have outlined very briefly and which can be found in the judgment of the Court of Appeal. In the light of this, he asks first for declarations to reflect the legal position between the parties. However, a declaration is a discretionary relief and is not granted by the court as of right. Therefore the Court of Appeal remitted this case to me to consider whether or not he should be granted a declaration and if so, in what terms.

16. I turn to consider whether I ought in the circumstances to exercise my discretion to grant him a declaration and if so, in what terms. Usually, the court will not grant declaration in an unlawful dismissal case. It serves no useful purpose. It may involve specific performance of a contract for personal services and damages are usually a full and appropriate remedy. However, where there is unlawful dismissal from a public office (as in this case) much wider considerations apply. Not only do the public have an interest but publicity, even if sought by the dismissed person, may involve humiliation and disgrace. So it may be appropriate for the court to make a declaration setting out the situation between the parties as it is in the eyes of the law. In deciding whether to grant this type of relief I must take into account all the circumstances. In particular it seems to me I must have regard to:

(1) The nature of the unlawful dismissal, its effect upon Mr. Khan and the manner in which the decision was taken;

(2) The nature of the office held by the plaintiff;

(3) The relevant conduct of both parties and in particular whether there was any disgraceful conduct on the part of the plaintiff, so that relief ought to be refused or in other circumstances more readily given;

(4) Whether there has been any unaccountable delay in pursuing the proceedings, amounting to acquiescence or lack of diligence; and

(5) Whether the plaintiff is entitled to other relief which in the circumstances is sufficient.

17. Having considered these matters, it is necessary for me to consider whether any declaration would be just and if so, what declaration would be just. It is of the greatest importance that the court is able to accurately assess the effect and extent of any declaration which is granted.

18. In this regard, see Holfmann-la Roche & Co. v. the Secretary of State for Trade and Industry [1975], A.C. 295, in particular Lord Denning at 320. The Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155 and Ridge v. Baldwin [1964] A.C. 40.

19. It is submitted by Mr. Stock on behalf of the Attorney General that no declaration should be granted in this case on grounds which I summarise: That the illegality of the dismissal was procedural and that if the procedure had been complied with then the result would have been the same. This is conveniently described as the futility argument. Further, that in any event, I should be satisfied that Mr. Khan had no reply of any substance to make to the allegations relating to the loan shark investigation. He reminds me of the way in which I dealt with that in my earlier judgment.

20. He also relies upon the words of Lord Wilberforce, in his speech in Malloch v. Aberdeen Corporation [1971] 1 WLR 1578 at 1595B. I accept this statement of principle.

21. Further, Mr. Stock submits that both before and after dismissal Mr. Khan was informed of matters put against him; that he made his representations; and they were considered and taken into account. (This is a further extension of the futility argument.) Finally, that although he concedes rightly that the court is more ready to grant declarations in this type of case than heretofore, it still does not do so lightly.

22. I turn now to consider the application of the various principles. Here the illegality was procedural. However, I do not accept that the illegality was anything but fundamental. It is not simply a matter of form but is a matter of substance. I do not consider that the case argued against the Attorney General should be considered less seriously because the illegality was procedural. The reasons are these: the police and the Secretary for Security acted at all times on the understanding that no allegations had to be properly substantiated or if necessary investigated, or that both sides had to be heard. This was and remained the background of this dismissal from its outset until after the hearing before me in September 1985. Had those making the decision been aware that the powers they were exercising on behalf of His Excellency the Governor under Section 9(1) were limited, then there is every reason to think that their approach would have been quite different. On this I accept Mr. McCoy's submissions. What course events would have taken had this been understood in my judgment is quite speculative.

23. I find myself, for reasons which I will enlarge upon, unable to accept the futility argument. The matter is so well put by Megarry J. as he then was, in John v Rees [1970] 345 at 402 when he deals with the importance which ought to be attached to the observance of the rules of natural justice. He said this:

"It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice 'when something is obvious,' they may say, 'why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law in strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were combletely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."

24. Those are words which I echo from my own experience in the law a which many others would also echo. It is in my judgment impossible to say that Mr. Khan had no case of substance to advance in relation to the irregular pay claims which were always firmly denied by him. There is no doubt that many earlier complaint which had been made against him coloured opinions against him and those ought to have been consigned into history.

25. As to the loan shark investigation, the only information is from Mr. Khan himself. He substantiates the allegations against himself and I have already expressed my views. However, I am not able to say and indeed, in the circumstances, I must not speculate as to what action the Governor's delegate would have taken had this matter (the loan shark) stood on its own against Mr. Khan. It was never considered on its own and I have no evidence before me from those who were responsible for the decision. The numerous agreed documents which are in front of me are agreed as proper copies of the originals but the truth of the contents is not agreed. Also the right to be heard involves not only the right to answer the allegations, but also the right to mitigate their effect. Mr. Khan has always said that when making the investigations into the loan shark as he was off duty he could make the same investigations which were open to an ordinary citizen without offending against the Standing Orders.

26. In this regard, Lord Hailsham said in Chief Constable of Wales v. Evans [1982] 1 WLR, 1155 at 1160(f):

"It is important to remember in every case that the purpose of the remedies is to ensure that the individual is given fair treatment by the authority to which he had been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law."

27. There may be circumstances (which were in Lord Wilberforce's mind in Malloch's Case) so overwhelming that no decision could be made other than against the plaintiff. That was not the situation in this case as was decided earlier by myself and by the Court of Appeal. In the circumstances, I am not able to say that Mr. Khan had no case of substance to make, or that if given his rights the results would have been the same. There are many disciplinary procedures and punishments apart from dismissal open to the Governor and his delegate.

28. Although this case has taken an astonishing time to reach this stage, it is conceded that no blame can attach to Mr. Khan in this regard. He has never acquiesced in the decision against him nor can it be said that he has beet dilatory. In case there should be any misunderstanding I must say that civil proceedings can normally be brought to trial and conclusion in Hong Kong in a shorter time than in any other common law jurisdiction and that probably means in a shorter time than anywhere else in the world. This case is wholly exceptional in this regard.

29. It follows that it cannot be said that the misconduct admitted by the plaintiff in relation to the loan shark incident, serious though it may have been, was so disgraceful that justice requires that Mr. Khan should not be granted relief, nor on all the evidence can it be said he has suffered no injustice, see Lord Denning in Holfmann-la Roche. On the contrary, it is clear that he has suffered the humiliation of dismissal from public office in an unlawful manner. It was the result of a misunderstanding about the nature of the powers being exercised at a high level. He has battled for years to seek redress upon the manner of his dismissal and indeed the matter has become to him a total obsession. He is now entitled to have the record put straight by an appropriate if limited declaration. He is entitled to damages but damages in themselves are not a sufficient remedy in this case. Especially in respect of this public office where it is conceded that the element of public service was more important than the remuneration involved.

30. As public authorities are concerned, a declaration relating to the nature of their act is appropriate. Of course, there can be no question here of reinstatement. It is not asked for. Even if Mr. Khan had not passed retirement age there could have been no question of reinstatement. For such an order would be a usurpation by the court of His Excellency the Governor's right (and his right alone) on recommendation to appoint Gazetted Officers in this Force. In due course I will hear Counsel about the precise wording of the declaration, but the nature of the declaration will be to declare that his dismissal was unlawful and that Mr. Khan is entitled to the remedies for this unlawful dismissal short of reinstatement. I have in mind the type of declaration that was granted in the Chief Constable of Wales v. Evans. The limited nature of that declaration (appropriately in my judgment) sets the public record straight, is just between the parties, and takes into account the fact of the length of time which has now passed.

31. I turn now to the question of damages.

32. After Mr. Khan was appointed Auxiliary Divisional Superintendent at Wong Tai Sin, he became abnormally keen about his duties. Although it was never the intention that an Auxiliary Gazetted Officer would attend daily or full-time or anything approaching fulltime, Mr. Khan attended almost every day after his appointment until his dismissal. His business, such as it was, was not doing well. He had no other employment and he needed the money. This came to the notice of his superiors. He was spoken to and asked to reduce his hours, but he did not do so. He was never ordered to do this and he continued to be paid for the long hours he attended. A word from a superior would have been enough for most Gazetted Officers, but it was not for Mr. Khan who continued to do full-time. I have heard evidence about the background of those matters. I am satisfied that by the time of Mr. Khan's dismissal, the amount of his attendance was in issue. He refers to it in later correspondence, and I have been shown the minutes of a Senior Officer's meeting held on 2nd May 1978 in which there is what is conceded to be an administrative guideline. It says:

    "In view of the nature of work pertaining to officers of CIPA rank and above, the meeting decided that it was not necessary in normal circumstances for them to carry out more than 60 hours special duty per month. If in exceptional circumstances they were required to perform more than the prescribed limit, prior approval from CSP Auxiliary would have to be sought."

33. In spite of the apparently directional nature of that minute, it did not amount to an order. I am however satisfied, as the matter had been raised before, that one way or another after May 1978, Mr. Khan's attendance hours would have been limited to accord with that administrative guide. He would not have been able to do more than 60 hours per month on a voluntary basis in the normal way. Of course, there may have been exceptions in either direction. In addition, he was required to do his statutory training duties which involved 14 field days, 96 hours of training per year and administrative hours amounting to 10 hours per month in addition to the 60 to which I have referred.

34. Mr. Khan seeks to claim loss of earnings on the basis that he was working full time. For the period after his dismissal this cannot be justified for the reasons I have set out. His loss of earnings therefore in the future for such period as is justified must be limited to 60 hours per month and his statutory training and duty and his administrative hours. I am satisfied, having regard to the history that he would have done such hours as he was permitted.

35. However, certainly by implication, he claims that because of his dismissal he was unable to obtain full time employment after dismissal and he has put in evidence copies of many many letters which he has written applying for jobs. He was unsuccessful save for minor employment. He blames the police for interfering in employment which he either took or could have taken. He relies upon the fact that he had to disclose that he had been dismissed from this part-time office. I am quite sure that it is his genuine belief that those matters prevented him from obtaining employment. But I think having seen him give evidence, that his obsession with this case has led to that belief and I am not persuaded that these are the reasons for him not being able to obtain employment. Mr. Khan has not demonstrated any satisfactory business or employment outside the Auxiliary Force over recent years. His failure in obtaining employment, I find, was not caused by his dismissal from this part-time service.

36. It follows that any claim for earnings on this basis fails. Further his claim for $2,000 for photo copying and travel in attempting to obtain work also fails. It fails on this ground and also for lack of particularity.

37. A further claim which he makes is for $2,121.44 which it seems he paid over in lieu of returning certain items of uniform or service equipment. There was some dispute, the details of which I have not been told. There is no doubt that the uniform and service equipment belonged to the Crown. He was undoubtedly accountable for those. There is no basis upon which I can find, on the evidence before me, that he is entitled to the return of that sum and I rejected it.

38. Additionally, as a result of his dismissal, he contends that he should have damages - $250,000 were suggested - for social discredit, depression, frustration and lost of reputation. Whereas his depth of feeling and his distress on his dismissal cannot be doubted these matters do not sound in damages in this case. As to loss of reputation, there is no pleaded claim for defamation and this must fail on this ground alone. The issues arising in such an action are very different from those which arise here, and at this stage such a claim cannot be entertained.

39. The other matters, similarily, cannot sound in damages in an unlawful dismissal from office action. See Addes v. Grammophone Co. Ltd. [1909] A.C.489, and British Guiana Credit Corporation v. De Silva [1965] 1 WLR 248.

40. In Cox v. Phillips Industries Ltd. [1976] 1 WLR 638, damages for mental distress were awarded. This was a case, however, decided upon its special facts, and the damages were awarded for breaches by an employer in the course of the employment contract and during its continuance not damages (so far as relevant matters were concerned) for unlawful dismissal. Further the 'holiday' cases do not assist the plaintiff here. For the 'holiday' cases involve breaches of contract where the provision of comfort and enjoyment is in the contemplation of the parties and there are breaches in respect of those matters. This is quite a different situation.

41. I turn then to the question of quantum of damages in relation to the part-time post. What damages is the plaintiff entitled to on the basis that he would have continued his part-time post attending his 60 hours voluntary duty per month together with the administration hours and his training?

42. It has been conceded by the Attorney General - in my judgment quite properly in relation to the particular facts of this case that mitigation of damage so far as Mr. Khan is concerned at his age and at his stage of service would not be appropriate. It should not be assumed that the method of assessment in any other case therefore would follow this case. It follows from this concession that whatever employment Mr. Khan ought reasonably to have obtained between the time of his dismissal and the time when he would normally have retired he would have been able always to complete his part-time attendance with the Auxiliary Police Force. Therefore (unusually in this type of case) the concession involves a calculation of damages on this basis from the time of his dismissal until the time when he would have retired.

43. I mention that matter because prima facie the measure of damages to which the plaintiff is entitled is the amount which he would have earned had he continued in office subject to a reduction in respect of any other employment that he obtained in minimizing the damages, or that he should reasonably have obtained. Why I say the concession made is in my view proper is that it would have been enormously difficult for Mr. Khan to have obtained similar employment. Whereas no doubt he could have found some menial part-time task it could hardly be said that it would be reasonable for an Auxiliary Superintendent to replace his office with such a task. Therefore, the damages in this case are to be assessed on the basis that I have indicated. Having said that I will invite Counsel to assist me upon the actual figures. Mr. McCoy: My Lord, it is understood we can agree figures between Counsel if your Lordship can give us indulgence of say ten minutes.

Court-adjourns.

Court resumes for further submissions by Counsel upon the terms of the Declaration. After hearing submissions:

Judge: Shall I declare the terms of the declaration I propose? I will not say finally this will be the declaration. I shall certainly hear Counsel and if necessary allow time for thought. The declaration which I propose is this:

    "A declaration that the plaintiff's dismissal from the Royal Hong Kong Auxiliary Police Force and from his appointment as a Gazetted Officer in the rank of Superintendent Auxiliary of the Royal Hong Kong Auxiliary Police Force by letter dated 10th May 1978 and signed by R.L. Redpath, Chief Superintendent of Police for the Commissioner of Police is illegal and that the plaintiff is entitled to those rights and remedies other than reinstatement as he would have had had he not been unlawfully dismissed."

44. In fact, I would prefer Counsel to have a short time to consider those words because of their importance and so I suggest that I rise and you consider them between now and perhaps 2.30 p.m. unless there is any other suggestion.

45. Now, can we leave that. The next question is damages. McCoy: My Lord, we have been able to agree a precise figure which takes them to account one or two modest matters that were not part of the evidence but nevertheless have been felt necessary.

The total damages agreed, and I have not broken it down to various parts, is $269,872.36. In addition, my Lord, the plaintiff asks to amend the statement of the claim to claim pre-judgment interest on this. I understand this is not opposed by my learned friends. We have been able to agree a pre-judgment interest figure of 8% which would run from the issue of the writ until the date of judgment and Counsel between themselves can calculate the interest, My Lord, it is a tedious matter because it must be calculated as each payment would have been made rather than 8% over each year. We can agree that and we could draft a written minute to your Lordship.

There followed further submissions by Counsel on the basis of the calculation of interest.

Court adjourns.

2.30 p.m. Court resumes. Further submissions by Counsel upon the Declaration.

Judge: Any discretion which is exercised by a police officer or others in relation to Mr. Khan, I certainly do not wish to interfere with in any way whatsoever. The declaration which I am going to make is therefore as follows - he should have a declaration that the plaintiff's dismissal from the Hong Kong Police Force and from his appointment as a Gazetted Officer in the rank of Superintendent Auxiliary of the Royal Hong Kong Police Force by letter dated the 10th May 1978 and signed by R.L. Redpath, Chief Superintendent of the Police for the Commissioner of Police, is illegal and that the plaintiff is entitled to those rights and remedies other than reinstatement as a person unlawfully dismissed.

46. I turn now to damages. There will be judgment of the plaintiff in the sum of $269,872.36. I give leave to the plaintiff to claim interest without objection by the defendant and I give him leave to claim that interest without amendment to the pleadings. Interest will be awarded on that sum between 17th January 1980 and the 17th September 1985 at 4% and from the 17th September 1985 to date at 8%. The plaintiff will have the costs of this hearing against the defendant on a party and party basis and there will be a taxation of the plaintiff's costs for legal aid purposes. Anything further?

McCoy: My Lord, my learned friend wishes to make it clear that the sum agreed between the parties includes an adjustment as a result of information obtained today. I do not think its a matter for my Lord.

Judge: No, I will make it clear so that there is no doubt about it. The sum which I have awarded is a sum agreed between Counsel. It takes into account certain matters which were not ventilated in evidence. Perhaps in those circumstances you will draw up that judgment and submit it.