TANG MEI LING JENNY v. THE COMMISSIONER OF POLICE

HCAL 85/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 85 OF 2004

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J U D G M E N T

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Introduction

1. In this application for judicial review, the applicant seeks to quash a decision of the respondent, the Commissioner of Police, ordering her compulsory retirement from the public service.  The order was made on the basis of the applicant’s misconduct.  That misconduct essentially consisted of a long course of persistent – even defiant – tardiness in arriving at work.

2. The applicant is unable to deny the substance of her misconduct as a public employee; that is, as a person employed by the public to efficiently discharge a set of responsibilities.  Nevertheless, it is her case that the procedures employed to bring about her removal were vitiated by unlawfulness and unfairness and that the decision itself to order her retirement, while no doubt to be expected in the private sector, was, within the public sector, a decision so unreasonable that no reasonable decision-maker could have reached it.  The second challenge, in my view, is a bold one.  The iron rice bowl, while sturdy, is not entirely indestructible.

3. In 1988, the applicant joined the civil service as a personal secretary.  She worked as a civilian officer in the Hong Kong Police.  In March 2002, she was posted to the Small Boat Division at the Government Dockyard on Stonecutter’s Island where she worked as the private secretary of the Divisional Commander.

4. Having received two formal warnings earlier in her public service career that she must get to work on time, the applicant was accused of being late in getting to work at the Small Boat Division.  She was interviewed on this matter at least twice within the first five months of her posting.  Her habit of being late –normally by only a few minutes but sometimes by up to half an hour or more – continued and this eventually led to disciplinary proceedings being taken against her.  In the final analysis, those proceedings found that she had been late for work on 49 occasions after she had received warnings.  The proceedings also determined that on two occasions she had falsified the attendance register to make it look as if she had arrived on time.

5. It is to be noted that the matters in respect of which the applicant was found culpable were based on her own admissions.

6. By letter dated 31 March 2004, the applicant was informed that her Head of Department, the Commissioner of Police, had directed that she be compulsory retired.  It is the decision contained in this letter which is the decision challenged.

7. When the applicant first instituted these proceedings, she appeared without the benefit of counsel.  Prior to the substantive hearing, however, she obtained legal representation.  In the result, her papers were substantially amended.  I allowed the amendments.

8. In her amended papers, the applicant seeks to quash the Commissioner’s decision on a number of grounds, among them procedural impropriety and the failure to take into account relevant material or the taking into account of irrelevant material.  As I have said, the applicant also seeks a declaration that the decision to order her compulsory retirement was a decision so harsh, unfair and arbitrary that no reasonable decision-maker could have made it.

9. I will examine the individual challenges a little later in this judgment.  First, however, it is necessary – in more detail than I would normally wish – to consider the process through which the applicant came to be removed from her employment.  This is necessary because it is the lawfulness of various aspects of the process adopted in respect of the applicant which are challenged.

Background

10. On 3 June 1999 and 31 October 2001, while employed as a secretary by the Police Force, the applicant received written warnings for a failure to be punctual.  Written warnings, I understand, are not trivial matters.

11. The applicant commenced working at the Small Boat Division in early March 2002.  At about the time of her arrival, a scheme was put in place in terms of which all civilian staff (including personal secretaries) were required to sign an attendance register when they arrived at work.  The register was placed on a desk inside the guardroom at the entrance gates.

12. Shortly after the applicant commenced work at the Small Boat Division, she was warned by the Divisional Commander, to whom she was directly responsible, that she must be punctual.  The applicant admitted receiving warnings to this effect on 20 June and 5 July 2002.

13. A few days later, on 10 July 2002, the applicant was again late for work and falsified the attendance register in an attempt to show that she had arrived some half hour earlier.  The following day, she was again late and again falsified the register.

14. On 11 July 2002, the applicant received a formal written warning in respect of her misconduct.  In part, the letter said :

“[The applicant] has previously been verbally advised about her time keeping.  She is now advised again that she must comply with her duty hours.  She is advised that the making of false entries casts serious doubts upon her integrity and suitability to remain in post and that any further occurrences within the period of validity of this written warning will result in formal disciplinary action being instituted.”  [my emphasis]

15. The letter then stated the formal terms of a warning :

“	You are hereby warned that-
	(a)	any similar misconduct by you; or
	(b)	any other misconduct by you which warrants the issue of a verbal/written warning, within one year of the date of this warning will be considered for formal disciplinary proceedings.”

16. From that time onwards, therefore, the applicant could have been under no misunderstanding as to the importance – in the eyes of her superiors – of ensuring that she was punctual.

17. By letter dated 24 July 2002, the applicant responded to the formal warning.  In that letter she said that, as staff in the Small Boat Division were able to work staggered hours, she did not consider that punctuality was of ‘prime importance’.  She asserted that in any event she compensated for arriving late by working late and not claiming overtime.  As to the false entries made by her in the attendance register, she wrote that she had been :

“… singled out for such trivial matters which have finally been magnified as ‘false entries’ casting ‘serious doubts upon my integrity and suitability to remain in post’.”

18. Less than a month later, by letter dated 20 August 2002, the applicant was informed that the Commissioner was considering whether to order a formal inquiry into the applicant’s conduct in accordance with the provisions of the Public Service (Administration) Order (‘the Order’).  The applicant made written representations to the effect that no formal inquiry was warranted.  On 12 December 2002, it being alleged that the applicant was continuing to be guilty of misconduct, she was informed that the Commissioner was considering an expanded inquiry.  She again submitted representations to the effect that an inquiry was not warranted.

19. By letter dated 9 April 2003, the applicant was informed that the inquiry would now proceed.  The letter was sent by the Secretariat on Civil Service Discipline (‘the Secretariat’) and began —

“In exercise of the authority delegated by the Chief Executive, the Commissioner of Police has decided that a formal disciplinary inquiry under section 10 of the Public Service (Administration) Order, copy attached, should be conducted into your alleged misconduct.”

20. Pursuant to art.48(4) of the Basic Law, the Chief Executive has the power to issue executive orders.  The Order is an executive order.

21. In terms of s.19 of the Order, the Chief Executive may delegate certain of his powers and duties.  It is not disputed that, pursuant to s.19, the Commissioner was at all times acting under lawfully delegated authority.

22. In terms of s.10 of the Order, the Commissioner may cause an inquiry to be conducted if he is of the view that the alleged misconduct of a public servant is sufficiently serious to warrant dismissal or compulsory retirement.  In so far as it is relevant, s.10 reads :

“	(1)	If it is represented to the Chief Executive that an officer has been guilty of misconduct, and the Chief Executive is of the opinion that the misconduct alleged may be serious enough to warrant the dismissal or compulsory retirement of the officer, he may cause an inquiry to be made into the officer’s conduct in such manner as may be prescribed by regulations made by the Chief Executive under section 21(2).
	(2)	If after such inquiry the Chief Executive is of the 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.”

23. Knowing that the disciplinary proceedings were being conducted in terms of s.10 of the Order, the applicant would (or should) have known that her alleged misconduct was viewed seriously and could result in her removal from the public service.

24. The inquiry into the applicant’s alleged misconduct took place over three days in May 2003.  The Inquiry Committee consisted of two civil servants.

25. The applicant was charged with two courses of misconduct.  Charge A alleged numerous occasions of being late for work, well over 100.  Charge B alleged a number of occasions on which she had falsified the attendance register.

26. On 27 May 2003, the Inquiry Committee published its report, presenting it to the Secretariat.

27. According to the affirmation of Ms Ida Liaw (dated 24 May 2005), a Senior Executive Officer in the Personnel and Appointments Section of Police Headquarters, the Secretariat passed on the report to the Commissioner in mid-July 2003.  The Commissioner then sought advice in respect of a “number of matters and findings” in the report.  In the result, said Ms Liaw, the Commissioner, “having carefully considered the report” in the light of the advice received, “decided to set aside the findings” of the Inquiry Committee in respect of a substantial number of matters.  As a result, “the applicant was found guilty of misconduct under charge A on 49 occasions [of being late for work] and of misconduct under charge B on two occasions [of falsifying the attendance register] based on her own admissions at the hearing”.

28. The 49 occasions of being late for work took place between 10 July and 19 November 2002.  The two acts of falsification of the register took place on 10 and 11 July, each entry indicating an arrival at work some 30 minutes earlier than was the case.

29. In a letter from the Secretariat dated 5 December 2003, the applicant was informed in detail of the extent of the Committee’s findings against her and was also informed that the ‘disciplinary authority’ had decided to set aside a substantial number of those findings.

30. The letter of 5 December 2003 does not explain who exactly is the ‘disciplinary authority’.  However, in his affirmation of 24 May 2005, Mr Kwok Wing On, a Chief Executive Officer in the Secretariat, explained that it is the public officer – invariably a head of department – who takes on the delegated authority of the Chief Executive in respect of disciplinary proceedings conducted in terms of the Order.  In the present case, therefore, the ‘disciplinary authority’ was the Commissioner.

31. Culpability having been established, the applicant was advised as follows :

“It is now necessary to consider the punishment to be imposed in respect of the misconduct in paragraph 1 above of which you have been found guilty and in this regard your attention is drawn to section 2 of the Public Service (Administration) Order, copy attached.  Having regard to the nature and gravity of your proven misconduct, the punishment under consideration may result in your removal from the service.  Before any decision is reached, or recommendation made, as to the appropriate level of punishment, you are invited to make representations which you wish to be considered.  Your representations should be confined to the issue of punishment.”  [my emphasis]

32. In terms of s.2 of the Order, ‘punishment’ includes —

“… dismissal, compulsory retirement with pension, gratuity or other allowances or, without such benefits or with reduced benefits, fine, reduction in rank, severe reprimand, reprimand, stoppage or deferment of increments and reduction in salary.”

33. Again, therefore, the applicant would (or should) have known that her misconduct was viewed seriously, sufficiently seriously to perhaps warrant her removal from service.

34. In a letter dated 29 December 2003, the applicant submitted lengthy representations in mitigation.  She accepted that she had frequently been late for work and that this had soured her working relationship with her superior, the Divisional Commander.  However, she qualified this by saying :

(a)	that she normally remained late and never claimed overtime allowances;
(b)	that flexible working hours were the pattern of things when she joined the Small Boat Division;
(c)	that in any event, when her lack of punctuality was analysed, it showed that, between July and November 2002, the 49 occasions on which she had been late averaged only 8.6 minutes;
(d)	that in respect of the two false entries in the register, she had admitted these immediately and had not made them with any intent “to claim any monetary advantage or to gain for myself”.

35. In making her representations, the applicant admitted that staying late at work did not excuse her failure to be punctual in coming to work.  She said that she regretted her actions and asked for the opportunity to continue serving.

36. In a memorandum dated 12 February 2004 addressed to the Commissioner, the Secretariat invited him to consider an appropriate punishment.  During the course of submissions before me, much was said of the memorandum.  It therefore requires scrutiny.

37. The memorandum set out the earlier history of the matter and, in respect of the disciplinary proceedings themselves, said the following :

“The Inquiry Committee found [the applicant] guilty of unauthorized absence on 66 occasions under charge (a) and making false entries on attendance register on 17 occasions under charge (b).  The Commissioner of Police has accepted the inquiry reports, but on the advice of the Department of Justice, has set aside the findings of guilt in respect of 17 occasions under charge (a) and 15 occasions under charge (b).  [The applicant] should therefore be punished for unauthorized absence on 49 occasions … totalling 423 minutes (about 7 hours) under charge (a) and falsifying attendance records on two occasions … under charge (b).”  [my emphasis]

38. In respect of the applicant’s representations in mitigation, the Secretariat submitted a summary and annexed the representations to the memorandum.  The full representations therefore were available for the Commissioner to consider.

39. To assist the Commissioner in determining an appropriate punishment, the Secretariat identified four ‘precedent cases’ and gave details of them.  The cases, it was suggested, were similar in many respects to the applicant’s case.

40. In respect of the second two precedent cases, the following was said :

“[The applicant’s] case is comparable … in that the officers were found guilty of unauthorized absence on repeated occasions for an aggregate period of seven to eight hours despite repeated counselling, advance and warnings.  Upon closer scrutiny, [the applicant’s] case is however considered more serious in that she has gone further as to falsify attendance record on two occasions.  In addition, [the applicant] is totally unremorseful (not only has she not improved since formal disciplinary proceedings were instituted against her, she has been late for duty even more frequently i.e. 150 occasions in a one year period).  Unlike [the applicant], the officers were remorseful and their attendance had improved since the disciplinary hearing.  [The applicant] has a more blemished disciplinary record …”  [my emphasis]

41. The Secretariat then made its own comments, inter alia —

“The applicant] had been given repeated counselling and ample opportunities to rectify her unpunctuality.  She was issued a written warning in June 1999 for unauthorized absence and falsifying attendance records.  She was issued another written warning in October 2001 for unauthorized absence on 29 occasions.  She had been counselled three times and was cautioned only 20 days before the present misconduct of the possibility of facing disciplinary action if she failed to improve her punctuality, attitude and performance.  However, she failed to take heed of all the advice and warnings and continued to be late.  She committed the present misconduct during the validity period of the last written warning for unpunctuality.  Worse still, even after formal disciplinary action had been instituted against her, [the applicant] continued to be late, on 150 occasions totalling about 24 hours between 20.11.2002 and 8.11.2003.  The department is proposing the institution of further disciplinary action against her.  Given [the applicant is] track record and unremorseful attitude, it appears that there is no prospect of correcting her.  In addition, her acts of falsifying attendance records to cover up her lateness reflects adversely on her integrity.

There is no mitigating factor in [the applicant’s] case. [The applicant] has blemished disciplinary record. She had been issued with four written warnings between 1999 and 2001 for unauthorized absence, falsifying attendance records, rude behaviour, insubordination and dishonesty. She had 15 years of service, but her performance has deteriorated to an unacceptable level in the past four years (overall gradings in ‘E’ or ‘F’ since 1.11.1999).”

42. The Secretariat recommended that the applicant be compulsorily retired.  Whether the Commissioner chose to accept that recommendation was, of course, a matter for him.

43. In conclusion, the Secretariat asked that, after the Commissioner had proposed an appropriate punishment, the Director of General Grades should submit his own comments as to punishment.

44. As to this involvement on the part of the Director of General Grades, in his affirmation of 24 May 2005, Mr Kwok Wing On said :

“There are also safeguards within the Government to ensure the fairness and consistency of the punishment.  For instance, the disciplinary authority [in the present case, the Commissioner] will always take into consideration the views of the Secretariat and the Head of Grade of the officer, and consult the Public Service Commission for officers (such as the Applicant) holding an established office before deciding on the punishment.”

45. By memorandum dated 17 February 2004, the Commissioner answered the Secretariat in respect of appropriate punishment.  The memorandum began :

“Having carefully examined [the applicant’s] case, the Force management has agreed to your recommendation that she should be removed by compulsory retirement.”

The memorandum therefore contained the decision of the Commissioner – made in light of advice – albeit a provisional decision.

46. The memorandum went on to say that the punishment had taken into account “the following factors”.  Those factors were listed under three headings : gravity of the offence, disciplinary and service record and customary level of punishment.  Under those three headings, the wording of the memorandum essentially reflected the substance of the Secretariat’s recommendations.  The memorandum, however, did not itself specifically identify or deal with any of the applicant’s representations in mitigation.

47. The memorandum concluded :

“[The applicant’s] prolonged inability to observe proper time keeping together with the falsification of attendance records leaves us with little confidence that she will reform particularly as repeated advice and warnings in the past have not produced any results.  After balancing all factors, we consider that [the applicant] should be removed by compulsory retirement.”

48. In her affirmation of 24 May 2005, Ms Ida Liaw, a Senior Executive Officer in the Personnel and Appointments Section at Police Headquarters, said the following in respect of the Commissioner’s actions in determining punishment :

“Before the Commissioner decided on the punishment to be imposed on the Applicant … he carefully considered all the circumstances of the case and numerous factors including the written representations made by the Applicant on 29 December 2003 (including letters from the Applicant’s friends pleading for leniency), the gravity of the misconduct, the disciplinary and service record of the Applicant, the mitigating factors and the customary level of punishment.  By a memorandum dated 17 February 2004 (‘the 17 February memo’) from the Commissioner to the Secretariat, the Commissioner informed the Secretariat of his adoption of the recommendation to remove the Applicant by compulsory retirement with deferred pension.”

49. Later in the same affirmation, however, Ms Liaw said the following :

“The Commissioner gave careful and independent consideration to all the facts of the Applicant’s case, including the Applicant’s representations and the views and advice of the Secretariat, before reaching his decision on the punishment to be awarded.  The considerations which the Commissioner took into account are set out in the 17 February memo.”

50. As to the sequence of events, in her affirmation Ms Liaw said that the Public Service Commission approved the Commissioner’s proposed punishment of compulsory retirement and on 25 March 2004 the Secretariat informed the Commissioner of this approval.  In the result, on 29 March 2004 the Commissioner directed that the punishment of compulsory retirement be imposed.

51. By letter dated 31 March 2004, the applicant was informed of the Commissioner’s direction and of the fact that it was to take effect the next day, 1 April 2004.

52. The letter is somewhat unusual in its presentation.  It is signed by a Mrs Choi ‘for Commissioner of Police’ but clearly, in my view, is intended to be read as coming direct from the Commissioner and not through any intermediary.  The letter, for example, starts as follows :

“With reference to the disciplinary inquiry held on 7, 14 and 17 May 2003 and having studied the Inquiry Committee’s Report, I am satisfied that you misconducted yourself …”

It continues :

“While the Inquiry Committee has also found you guilty of the following misconduct, I have decided to set aside such finding-”

53. The letter went on to inform the applicant of her removal in the following terms :

“Having considered the nature and gravity of the misconduct and your position in the service as well as all relevant mitigating circumstances including the representations made in response to the letter of the Secretariat on Civil Service Discipline dated 5 December 2003, the Commissioner of Police, in exercise of the authority delegated to him by the Chief Executive and on the advice of the Public Service Commission, has directed that you be compulsorily retired with effect from 1 April 2004 under section 10 of the Public Service (Administration) Order.  Upon your compulsory retirement, you will be granted a deferred pension …”

54. A month or so later, having already been retired, the applicant wrote to the Commissioner asking him to reconsider his punishment.  She made a number of representations to him.  These included the following statement :

“In fact, I am the only one among the staff (discipline and civilian) who have been singled out for such on unfair treatment.”

55. On 21 May 2004, the applicant received a reply.  This letter was also signed by Mrs Choi ‘for Commissioner of Police’.  In this letter, however, the Commissioner was referred to in the third person and not the first.  The letter read :

“The authority in punishing an officer by compulsory retirement is delegated to the Head of Department personally. The Commissioner is fully aware of the details of your case, and he has taken into account all relevant considerations before imposing the punishment of compulsory retirement.

The Commissioner has examined carefully the points of ‘defence’ you put forward in your letter dated 4 May 2004. He is satisfied that the level of punishment commensurates with the present day standard. The level of punishment is considered appropriate, and he directed that the decision would maintain.”

56. During the course of the hearing, both counsel made reference to this post-retirement correspondence.  Mr Cooney, for the Commissioner, said that it showed that the Commissioner had twice considered his decision and nothing could be achieved, in the context of this case, by remitting it back to him yet again.  Mr Ross, for the applicant, said that the Commissioner was unable to review his decision in the manner he did as, the first decision having been made, he had then become functus.  I did not, however, see any need to take this correspondence into account and, for purposes of my determinations, have not done so.  Whether or not the Commissioner’s decision should be set aside so that it may be reconsidered must, in my view, be substantively determined in the context of the first decision made, that being the determinative one, not with regard to a belated plea to please think again.

First challenge : absence of any finding by the Commissioner that the applicant was guilty of misconduct

57. S.10 of the Order – cited in para.22 of this judgment – gives power to the Commissioner (acting under delegated authority) to direct that an inquiry should be conducted into allegations of serious misconduct on the part of a civil servant.  However, he is not bound by the results of an inquiry.  He may accept the results in whole or in part or reject them in whole or part.  It is for him to make the final decision as to whether there has been misconduct.  In this regard, to repeat it, s.10(2) reads :

“If after such inquiry the Chief Executive is of the 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.”

58. On behalf of the applicant, Mr Ross submitted that there was no indication on the papers that the Commissioner had, in fact, discharged his responsibility of personally coming to the determination that the applicant was guilty of misconduct.  He did not go so far as to say that the Commissioner had failed to discharge his executive responsibility, he limited his submission to the assertion that there was no indication he had.

59. This challenge, in my view, has no substance.

60. By letter dated 5 December 2003, the applicant was informed that she had been found guilty of misconduct.  As I have said earlier – para.29 of this judgment – the letter was a detailed one.  The applicant was informed of the full extent of the findings made against her by the Inquiry Committee.  She was then informed that the ‘disciplinary authority’ had set aside certain of those findings so that in the result – as an entirely logical consequence – she had been found guilty only of those instances of misconduct not set aside by the ‘disciplinary authority’.

61. As I have explained earlier – para.30 of this judgment – the ‘disciplinary authority’ was, in this case, the Commissioner.  If this was not known to the applicant at the time, an inquiry with the Secretariat would have clarified matters for her.

62. Accordingly, on the face of the letter of 5 December 2003 it was stated that the Commissioner had considered the report, setting aside certain of its findings.  That, in my view, is evidence enough that he had formed his own opinion of the extent of the applicant’s misconduct in light of the Inquiry Committee’s report.

63. In addition, of course, Ms Ida Liaw, in her affirmation of 24 May 2005 – referred to in para.27 of this judgment – was able to confirm that the Commissioner had considered the report in the light of advice received and had come to a determination that certain of the Inquiry Committee’s findings should be set aside.

64. In any event, even if it can be said that the letter of 5 December 2003 did not make itself clear, the presumption of regularity acts, in my view, to cure any ambiguity.  In Bhagwandeen v. The Attorney General of Trinidad and Tobago [2004] UKPC 21, 45/2003, the Privy Council described the principle in the following terms :

“The presumption of regularity comes into play in this context when there is no evidence either way whether a public authority or official has taken into account the correct considerations in reaching an administrative decision.  In such case the decider is entitled to the benefit of the presumption of regularity and is not obliged to adduce evidence to establish that he took only the correct factors into account.  In consequence, in the absence of contrary evidence, the application for judicial review will fail.”

65. On the basis of that principle, if there was no evidence either way that the Commissioner had acted under s.10(2) of the Order, the Commissioner was entitled to the benefit of the presumption and was not obliged to adduce evidence that he had done so.

Second challenge : not giving the applicant the last word; the failure to let her comment on the memoranda of 12 and 17 February 2004

66. Having been found guilty of misconduct, the applicant was informed by the Secretariat that, if she wished, she could make representations in mitigation.  She chose to do so.  The representations (contained in her letter of 29 December 2003) were extensive : see para.34 of this judgment.

67. Having submitted her representations, the applicant heard nothing further until she was informed by letter dated 31 March 2004 that she had been compulsorily retired.

68. However, the representations contained in the applicant’s letter of 29 December 2003 did not constitute the last word on the issue of an appropriate punishment that went before the Commissioner.  A lengthy memorandum dated 12 February 2004 was sent by the Secretariat to the Commissioner commenting on the applicant’s representations and raising new issues influencing penalty, issues of which the applicant had no knowledge.  The applicant was not given a copy of the memorandum nor informed of issues raised.  She was therefore denied the opportunity to comment on those issues.

69. Mr Ross emphasised that several of the issues were substantial and must have had an influence on the Commissioner’s decision.  First, said Mr Ross, reference was made in the memorandum to four ‘precedent cases’ – paras.39 and 40 of this judgment – it being suggested that they were similar to the applicant’s case.  Second, he said, it was suggested in the memorandum that, despite the commencement of disciplinary proceedings, the applicant continued to be late for work “on 150 occasions totalling about 24 hours”.  It was further suggested, he said, that the applicant remained unremorseful despite the applicant’s representations contained in her letter of 29 December 2003 that she did in fact regret her actions.

70. In respect of the four precedent cases, it was the applicant’s case that in a number of material respects they could be distinguished from the applicant’s case and she should have been given the opportunity to emphasise the differences.

71. In respect of the continuing conduct of arriving late for work (150 occasions, totalling about 24 hours), this, it was said, was unproven in the sense that it had not been formally proved in the course of disciplinary proceedings.  The punishment under consideration should only have taken into account the misconduct that had been proved by official inquiry.  If the applicant had been able to comment on those 150 occasions, it was said, she may have been able to disprove some and place others in a light more favourable to herself.

72. In respect of the applicant’s alleged lack of remorse, this, it was said, was simply wrong.  The charges of misconduct which formed the basis of the applicant’s punishment were all charges which she had admitted, that itself being a powerful indicator of remorse.  In addition, in her representations, she had expressed regret.

73. The first question, of course, is whether there was any obligation on the Secretariat to disclose the contents of its memorandum to the applicant.

74. In R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 the founding principle was expressed in the following terms by Lord Mustill, at 560F :

“Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.  Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

75. The applicant, a person who had made the public service her career, was facing the termination of her employment.  The issues raised in the Secretariat’s memorandum were issues going to her suitability to continue in employment.  Procedural propriety, in my judgment, dictated that she should have been given an opportunity to comment on those issues.

76. But, as Mr Cooney emphasised, fairness – which is the real issue – is not to be judged in a vacuum.  Fairness is not a technical matter.  There may have been a breach of proper procedure in this case, one that could be described as potentially unfair to the applicant, but was it a breach that in fact produced substantial prejudice to her?

77. In George v. Secretary of State for the Environment [1979] 77 LGR 689, at 695, Lord Denning M.R. stated the principle as follows :

“The question is whether, as a result of any failure in procedure or the like, there was a breach of natural justice … You should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made.”  [my emphasis]

78. In Leung Fuk Wah Oil v. Commissioner of Police [2002] 3 HKC 1, our Court of Appeal confirmed the principle.  The relevant portion of the headnote reads :

“Judicial review was a discretionary remedy.  If the breach of fairness did not produce a substantive prejudice to the applicant, the court was bound to take this into account in deciding whether relief should be given.  In the present case, it was abundantly clear that the disclosure of the previously undisclosed documents to the respondent would not have made the slightest difference to his appeal petition.  Since the respondent did not, as a matter of substance, suffer prejudice, the failure to observe the principle of fairness should not be a ground for quashing the decision.  The discretion in the present case should be exercised against the granting of any relief.”  [my emphasis]

79. The question to be asked therefore is whether the failure to give the applicant the opportunity to comment on the Secretariat’s memorandum of 12 February 2004 produced a substantial prejudice to her.  To put it another way, if the applicant had been given the opportunity to comment, may the punishment imposed by the Commissioner have been a lesser one?  If it is apparent that the disclosure of the memorandum would not have made any difference to the eventual outcome then the applicant cannot complain of substantial prejudice.  In the present case, where the applicant was given an opportunity to submit detailed representations and was therefore able to be heard, substantial prejudice cannot be judged ‘in the air’ and must be judged against the possibility of a different outcome.

80. In respect of the four precedent cases mentioned in the Secretariat’s memorandum, these were in fact analysed in some detail in an annexure to the memorandum.  The analysis was essentially neutral.  It was not slanted against the applicant.  For example, the third case was analysed in the following manner :

“	Rank and salary :	Office Assistant, Master Pay Scale point 6
	Misconduct :	Unauthorized absence on 35 occasions totalling 7 hours and 57 minutes between January 2001 and March 2002
	Punishment :	Severe reprimand and a fine of one increment for twelve months, plus a caution of removal from service in the event of further misconduct
	Considerations taken into account	(a)	the misconduct was serious in nature in view of its repeatedness and frequency;
		(b)	the officer had a blemished record of unpunctuality, and had been given a repeated advice to rectify his bad habit;
		(c)	he committed the current misconduct during the validity period of the verbal warning issued to him in September 2000 for unpunctuality;
		(d)	he continued to be late for duty even after his working hours had been put off for 15 minutes since October 2001;
		(e)	he received a total of four advisory letters for his ‘Moderate/Poor’ reports between February 2001 and April 2002;
		(f)	he was cooperative and remorseful, and his punctuality has been improved since disciplinary hearing; and
		(g)	he was the sole breadwinner of his family.”

81. For the Commissioner, Mr Cooney said that there was, in practice, nothing further that the applicant could say other than to point out the obvious and known differences between the precedent cases and her own case, differences of which the Commissioner was already aware by reason of the analysis to which I have just referred.  In any event said Mr Cooney, the Secretariat’s memorandum did not say that the precedent cases mirrored the applicant’s case, merely that they were similar in certain respects but not in others.  The Commissioner had the applicant’s detailed representations before him.  They accompanied the memorandum.  He could therefore consider the neutral analysis of the precedent cases in the light of the applicant’s representations.

82. There is, I think, substance in Mr Cooney’s submissions.  The precedent cases were placed before the Commissioner not as a form of advocacy aimed at one conclusion but to assist the Commissioner in coming to his decision within the context of previous cases which fell into the same broad area of similarity.  Within that broad area, however, they were distinct from each other in detail and, to a degree, in outcome.  The case to which I have referred, for example, resulted in a severe reprimand not retirement.

83. In the Secretariat’s memorandum it was alleged that, despite disciplinary proceedings, the applicant had persisted in being late for work.  It was said that she had been late on 150 occasions between 20 November 2002 and 8 November 2003, there being approximately 24 lost hours.  Although the applicant was not at the time given any notice of this assertion, in her affirmation of 30 June 2004 she did not deny it.  In respect of her continued lateness, she could only say the following :

“It was said I being late on 150 occasions totalling 24 hours between 20 November 2002 and 8 November 2003 with an average of 9.6 minutes late on each occasion.  Such lateness was compensated by the over-time work carried out by me.  It was unjust and unfair not to consider my responsibility to work over-time without any compensation.”

84. As Mr Cooney, for the Commissioner, put it, the only point she could make was that she compensated for her lateness by staying late at work, working overtime for no extra pay.  But both in her defence on the merits and in mitigation that had always been central to the applicant’s case : see, for example, para.34(a) of this judgment.  

85. During the course of the hearing, Mr Ross said that the 150 days had not been calculated from the date when the applicant had been informed that disciplinary proceedings were being instituted; that is, 9 April 2003, but from several months earlier.  The assertion therefore that the 150 days had come “after formal disciplinary action had been instituted” was plainly wrong.  I am not sure of the exact meaning of the phrase; that is, whether it was intended to have any technical meaning.  But its general meaning and intent is clear enough.  In July 2002, the applicant received a formal warning of contemplated proceedings and in August 2002 a further formal warning of expanded proceedings.  From that time on therefore she was well aware that she was involved in formal proceedings or, at the very least, the threat of formal proceedings.  The 150 days were calculated from 20 November 2002, some three months after the second formal warning.  In the circumstances, I find nothing in this point, certainly nothing of any substance.  The point raised is technical but issues of fairness are not technical.

86. Mr Ross made the point that the applicant had not been formally found guilty of misconduct in respect of these 150 days and they should not therefore have been considered by the Commissioner.  But the applicant has not denied being late on those days.  There is therefore no issue in contention as to whether she was or was not late.  I understand that the Secretariat’s calculations were made on the basis of her own entries in the attendance register.  During the course of the hearing itself I gave the applicant the opportunity to consider her position but there was still no dispute as to the essential accuracy of the assertion made by the Secretariat.

87. In my judgment, it is also entirely misguided to suggest that the continuing actions of an employee in the public service cannot be taken into account – when deciding whether that employee should be allowed to remain in employment – unless those continuing actions are proved by way of some formal procedure.  We are talking about the standards of fairness to be applied when determining the overall culpability of an employee in the discharge of her duties, we are not talking about proof beyond reasonable doubt of specified charges within the rigid evidential framework of the criminal law.

88. As to the issue of remorse, Mr Cooney said, other than another bald assertion that she was remorseful, what in substance could the applicant say?  Yes, she had admitted certain acts of misconduct but had tried to justify them by alleging that there was a ‘flexi-hour’ system in operation at the Small Boat Division, that punctuality was not really important and that, in any event, other employees had been late without being disciplined.  More than that, as he put it, her actions in continuing persistently to be late indicated that clearly there was no remorse.  That submission, in my view, must be essentially correct.

89. During the hearing, the submission was made that the applicant should also have been given the opportunity to see and comment upon the Commissioner’s memorandum of 17 February 2004.  But that memorandum was one in which the Commissioner’s decision was given.  Yes, it was ‘provisional’ at the time but only in the sense that other arms of the public service were to be asked to consider and approve or otherwise comment upon that decision before it was confirmed.  That system of liaison was in place to ensure general fairness in treatment of public servants and therefore to protect the applicant herself.

90. In Leung Fuk Wah Oil v. Commissioner of Police – cited in para.78 of this judgment – Cheung JA, after considering earlier authorities and academic writings, said the following (p.11G) :

“Judicial review is a discretionary remedy.  If the breach of the principle of fairness does not produce a substantial prejudice to [an applicant], the court is bound to take this into account in deciding whether relief should be given.  This is consistent with the concept that the court should not substitute its own decision for that of the decision-maker.”

91. In light of that authority, while, in my judgment, it is clear that the applicant should have been given the opportunity to comment on the Secretariat’s memorandum, and while, because of that failure, the applicant may have suffered some prejudice, I am unable to conclude that the applicant suffered any substantial prejudice.

The alleged failure of the Commissioner to take the applicant’s representations into account

92. The memorandum of 17 February 2004 containing what I have described as the Commissioner’s ‘provisional’ decision did not make reference to the applicant’s representations in mitigation.  That failure, it was said, indicates that the Commissioner failed to take them into account.

93. But, as I have said, the memorandum was an internal document addressed to the Secretariat and copied to the Director of General Grades.  It explained why the Commissioner, acting with the benefit of advice, viewed the applicant’s conduct sufficiently seriously to come to the conclusion that she should be retired.  That was the clear purpose of the memorandum.  It was not intended to be a full judgment as such.

94. In any event, Ms Ida Liaw, in her affirmation of 24 May 2005 – para.48 of this judgment – stated clearly that the Commissioner considered all the circumstances of the case, including the applicant’s representations, before deciding on punishment.  There is therefore no reason to think that the Commissioner, in discharging his executive responsibility under the Order, ignored the applicant’s representations.

Being ‘singled out’

95. In the amended application, the following is alleged : “The applicant has made repeated claims both at the inquiry and to the Commissioner of Police that she had been singled out for special treatment not accorded to others.  From the papers it can be shown that the Commissioner of Police did not take these claims into account”.

96. In her defence before the Inquiry Committee, the applicant alleged that she had been unfairly singled out.  The Committee, in its report, recorded her allegation that it was not fair that —

“… she has been singled out for selective treatment.  All measures have been directed against her.  Divisional management has overlooked the misconduct of other civilian staff with a great degree of leniency but has chosen to be extremely harsh on her.”

97. The allegation of being ‘singled out’ was, of course, founded on the allegation that other staff members had been allowed to come late to work without disciplinary action being taken against them.  It is apparent, however, that the Inquiry Committee found no factual evidence of this.  In its report (para.29), the Committee said :

“[The applicant] represented that her colleagues’ staggered working hours from 0700, 0800 to 0830 hrs had re-inforced her belief that she could follow a ‘flexi-hour arrangement’.  She seems to have taken little note that the other colleagues who work on staggered hours have, as shown in the attendance book, all as a normal routine reported to work before, rather than after, their designated time.”  [my emphasis]

98. In light of this, understandably, the Committee was not prepared to broaden its inquiry to include a general consideration of how other staff members were treated.  In this regard, the Committee said :

“[The applicant] has made strong and repeated representations that other staff … could also have been late for work or absent from duty without permission; and that it is also possible that they have misconducted themselves in a similar or more undisciplined manner.  She queried the alleged overly lenient way in which divisional management has adopted towards them.  She alleged that divisional management has been failing in its management duties whilst at the same time prejudiced against her.  The Committee does not consider this claim relevant insofar as it does not relate to [the applicant’s] work and performance and the circumstances in which [the applicant’s] alleged misconduct took place …”  [my emphasis]

99. It is alleged that the Commissioner should have taken the applicant’s allegations of unfair treatment into account when considering punishment and that his failure to do so was a material failure.  This, however, ignores the fact that in her representations in mitigation the applicant did not ask the Commissioner to take those allegations into account.  How therefore was the Commissioner to know that she was still making them?

100. I am also constrained to say that at no time during the hearing before me was any evidence put forward that the applicant had, in fact, been singled out unfairly.  Of course, when the applicant’s conduct was being investigated, the focus was on her.  But that could not be said in any way to be unfair.  The point I make is that at no time – before the Inquiry Committee or the Commissioner – have I been informed of the applicant putting forward substantive proof of others being as persistently late as herself and yet being exempted from discipline.

The severity of the punishment

101. It is the applicant’s contention that, in all the circumstances, the order of compulsory retirement made by the Commissioner was so severe, so arbitrary, that no reasonable decision-maker could have made that order.

102. There is no substance in this challenge.  It was plainly open to the Commissioner to come to the decision he did.  The applicant was a civilian employee in the Police Force, the force commanded by the Commissioner and it was for him – not this court – to determine on the merits the appropriate level of penalty.  As Godfrey JA (as he then was) expressed it in Tong Pon Wah v. Hong Kong Society of Accountants [1998] 3 HKC 82 :

“Every professional body is entitled to apply its own professional judgment to a case in which one of its members is called on to justify his conduct in (allegedly) failing to observe a standard or guideline laid down by that professional body for the protection of those dealing with members of that professional body.  It is not, in my judgment, for this court to second-guess the professional judgment of a disciplinary committee such as this except where it can be seen that it has plainly misread the evidence and come to a conclusion which is contrary to the evidence or is otherwise plainly wrong.”

103. Previously in her career the applicant had received two formal warnings as to her tardiness.  On arrival at the Small Boat Division she had been twice interviewed for the very same fault.  She had received official warnings and had then been disciplined.  Her tardiness was made worse by proof that on two occasions she had falsified the attendance register.  Despite the disciplinary proceedings, she continued to be persistently late.  Averaging out the lateness may give it a banality but it cannot disguise the fact that it consisted of a continuous course of conduct in the face of demands that it cease.

Conclusion

104. In my judgment, the applicant has had only one complaint of any substance in these proceedings; namely, the failure to allow her to comment upon the Secretariat’s memorandum of 12 February 2004.  In respect of that complaint, however, I have concluded that, while it may have caused some prejudice, it did not cause her any substantial prejudice.

105. The applicant’s other complaints are, in my view, clearly the result of a careful sifting of all the material in a fault-finding exercise, little, if any, regard being had to the primary issue of whether in substance the applicant has been dealt with fairly.  In this regard, the observations of Liu JA in Tong Pon Wah v. Hong Kong Society of Accountants (cited in para.102 of this judgment) are apt :

“It must be recognised that over-legalising informal disciplinary proceedings is undesirable.  Most disciplinary tribunals are presided over by men or women with no legal qualifications … I do not doubt that they are able to and can return correct verdicts, but these proceedings are often distressfully flawed in the courts by a fault-finding expedition in which non-professional judges are clearly more vulnerable.  Our society would be better served if those practising in or close to public law could be more self-disciplined and less overzealous, lest the professional bodies striving to upkeep professional competence and integrity would soon be drowned in a sea of tedious litigation.  After all, the professions are best judged by their own peers.  Sadly, time and again it falls upon the courts to maintain a proper balance.”

Costs

106. While I have dismissed the application, I have, however, recognised that there was a procedural irregularity – more than a merely trivial one – in the process by which the Commissioner determined that the applicant should be retired.  I have recognised also that the irregularity caused some unfairness to the applicant although not an unfairness that demanded that the Commissioner reconsider his decision.  In the circumstances, in the exercise of my discretion, I believe that the most equitable order as to costs would be one in which both parties meet their own costs.  There will be an order nisi to that effect.

My orders

1.	The application for judicial review is dismissed.
2.	There will be an order nisi of no order as to costs, that order to be made final in 30 days.