MOHAMED YAQUB KHAN v. ATTORNEY GENERAL

Headnote

                An Auxiliary Police Officer dismissed under Section 9(1) of Cap. 233 is entitled to be informed of the reasons for his dismissal, and if these allege misconduct, he is entitled to an opportunity to make representations.

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. The Appellant, Mr. Mohamed Yaqub Khan, joined the Royal Hong Kong Auxiliary Police Force as a Special Constable in 1952. Five years later he was promoted to Inspector, and then in 1968 to the rank of Assistant Superintendent, that is he became a Gazetted Officer. His rank was automatically advanced to that of Superintendent in January 1972, when the rank of Assistant Superintendent was abolished.

2. On the 10th May 1978, whilst on duty as Divisional Superintendent Wong Tai Sin, he was asked to call on the Chief Staff Officer of the Force and when he did so he was handed the following letter:

"Dear Mr. Khan,

            I am directed by the Commissioner of Police to inform you that, by the authority of the Secretary for Security in exercise of His Excellency the Governor's powers under Section 9(1) of the Royal Hong Kong Auxiliary Police Force Ordinance, Chapter 233 of the Laws of Hong Kong which have been delegated to him, you are dismissed from the Royal Hong Kong Auxiliary Police Force with effect from Wednesday, 10th May, 1978."

3. The letter was signed on behalf of the Commissioner of Police. Mr. Khan was much surprised to receive it, for no previous intimation had been given to him that his dismissal had been in any way contemplated. Nor did the letter give any reason. He was also much offended. A considerable part of the many years since then has been occupied by his determined attempts to find out why he was dismissed and to have that dismissal set aside. They have culminated in the present litigation in which he seeks a declaration that his dismissal from the Force was illegal, ultra vires, null and void, - together with other relief. He was refused that declaration by Mortimer J. after a long hearing below.

4. Section 9 of the Hong Kong Auxiliary Police Force Ordinance Cap. 233, as the section stood in 1978, was in these terms:

5. Section 63 of the Interpretation and General Clauses Ordinance Cap. 1 provides as follows:

"63.(1) Where any Ordinance confers powers or imposes duties upon the Governor, he may delegate any person by name or the person holding any office designated by him to exercise such powers or perform such duties on his behalf and thereupon, or from the date specified by the Governor, the person so delegated shall have and may exercise such powers and perform such duties.

 

     (2) ............................

 

     (3) Where any Ordinance confers powers or imposes duties upon the Governor and such power is exercised or such duty is performed by any public officer, the Governor shall, unless the contrary is proved, be deemed to have delegated such public officer under subsection (1) to exercise the power or perform the duty."

6. There was some evidence below that the Governor had delegated his authority under Section 9 of Cap. 233 to various officers including the Secretary for Security. In addition there is the useful presumption under subsection (3). Mortimer J. was satisfied that the delegation in this instance was proper and no challenge has been made to his finding.

7. The Notice of Appeal and Notice of Additional Grounds of Appeal extend to a total of 16 pages, but in reality there are only 3 main grounds. The first is that despite appearances Mr. Khan was not in fact dismissed by the Governor or any one to whom his duties had been delegated, but rather by the Commissioner of Police or by some of his officers acting on his behalf. The second is that the dismissal was contrary to natural justice; and the third that it was in breach of what may be conveniently called the Wednesbury Principles.

By whom was Mr. Khan dismissed?

8. In order to understand this point it is necessary to refer to some of the documents.

9. On the 18th January a memorandum, written on behalf of the Commissioner of Police, recommended to the Secretary for Security that Mr. Khan be dismissed. The matters therein set out are not in themselves relevant for the moment, but paragraph 13 is important -

"In view of Mr. KHAN's continued 'discreditable conduct' since 1975, I recommend that he be dismissed by His Excellency the Governor under Section 9(1) of Cap. 233 as being in the public interest. I advocate the use of Section 9(1) since this section was used in 1971 against another former Auxiliary Superintendent on the advice of the Attorney General whose decision was based on case precedent established by Ridge v. Baldwin (House of Lords) 1963. In that decision it was stated that a Crown Servant (unless his tenure of office is governed by statute) holds his office at pleasure and that reasons for dismissal need not be given to the dismissed officer."

The recommendation did not of course go straight to the Secretary and some time later we find a minute from a Principal Assistant Secretary in the Security Branch to the Deputy Secretary -

"    At (11) - (the memorandum to which we have just referred) - CP has recommended that Mr. Y.M. Khan, SP(Aux) be dismissed from the Force under section 9(1) of the Royal Hong Kong Auxiliary Police Force Ordinance Chapter 233. The Commandant supports the recommendation and the ALO's advice is at M.14. Authority to approve dismissals from the Force under section 9(1) has been delegated to CS, S for S, DS(S) and PAS(S), and I consider Khan's dismissal wholly justified. I would normally approve this myself, but CP has warned that Khan will not easily accept dismissal and will probably make public allegations of victimisation and racial discrimination. Your covering approval is accordingly requested."

10. Mr. Mills-Owens, who has appeared throughout for Mr. Khan, emphasizes the particular phrases underlined.

11. There was some discussion then as to whether or not it would be appropriate, for reasons not connected with Mr. Khan, to delay action upon the Commissioner's recommendation and eventually, on the 2nd May, the Deputy Secretary minuted the Secretary as follows:

"    Below M21 you asked for the matter of Mr. Khan's recommended dismissal from the Auxiliary Police to be brought up at this time.

 

2.      The Police recommendations for dismissal are at (13) - (which spoke of Mr. Khan as a 'destructive element' within the Auxiliary Force) - and (11) - (the memorandum as before). The allegations of misconduct against Mr. Khan are at (11).

 

3.    I have spoken to DCP who now agrees that this would be an acceptable moment for Mr. Khan to be dismissed.

4.    I recommend you exercise your delegated powers to dismiss Khan under Section 9(1) of Cap. 233. The ALO's advice is in para 2 of M14."

12. The Secretary's reply was given the following day-

"     I agree that Mr. Y.M. Khan, SP(Aux) should be dismissed under Section 9(1) of Cap. 233."

13. The Deputy Secretary, on behalf of the Secretary, contacted the police accordingly. The relevant part of his memorandum written the same day reads –

"     In response to your recommendation and under the authority delegated to me, I approve the dismissal of Mr. Khan, SP (Aux) under Section 9(1) of the Royal Hong Kong Auxiliary Police Force Ordinance (Cap. 233). Will you please inform Mr. Khan of this decision as soon as possible."

14. Again counsel emphasized the words underlined. That memorandum led to the letter of the 10th May which we set out in the beginning.

15. The Commissioners of Customs and Excise v. Cure & Deeley Ltd.⁽¹⁾ was a case concerned with purchase tax. Regulations provided that where a person, inter alia, furnished an incomplete return, the Commissioners might "determine the amount of tax appearing to them to be due from such person, and demand payment thereof," which amount should then be deemed to be the proper tax due. In that instance a determination was signed by an assistant secretary of the Commissioners who was as such, within the legislation, authorized to make determinations and demands under the regulations. However the letter of demand was signed in the ordinary course of the office routine by an executive officer who had not been given authority to sign letters of demands. It was argued for the Commissioners that nevertheless the letter was in reality the act of the assistant secretary. The Commissioners relied upon the maxim qui facit per alium facit per se. The taxpayer on the other hand relied on the maxim delegatus non potest delegare. Sachs J. eventually, and with hesitation, concluded that the demand, though authorised by the assistant secretary, was not the act of the assistant secretary himself but that of the executive officer.

16. It is suggested that in the same way the dismissal in the present instance, although approved by the Secretary for Security, was not his act, but that of the police. We do not accept that suggestion. The present circumstances are considerably different. The Secretary for Security was aware of course that the police recommended dismissal, but at the same time the situation in respect of Mr. Khan was put in detail before him and he was expressly asked to exercise his delegated powers. It is clear in our judgment that at that stage he accepted the responsibility as his own. With every respect to him the language in which he chose to discharge that responsibility was not as exact as it might have been, but we are not persuaded that by his minute of the 3rd May he was merely approving a decision already taken by someone else. In our judgment he was making up his own mind, and did himself on that day dismiss Mr. Khan from the Force.

17. Having reached that conclusion we cannot see that the situation was altered by subsequent correspondence. Immediately upon the receipt of the letter of the 10th May Mr. Khan wrote to both the Commissioner of Police and the Secretary for Security appealing against his dismissal, pointing out his "25 years of unblemished service" and asking to be told what he had done wrong, so that he could defend himself. The reply for the Commissioner of Police was sent on the 16th and indicated that the Commissioner did not propose to "vary the decision". A further letter one month later referred to "a further determining fact in my decision". In December, in a file dealing with two petitions that Mr. Khan had submitted to the Governor, an Assistant Secretary of the Security Branch minuted to his legal adviser "on the 3rd May 1978 we wrote to C.P. approving the dismissal". Finally there is a letter from the Secretary for Security himself:

"2.    Very careful and detailed consideration has been given to your petitions. However, having re-examined the circumstances, I have concluded that your dismissal on the grounds of general unsuitability to hold office was fully justified, and that there are no grounds for altering the Commissioner of Police's original decision conveyed to you on 10th May 1978."

Counsel's emphasis again. It may be that by that time the Secretary for Security's vision had become a little clouded by Mr. Khan's stubborn efforts to obtain what he thought to be his due, but these extracts from the correspondence, together with some of the documents set out earlier, do show that the Secretary, his senior officers and senior officers of the police did at times fail by an almost incredible laxity of language to observe on paper the important constitutional safeguard accorded by statute to officers in the position of Mr. Khan. Nevertheless, as we have already indicated, we are satisfied that it was in fact accorded to Mr. Khan, the decision's having been made by the Secretary himself.

18. A subsidiary point is taken here that even so Mr. Khan should have been dismissed personally by the Secretary, or at least by a letter under his own hand. It is a suggestion that perhaps many would support. Mr. Khan held a senior position in the Force and whatever views might have been held about his service in the more recently preceding years he had given that service then for over 25 years. However the statute merely requires that the dismissal shall be "by the Governor" or his delegated officer. The statute does not specify how he is to effect it, and if it is thought appropriate to do so through a chain of intermediaries we do not see how valid objection can be raised. We draw no assistance from Vine v. National Dock Labour Board ⁽²⁾. That was concerned with the delegation of the actual power, not a notification that the power had been exercised.

19. For some reason which does not appear from the documents the dismissal, as we have seen, was not communicated to Mr. Khan until the 10th May and was expressed by the letter to be effective from that day. During the interim period Mr. Khan had been carrying out his duties in the normal way. In the course of those duties he was entitled to exercise all the powers of a regular officer to be found in Sections 50 to 59 inclusive of the Police Force Ordinance Cap. 232. Nice questions might arise as to the validity of anything done under those powers during the week in question, questions which could not arise if an officer were personally dismissed or by a letter which could be handed to him almost immediately. Mortimer J. assumed that the dismissal would not take effect until Mr. Khan had been informed thereof . We do not find it necessary to express an opinion. In our view when Mr. Khan was dismissed is not relevant to this appeal. The question is by whom he was dismissed, and we have already dealt with that.

Natural Justice

20. The relevant principles of natural justice with regard to cases of dismissal are to be found in the classic statement of Lord Reid in Ridge v. Baldwin⁽³⁾ –

"So I shall deal first with cases of dismissal. These appear to fall into three classes: dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal.

 

        The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. .....

 

        Then there are many cases where a man holds an office at pleasure. Apart from judges and others whose tenure of office is governed by statute, all servants and officers of the Crown hold office at pleasure, and this has been held even to apply to a colonial judge (Terrell v. Secretary of State for the Colonies [1953] 2 Q.B. 482; [1953] 3 W.L.R. 331; [1953] 2 All E.R. 490). It has always been held, I think rightly, that such an officer has no right to be heard before he is dismissed, and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason. That was stated as long ago as 1670 in Rex v. Stratford-on-Avon Corporation (1809) 11 East 176 , where the corporation dismissed a town clerk who held office durante bene placito. The leading case on this matter appears to be Reg. v. Darlington School Governors (1844) 6 Q.B. 682 although that decision was doubted by Lord Hatherley L.C. in Dean v. Bennett (1870) L.R. 6 Ch. 489, and distinguished on narrow grounds in Willis v. Childe (1851) 13 Beav. 117. I fully accept that where an office is simply held at pleasure the person having power of dismissal cannot be bound to disclose his reasons. No doubt he would in many cases tell the officer and hear his explanation before deciding to dismiss him. But if he is not bound to disclose his reason and does not do so, then, if the court cannot require him to do so, it cannot determine whether it would be fair to hear the officer's case before taking, action. .....

 

        So I come to the third class, which  includes the present case. There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation."

When faced with a dismissal from office, as we are here, the application of that law does not present any significant difficulty. It is only necessary to decide whether the office be one held "at pleasure" or whether it is one in which "there must be something against the holder to warrant his dismissal". That is what the judge did below. He took Section 9(1) at its face value and concluded that it gave the Governor an unfettered power of dismissal. That was an end to the matter in that respect.

21. Mr. Mills-Owens however queries that approach. If we understand his contention correctly it is that the distinction between the two classes of offices is no longer valid, or at least the consequences of the distinction are no longer so clear cut. He suggests that the principles of natural justice apply at least to some extent in all cases of dismissal from office, whether that office be held at pleasure or not, although the principles may not in every case demand a prior right to be heard. In Re Nicholson⁽⁴⁾ for example, a Canadian case, Laskin, C.J.C. appears to approve a comment that "there may be a common law duty to act fairly falling short of a requirement of a hearing or, indeed, falling short of a duty to act judicially". There has been since Ridge v. Baldwin⁽³⁾, it is said, a tendency to move away from the strict principle there set out and we have been referred to passages in Durayappah v. Fernando⁽⁵⁾, Wiseman v. Borneman⁽⁶⁾ and Malloch v. Aberdeen Corporation^{(7) .}

22. With respect we tend to doubt the existence of any such trend. As recently as 1982 Lord Brightman referred to the decision in Ridge v. Baldwin⁽³⁾ as "useful guidance on the proper approach to this type of case "⁽⁸⁾ and repeated in substance the passage we set out earlier. Be that as it may it is beyond question that the rigor of the principle may be mitigated by statute. Malloch ⁽⁷⁾ is a prime example. The Education (Scotland) Act 1962 expressly provided that every appointment for service should be "during the pleasure" of the appointing authority. At the same time no dismissal of a teacher was to be valid unless written notice of the motion to dismiss had been given to him and to every member of the authority at least three weeks before the meeting at which it was to be discussed. No express provision was made for the teacher to be heard at that meeting, but a majority of their Lordships found it to be implicit in the provision requiring him to be given notice.

23. The question then must be whether that, or any other right in favour of the officer, is implied in the legislation we are concerned with. The trial judge, on a consideration of Section 9 alone, found that there was none. With every respect to him, he did not look far enough. Lord Wilberforce, in Wiseman v. Borneman⁽⁶⁾, warned against too narrow an approach:  

"     I am not, therefore, satisfied with an approach which merely takes the relevant statutory provision (Finance Act. 1960, section 28(4), subjects it to a literal analysis and cuts straight through to the conclusion that Parliament has laid down a fixed procedure which only has to be literally followed to be immune from attack. It is necessary to look at the procedure in its setting and ask the question whether it operates unfairly to the taxpayer to a point where the courts must supply the legislative omission."

In Malloch ⁽⁷⁾ he spoke of "examining the framework and context of the employment".

24. Before making that examination in the present instance it is first necessary to decide upon our basic approach. Should we assume that the principles of natural justice are to be implied unless they are clearly excluded? Or are we to ignore them unless they are clearly included? Or, to put it as counsel submitted, is there a general presumption that where an office is created or regulated by statute the legislature intends, unless the contrary appears, that the holder should not be dismissed from that office without being accorded some form of natural justice?

25. The origin of the submission lies in theft repeated dictum of Byles J. in Cooper v. Wandsworth⁽⁹⁾ -

"..... a long course of decisions, beginning with Dr. Bentley's case, and ending with some very recent cases, establish that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature."

26. A more recent suggestion is to be found in Australia, where Bowen C.J. approves a passage from an earlier judgment of Barwick C.J. ⁽¹⁰⁾:

"The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal: see Cooper v. Wandsworth Board of Works (1863) 14 CB (NS) 180; 143 ER 414, and R. v. Electricity Commissioners; Ex parte London Electricity Committee Co. (1920) Ltd. [1924] 1 KB 171 at 205; [1923] All ER Rep 150. But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. ....."

and later:

"The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice."

27. Nicholson⁽⁴⁾ is put forward as an example of the presumption in action.

28. With all respect we do not think these authorities assist: Cooper v. Wandsworth⁽⁹⁾ was not a dismissal case at all. But so far as it may be analogous, it was a dismissal for cause. This is apparent from the words immediately proceeding those just quoted: "they - (the board) - had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so ..... ". Wilson ⁽¹⁰⁾ was also for cause. The ordinance provided that the Commissioner might dismiss, reduce in rank or salary "if, upon the hearing of the charge by a court, the ..... member is found guilty of the offence". In Nicholson⁽⁴⁾ the requirement of cause of some kind followed from the express finding that the office was not at pleasure. Laskin C.J.C. referred to it as "why he was deemed unsuitable". The question therefore for the court in these cases was whether the legislature had intended the authority, when assessing the cause or its consequences, to hear what the person concerned first had to say. The question we have to consider is not the same. It is whether the legislature intended that cause was even required. In that respect we see no reason for presumption one way or another. We should take the statute simply as it stands, not overlooking of course that it is the statute as a whole that we must consider and the context in which it was enacted.

29. We have already set out the provisions of Section 9. It will also be necessary to refer to Sections 13, 14 and 15 which provide a code for establishing and punishing disciplinary offences, and to Section 29 which reserves the prerogative rights of the Crown. We find no assistance from the preamble to the Ordinance, which merely recites that it is to "provide for the establishment and regulation of the Hong Kong Auxiliary Police Force". Its immediate predecessor was Ordinance 24 of 1927 which carried a similar preamble. Section 7 of the earlier ordinance was in substantially the same terms as Section 9 of the present, save that appointment and promotion of senior officers was by the Chief Superintendent with the approval of the Governor. Dismissal however remained in the hand of the Governor. As initially enacted the Section contained only the first three subsections. Subsections (4) and (5) were introduced in 1946 and our attention has been drawn to the "Objects and Reasons" attached to the Bill which introduced the amending legislation –

"6. The present law permits only of termination of service by the Governor or Commissioner by dismissal which expression carries an imputation of misconduct. Occasions may often arise where as a result of matters beyond a member's control his effeciency is so impaired as to render him unable to carry out his duties and Clause 7 of the Bill permits of compulsory retirement in such cases."

30. With respect we are unable to find in those words the implication that the Governor or Commissioner could dismiss only for misconduct, nor any suggestion that the new subsections were in any way restrictive of the powers already given, so as to leave room for any "a fortiori" argument. In our view the introduction of the amendments indicated a clear acceptance of power in the Governor or Commissioner to dismiss for unsuitability, but that it was thought desirable to provide in that respect for a more socially acceptable alternative.

31. Sections 13, 14 and 15 of the present ordinance provide as follows -

32. The impact of this mini code upon the powers granted by Section 9 is not clear. At one stage Mr. Stock was inclined to concede that it restricted the Commissioner's powers in so far as Section 14 offences were concerned, but on further consideration he declined to go that far. In any event we are not persuaded that it has any application to gazetted officers and it seems to us unlikely from the format of Section 9 that the legislature intended a distinction between the powers given to the Governor and those given to the Commissioner, save as to the class of officers who might be affected.

33. Section 29 is in these terms –

"29. Nothing contained in this Ordinance shall be construed to limit the right of the Crown to dismiss or terminate the appointment of members and without compensation."

It is suggested that it would be unlikely to duplicate the prerogative power and that therefore the statutory power must be of a lesser kind. With respect we do not think that necessarily follows. A prerogative power may coexist with a statutory power⁽¹¹⁾ and we can envisage practical reasons why that might be sometimes thought desirable. However it must be observed that in so far as the prerogative power to "dismiss or suspend from the exercise of his office any person holding any public office within the Colony" has been delegated to the Governor by the Letters Patent relating to Hong Kong, its exercise has been restricted to "upon sufficient cause to him appearing"⁽¹²⁾. We find it inconceivable in that circumstance that the Governor could have intended to accord to himself a wider power by the exercise of yet another aspect of the royal prerogative, namely "by and with the advice and consent of the Legislative Council to make laws for the peace, order, and good government of the Colony^"(13). We are therefore forced to the conclusion that despite the absence of express restricting words in Section 9(1), (2) and (3) the powers of dismissal contained therein may only be exercised for cause.

34. Mr. Khan's office falls therefore not within Lord Reid's second category, but within his third. What then were Mr. Khan's rights in May 1978? Lord Reid may have said that he could not "lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation". But Lord Reid was at the time concerned with a case of actual misconduct. We would most respectfully suggest that he did not have in mind a situation where cause might be undefined.

35. It is well settled that the application of natural justice must be adapted to the particular circumstances of the individual situation. In Wiseman v. Borneman⁽⁶⁾, Lord Morris said -

"We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only 'fair play in action'."

36. Even so there must exist broad general principles and we would suggest that, in cases where an officer can only be dismissed for cause, and nothing more is specified, the requirements of natural justice will depend upon the reason which in fact underlies his dismissal. At the very least, we would think he is entitled to know the reason for his dismissal. This would be sufficient if for example, in relation to the present situation, the dismissal was part of an exercise to reduce the size of the Auxiliary Force.  Wilson J. adopted a similar line in another Australian case, F.A.I. Insurance Ltd. v. Winneke⁽¹⁴⁾ -

"Again, if it were the fact that a decision affecting an individual is dictated by the application of a principle of government policy, with the result that considerations personal to the individual do not and could not influence the outcome, then there is no applicable principle of fairness which requires more than that the individual in question be informed of that overriding policy consideration."

37. Another situation would be where the officer in question was thought to be unsuitable to continue further. In this situation opinion seems to be divided. The majority in Nicholson⁽⁴⁾ thought that the officer ought to be heard. Lord Hodson, in Ridge v. Baldwin⁽³⁾, had taken the opposite view:

"I do not accept the contention of the appellant that unfitness is to be construed ejusdem generis with negligence: indeed, I think it is the antithesis of negligence and covers cases where there is no fault in the accepted sense of the word in the officer dismissed. A man may be unfit because he is stupid, vacillating, unable to meet a crisis or generally to command others, but I do not see this as the subject-matter of a charge."

Lord Morris expressed no opinion, but suggested that –

"Clearly it would be desirable and reasonable to give such an opportunity even though the alleged unfitness did not involve misconduct."

38. We likewise need express no opinion if the factors which influenced the Secretary's decision were matters of misconduct rather than of unsuitability, for in that case the opportunity ought obviously to have been given. To see what was the reality of the situation it is necessary to return in more detail to the memorandum of the 18th January 1978.

39. The opening paragraphs contain a brief recital of Mr. Khan's appointment and subsequent promotions and mention the fact that he was due to retire in 1985. There is then a reference to a series of events which occurred in the period between his promotion to Assistant Superintendent, in 1968, and 1972 and which, it is said, "threw some doubt upon his suitability for the post he held". It is conceded that in no single incident was an actual offence, either criminal or disciplinary, proven, but viewed collectively these events were thought to indicate a "dubious pattern of behaviour".

40. A precis of the events in question, headed "Allegations of Misconduct" is annexed to the recommendation. They are 8 in number, although one is merely that Mr. Khan had been interviewed on five occasions and warned with regard to his standard of duty and his personal affairs. Other events ranged from indecent behaviour towards a lady tourist to suggestions of fraud or monetary unreliability. Mr. Mills-Owens submits that in some instances, and at least in relation to a reported failure to abide by police orders with regard to registration of his marriage, the allegations are incorrectly based. Mr. Stock concedes that two, in relation to suggested fraud, do go too far.

41. The rest of the memorandum is concerned, principally, with what have been termed "the irregular pay claims" and "the loan sharking affair". The former refers to an investigation made in December 1975 into what were considered then to be inaccurate claims for pay put in by Mr. Khan, although eventually the D.P.P. advised that there was insufficient evidence to proceed further. By way of what is implied to be retaliation Mr. Khan followed in November 1976 with allegations of similar irregularities, and other dishonest conduct, on the part of other Auxiliary Officers. These were found by the C.I.D. to be largely unsubstantiated.

42. "The loan sharking affair" was an investigation pursued privately by Mr. Khan into what he thought to be illegal money lending and carried on by him from sometime in April 1975 until June 1977 when, after his appointment as District Superintendent Wong Tai Sin, he reported the matter to the Regular Divisional Superintendent. Mr. Khan's version of what had transpired during this time differed materially from that of the money lender concerned, who turned out to be a licensed money lender although, it was admitted, not a man of good repute. The memorandum observes that "there is little hard evidence to support either story but it is difficult to accept Khan's description of his 2 years' 'investigation"'. It concludes "he has, therefore, either lied or behaved in a way not acceptable in a police officer of his, or any other rank”.

43. On occasions it may not be easy to decide whether particular factors which lead to the dismissal of an officer fall on the unsuitability side of the line or on that of misconduct. However we have come to the conclusion in this instance with little hesitation that the majority and more important of the matters set out in the recommendation to dismiss Mr. Khan were matters of misconduct. We see no reason to think that the Secretary for Security based his decision on matters any other than those and we therefore conclude that in the circumstances Mr. Khan ought to have been informed of the contents of that memorandum and given the opportunity to make representations in answer.

44. Mr. Mills-Owens suggests that the same conclusion may be reached by an alternative route, that of "legitimate expectation". This is a concept now well established in the law.  It formed, for example, the basis of the decision in C.C.S.U. v. Minister for Civil Service⁽¹⁵⁾:

"But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law. This subject has been fully explained by my noble and learned friend, Lord Diplock, in O'Reilly v. Mackman [1983] 2 A.C. 237 and I need not repeat what he has so recently said. Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue."

45. Two express promises are put forward here. The first is reflected in the note of an interview held between Mr. Khan and the Chief Superintendent of the Auxiliary Force in February 1975. At that time Mr. Khan had been kept on the Reserve List for almost five years in the hope that he might then resign of his own accord. That hope not being fulfilled the police were constrained to return him to active duties. The Chief Superintendent so informed him and after dealing with other matters connected with the duties about to be assigned to him the Chief Superintendent concluded, according to the note –

"that he would be allowed to continue serving with the Force until he was due for retirement on the 17th September, 1980 when in accordance with Regulation 8 of Cap. 233 he would be retired on reaching the age of 50 years, unless he decided to resign of his own accord earlier."

                (There appears to be a discrepancy with the retirement age mentioned in the memorandum of 18th January 1978, but we are informed that Mr. Khan in fact reached the age of retirement during the actual course of the hearing below.)

46. The second express promise suggested is taken from the evidence of Mr. Khan himself. He said -

"When I was posted to Wong Tai Sin - (that was as Divisional Superintendent) - on 1st April 1977 I was instructed that I should not pursue the irregular payments any more but I should concentrate on my duties.

 

Lapski said 'you have been cleared so drop the other matters as well - you are now on path to make a name for yourself'."

47. Mr. Lapski was the officer from whom Mr. Khan took over.

48. The words of the two officers are said to constitute a promise that on the one hand the pre 1975 incidents and on the other "the irregular pay claims" would not be used against Mr. Khan in any way. We find ourselves unable to read into what was said a promise that, whatever his future behaviour might be, these incidents would not be revived.

The Wednesbury Principles

49. In view of the conclusion to which we have come on the second ground of appeal it is strictly not necessary to deal with the third, that is that the decision of the Secretary for Security was in breach of the Wednesbury Principles. However in deference to the arguments put forward we state briefly our conclusions. We do not wish to do more in view of questions as yet unresolved. It is sufficient to say that our attention has been drawn to a great number of matters. Most of those said to have been improperly taken into account are those which in our view entitle Mr. Khan to be given a hearing. Those which are said to have been improperly ignored, as for example, the report on Mr. Khan by his immediate superior officer, are unlikely to have swayed the Secretary to any significant extent in Mr. Khan's favour. We are not persuaded that no reasonable person in the position of the Secretary could have made the decision which he did. Nor are we persuaded that he acted on reports made in bad faith by the police. The attitude of those attached to the Airport Police in January 1978, and the conduct of that Divisional Superintendent in particular, reflect no credit on the regular Force, but we see no reason to think that the obvious desire of many senior officers to be rid of Mr. Khan was activated by personal malice. On the contrary the documents indicate to us a genuine belief that his continued presence was detrimental to the Auxiliary Force as a whole.

50. These conclusions do not unfortunately dispose of the appeal. We are left with two further questions raised by the amendments to the Respondent's Notice which we gave leave to introduce during the hearing, namely, whether in the particular circumstances the declaration sought ought, as a matter of discretion, to be granted, and whether Mr. Khan is entitled to damages. Neither question has yet been argued, either here or below, and we shall have to decide what course ought now to be taken. As to that we would like to hear counsel at some convenient date.

(1) [1962] 1 Q.B. 341
(2) [1957] Ax. 488
(3) [1964] A.C. 40 at p.65
(4)    [1978] 88 D.L.R. (1st series) 671 at 676
(5)    [1967] 2 A.C. 337 at 349
(6)    [1971] 2 A.C. 297 at 317
(7)    [1971] 1 W.L.R. 1578 at 1596
(8) Chief Constable of North Wales v. Evans [1982] 1 W.L.R. 1155 at 1172H
(9)   [1863] 14 C.B. (N.S.) 180 at 194; 143 E.R. 414 at 420.
(10)    R. v. Wilson (1978) 19 A.L.R. 235 at 245
(11)    per Lord Roskill, C.C.S.U. v. Minister for Civil Service (1984) 3 W.L.R. 1174 at 1202G
(12)    Article XVI
(13)    Article VII
(14)    [1982] 56 A.L.J.R. 388 at 412
(15)    [1984] 3 W.L.R. 1159, per Lord Frazer at 1187