CHIK PO YEE v. VOCATIONAL TRAINING COUNCIL AND ANOTHER

HCAL 59/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 59 OF 2005

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J U D G M E N T

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Facts

1.  The Applicant joined the Vocational Training Council, the 1^st Respondent, as a lecturer in 1991.  She became a senior lecturer in the Department of Hotel, Service and Tourism Studies in September 1994.

2.  In 2005, the Council made a complaint to the Independent Commission Against Corruption against the Applicant for undertaking outside work with various external tourism bodies during office hours without the prior permission of the Executive Director of the Council.

3.  After investigation, the ICAC decided not to proceed further with the complaint and investigation.

4.  However, in October 2004, the Applicant was notified by the Council that a disciplinary committee had been formed to further investigate two charges against her, namely making false claims for reimbursement of travelling expenses totalling HK$63 and submitting falsified documents in support of the reimbursement claims.

5.  Hearing of the Disciplinary Committee of the two charges was convened on 23 November 2004.  The Committee decided that the Applicant was not entitled to be represented by counsel at the hearing, after hearing submission by the Applicant’s counsel to the contrary.  Thereupon the Applicant and her counsel left the hearing, which proceeded in her absence.

6.  The hearing concluded that the 1^st charge (insofar as it related to two occasions involving $27 of false claims) and the 2^nd charge (submitting falsified documents) were substantiated.

7.  On 14 March 2004, the Administration Committee approved the Disciplinary Committee’s report as well as the recommendation of the Executive Director to punish the Applicant with termination of her employment with preserved benefits.  Although the amount involved was trivial, it was considered that the Council is “a teaching institution that expects a high standard of staff’s integrity, especially teaching staff who hold positions of trust and who act as role models for [the] students”.

8.  By letter dated 4 April 2004, the Applicant appealed against the findings and penalty so imposed to the Standing Committee of the Council, the 2^nd Respondent, but her appeal was unsuccessful.  The termination took effect on 29 April 2005.

Article 35 of the Basic Law

9.  In these judicial review proceedings, the Applicant seeks to quash the relevant decisions of the Disciplinary Committee, the Administration Committee and the Standing Committee.  While she relies on a number of grounds, undoubtedly her argument based on article 35 of the Basic Law regarding right to legal representation forms the backbone of her arguments in Court.

10.  Article 35 of the Basic Law reads:

“Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.”

11.  Essentially the Applicant argues that the Disciplinary Committee is a “court” within the meaning of article 35, and therefore she has a fundamental right under article 35 to legal representation before the Disciplinary Committee.  She argues that the decision of the Committee to deny her representation by counsel at the hearing violated fundamentally her right guaranteed by the Basic Law, and that decision vitiated the legality of the whole disciplinary proceedings.  She relies on the leading local authority on this question of legal representation before disciplinary tribunals, namely New World Development Co. Ltd v. Stock Exchange of Hong Kong Ltd [2005] 2 HKLRD 612, in support of her arguments.

New World Development Co. Ltd v. Stock Exchange of Hong Kong Ltd

12.  In New World, the Court of Appeal was concerned with whether persons charged with offences before a disciplinary tribunal of the listing committee of the Stock Exchange had an unrestricted right to legal representation before the disciplinary tribunal pursuant to article 35 of the Basic Law, article 10 of the Hong Kong Bill of Rights and/or common law. 

13.  Not only did the Court of Appeal conclude on the facts of that case that such persons did enjoy the right to unrestricted legal representation pursuant to article 35 of the Basic Law, article 10 of the Hong Kong Bill of Rights as well as common law, the court also analysed the relevant provisions and enunciated principles of general application.

14.  The decision of the Court of Appeal is under appeal to the Court of Final Appeal.  However, that appeal will not be heard until sometime next year.  For reasons given in a separate judgment on 8 November 2005, I have decided not to adjourn the scheduled hearing of this judicial review application pending the result of the appeal to the Court of Final Appeal in New World.  The present application for judicial review must therefore be decided according to the law as it now stands.  For that purpose, I must apply the principles laid down by the Court of Appeal in New World, which is a decision binding on this Court.

15.  In New World, Cheung JA, commenting on the operation of article 35 of the Basic Law, said that in deciding whether the article applies to proceedings other than those held in conventional “courts”, the matter has to be approached on a “case-by-case” basis and the framework of the particular tribunal has to be examined (at page 623B/C).  But within the confines of that approach, the following principles are relevant (at page 623C - H):

“	(1)	The Basic Law being a constitutional document must be given a purposive approach in its interpretation.  Where the provisions are concerned with the fundamental rights of the residents, a generous approach in interpretation should be adopted.
	(2)	The use of tribunals alongside courts is so prevalent in Hong Kong that it will need a strong case to justify the exclusion of tribunals from coming under the general word of “courts” in art. 35.
	(3)	A tribunal may be known by different names, the name given to a tribunal is irrelevant in this context.
	(4)	Many of the tribunals are set up expressly by statute but a statute-created tribunal is not the only criterion for coming within art. 35.  What is equally important is that such a tribunal is an integral part of a legislative framework which is concerned with and takes into account matters of public interest.
	(5)	The tribunal to be subject to art. 35 does not need to be a part of the judicial organ of the government.  A tribunal will fall within its ambit if it exercises a judicial function and its jurisdiction is not private and consensual.
	(6)	A judicial decision is made according to rules and not administrative policies.  The exercise of judicial function means the tribunal will make determinations affecting the rights of parties before it and on the basis of rules of law and following proceedings conducted in a prescribed manner.  ”

16.  In the same case, Reyes J made a number of observations on the operation of article 35 (at pages 635D/E to 637B/C):

“	104.	First, the label given to a forum cannot be decisive on whether or not it is a “court” within art. 35….
	106.	Second, a number of tests can help to gauge whether a given forum is or is not a “court” within art. 35.
	107.	Where a tribunal exercises a “judicial” function, it is likely that the tribunal is a “court” within art. 35.  Where a “court” merely makes “administrative” decisions, then (despite its official name) it may fall outside the scope of art. 35.
	108.	One might ask what “judicial” and “administrative” mean in the context of this test.  A working guideline is offered by Wade and Forsyth, Administrative Law (9th ed., 2004) at p.41:
		“	A judicial decision is made according to rules.  An administrative decision is made according to administrative policy.  A judge attempts to find what is the correct solution according to legal rules and principles.  An administrator attempts to find what is the most expedient and desirable solution in the public interest.  It is true, of course, that many decisions of the courts can be said to be made on grounds of legal policy and that the courts sometimes have to choose between alternative solutions with little else than the public interest to guide them.  There will always be grey areas.  Nevertheless the mental exercises of judge and administrator are fundamentally different.  The judge’s approach is objective, guided by his idea of the law.  The administrator’s approach is empirical, guided by expediency.  Under this analysis, based on the nature of the functions, many so-called administrative tribunals … have judicial rather than administrative functions, since their sole task is to find facts and apply law objectively …”
	109.	Another test may be to examine the source of a forum’s jurisdiction.  Is the basis of power “consensual” or “statutory”? …
	111.	Yet another test may be to look at the consequences of the tribunal’s decisions.  Where (as in Dr Ip Kay Lo v Medical Council of Hong Kong (No. 2) [2003] 3 HKLRD 851 and Solicitor v Law Society of Hong Kong (unrep., CACV No. 302 of 2002)) an adverse decision may have a serious or significant impact on a defendant’s reputation or career, the likelihood is that the forum comes within art. 35.
	112.	There could well be more tests.  It is also worth bearing in mind that no single test may be conclusive.  For present purposes, it is enough to observe that the tests identified in Dr Ip Kay Lo v Medical Council of Hong Kong (No. 2) [2003] 3 HKLRD 851 and Solicitor v Law Society of Hong Kong (unrep., CACV No. 302 of 2002), whether applied individually or cumulatively, are strong pointers to whether a tribunal is a “court” within art. 35.
	113.	Third, where a forum is a ‘court” within art. 35, it does not follow that a person is entitled to act by his lawyer in every single aspect of the forum’s process.  An inquiry into whether art. 35 rights have been transgressed by a court’s procedure does not end with mere identification of a tribunal as a “court”.  As Cheung JA stresses, there remain questions of proportionality.
	114.	One must assess whether a proper balance has been struck.  One considers the tribunal’s procedures as a whole and evaluates whether the party’s right to (say) legal representation under art. 35 has been adequately respected and safeguarded by those procedures.
	115.	But, in determining whether art. 35 rights have been compromised, the High Court takes a generous approach in favour of the person claiming the right.  This is because, as evidenced by art. 35, society regards the right to legal representation as fundamental. This means that the right should not be restricted without compelling reason.  A liberal approach, giving the defendant the benefit of the doubt, is especially called for where a tribunal’s decision may have substantial ramification on a person’s reputation, well-being or livelihood.  ”

17.  The third member of the court, Yeung JA, agreed with both judgments.

Vocational Training Council Ordinance

18.  It is necessary to take a closer look at the Vocational Training Council Ordinance (Cap. 1130), which established the Council in 1982.  The preamble of the Ordinance reads:

“To provide for the establishment, functions and management of a Vocational Training Council and for purposes connected therewith.”

19.  The Council is a body corporate with perpetual succession (section 4(1)).  It is not the servant or agent of the government and does not enjoy any status, immunity or privilege of the government (section 21).

20.  The objects of the Council can be found in section 5 of the Ordinance.  The section reads:

“	The objects of the Council shall be ––
	(a)	to advise the Chief Executive on the measures required to ensure a comprehensive system of technical education and industrial training suited to the developing needs of Hong Kong; (Amended 56 of 2000 s. 3)
	(b)	to institute, develop and operate schemes for training operatives, craftsmen, technicians and technologists needed to sustain and improve industry;
	(c)	to promote the training of apprentices;  (Replaced 35 of 1991 s. 4)
	(d)	to provide and co-ordinate the provision of skills training to persons with a disability who are aged 15 and over for the purpose of improving their employment prospects and preparing them for open employment;  (Added 35 of 1991 s. 4)
	(e)	to establish, operate and maintain technical colleges, technical institutes, industrial training centres and skills centres.  (Added 35 of 1991 s. 4)”

21.  As for the various functions and powers of the Council, they are set out comprehensibly in section 6:

“	(1)	The Council shall ––
		(a)	consider and report to the Chief Executive on any matter concerning technical education, industrial training or skills training referred to it by the Chief Executive;  (Amended 56 of 2000 s. 3)
		(b)	report to the Chief Executive annually or as often as he may direct;  (Amended 56 of 2000 s. 3)
		(c)	examine and make recommendations to the Chief Executive on the financial needs of technical colleges, technical institutes, industrial training centres and skills centres;  (Amended 56 of 2000 s. 3)
		(d)	operate and maintain any skills centre assigned to it by the Government;
		(e)	keep under review ––
			(i)	the needs of industry for trained manpower;
			(ii)	the availability of trained manpower to meet the needs of industry;
			(iii)	the facilities available to train the manpower needed by industry;
			(iv)	the provision by employers of industrial training and apprenticeships; and
			(v)	the adequacy of industrial training provided by employers for trainees and apprentices and the measures to be taken to promote and improve such training;
		(f)	consider and recommend which trades should be specified by the Chief Executive to be designated trades under section 45 of the Apprenticeship Ordinance (Cap. 47);  (Amended 56 of 2000 s. 3)
		(g)	consider and approve, if thought fit, recommendations from training boards and general committees for training courses; and
		(h)	provide technical aids and vocational assessment in connection with skills training.  (Added 35 of 1991 s. 5)
	(2)	The Council may do all things that are necessary for, or incidental or conducive to, the better carrying out of the objects of the Council and may in particular, but without prejudice to the generality of the foregoing ––
		(a)	consult with the Government and with any interested person on any matter pertaining to technical education, industrial training or skills training;
		(b)	conduct or commission research into any aspect of technical education, industrial training or skills training;
		(c)	receive and consider suggestions or proposals for the development of technical education, industrial training and skills training;
		(d)	specify the skills and operations to be taught to persons undergoing industrial training;
		(e)	devise training programmes, examinations and tests for any trade;
		(f)	recommend the minimum standard of education to be attained by persons as a pre-requisite to their undergoing technical education or industrial training;
		(g)	disseminate training materials and information on matters kept under review under subsection (1):
		(h)	establish, operate and maintain technical colleges, technical institutes, industrial training centres and skills centres;
		(i)	provide or approve training courses and other facilities for technical education, industrial training and skills training;
		(j)	help candidates for industrial training and skills training to find suitable training facilities;
		(k)	establish standards of skill to be achieved in any particular trade, conduct examinations and tests in respect of any trade and award certificates of attendance and competence;
		(l)	with the approval of the Chief Secretary for Administration make use of personnel, facilities and services of any department of the Government;   (Amended L.N. 362 of 1997)
		(m)	allocate funds of the Council to any person for the purpose of providing any training course approved by the Council other than a training course which that person is responsible for providing under any other Ordinance or is providing in order to meet his own requirements for trained personnel;
		(n)	employ staff and remunerate them;
		(na)	pay to the Government amounts representing the cost of pension benefits payable by the Government pursuant to section 4 of the Pensions (Special Provisions) (Vocational Training Council) Ordinance (Cap. 387) in respect of persons transferred from service under the Government to service under the Council;   (Added 55 of 1991 s. 5)
		(o)	engage technical and professional advisers to advise on any matter arising out of or connected with any of the functions of the Council, and remunerate them;
		(p)	pay allowances to persons attending courses provided or approved by the Council;
		(q)	pay allowances to persons partaking in the provision of training courses provided or approved by the Council;
		(r)	pay such expenses as it thinks fit to any member, other than a public officer, of the Council, of a council committee or of a training board or general committee;
		(s)	acquire, hold and lease any property required for the discharge of its functions under this Ordinance and, subject to the terms and condition upon which such property is held, dispose of it;
		(t)	receive funds and donations lawfully given and consistent with its objects under this Ordinance;
		(u)	with the approval of the Financial Secretary borrow or otherwise raise money on such security as may be necessary, and, for that purpose, charge all or any part of the property of the Council;
		(v)	charge fees for any services or the use of any facility provided by the Council;
		(w)	enter into any contract in furtherance of its objects or the exercise of its functions;   (Amended 35 of 1991 s. 5)
		(x)	enter into a partnership or other form of joint venture with other persons;
		(y)	acquire, hold and dispose of interests in other corporate bodies and form or take part in forming corporate bodies;
		(z)	provide for profit or otherwise training or educational programmes, advisory, consultancy, research or other related services; and
		(za)	make a loan to any person on such terms as it considers appropriate in furtherance of its objects or the exercise of its functions.  ”

22.  Part III of the Ordinance makes provisions for the membership, executive board and committees of the Council.  It is fair to say that the Chief Executive has a major role to play in relation to filling up the membership of the Council, the appointment of the Executive Director, the establishment of training boards and general committees of the Council, as well as the appointment of their members. 

23.  The operation of the Council is essentially funded by the government pursuant to provisions set out in Part IV of the Ordinance. 

24.  Section 22 of the Ordinance provides that the Chief Executive in Council may give to the Council such directions as he thinks fit with respect to the exercise of the functions under the Ordinance and the Council shall comply with any such directions.

25.  Section 20 of the Ordinance gives the Council the power to make rules:

“	(1)	The Council may make rules not inconsistent with this Ordinance for all or any of the following matters ––
		(a)	the regulation of its proceedings and the proceedings of any council committee, training board or general committee;
		(b)	the regulation and control of its finances;
		(c)	the regulation of the conditions and terms of employment and the discipline of persons employed or engaged under section 6(2);
		(d)	the regulation of the conduct and discipline of students at technical colleges and technical institutes and trainees at industrial training centres and skills centres; and
		(e)	the better carrying out of its objects and exercise of its functions under this Ordinance.
	(2)	For the purposes of subsection (1)(d) different rules may be made for different colleges, institutes or centres.
	(3)	Rules made under this section shall not be regarded as subsidiary legislation for the purpose of section 34 of the Interpretation and General Clauses Ordinance (Cap. 1)  ”

26.  Section 34 of the Interpretation and General Clauses Ordinance referred to in section 20(3) relates to tabling subsidiary legislation before the Legislative Council for vetting and approval.

Disciplinary Rules

27.  Disciplinary Rules have indeed been made by the Council.  The relevant set of rules are dated 2 May 1995.  Rule 2 sets out the circumstances under which disciplinary action may be taken:

“	2.	Circumstances under which disciplinary action may be taken
		Disciplinary action may be taken against employees who are found:-
		(i)	to have committed any breach of any of their terms and conditions of service;
		(ii)	to be guilty of any misconduct or neglect in the discharge of their duties;
		(iii)	to have failed or refused to comply with or observe official rules, regulations, instructions or directions (whether oral or written);
		(iv)	to have failed to report to the Executive Director full details of any criminal proceedings instituted against them;
		(v)	to have been convicted of any criminal offence (other than an offence which in the opinion of the Council does not affect or relate to their appointments with the Council);
		(vi)	to have so conducted themselves as, in the opinion of the council, to bring themselves or the Council into disrepute or to have acted or omitted to act in any manner as to affect adversely the Council, its affairs, property or goodwill;
		(vii)	to have failed or refused to attend order before or comply with any request or order or decision made by the Disciplinary Committee, the Staffing Sub-Committee of the Administration Committee, the Council or any authorised officer thereof, or
		(viii)	to have without cause laid a complaint leading to disciplinary action against another employee.”

28.  Rule 3 provides for the giving of a verbal warning or reprimand by the head of any division or section or unit of the Council to an employee of that particular division, section or unit in relation to less serious matters. 

29.  For more serious matters, rules 5, 6 and 7 set out the procedures for hearings before the Disciplinary Committee, the imposition of penalties and appeals.  They read as follows:

“	5.	Disciplinary committee
	5.1	The Committee shall consist of three or more staff members appointed by the Executive Director.
		…
	5.5	The Executive Director shall appoint a staff member who has not been appointed to a Committee requested to hear any case to investigate and present his findings to the Committee.  Neither this staff member nor any witness nor any person representing the employee in the disciplinary proceedings shall be a member of nor join in any discussion with the members of the Committee nor be a party to any recommendation subsequently made by the Committee in respect thereof.
	5.6	An employee who is the subject of any disciplinary proceedings shall be given not less than two weeks’ notice and will be entitled to appear and be heard and may examine witnesses at any meeting of a Committee at which any allegation against him which may lead to disciplinary action being taken against him will be considered.  The employee will further be informed of all allegations made or to be made against him at the time he is notified of the date of the meeting of the Committee at which such allegations are to be heard.  The employee is entitled to call witnesses, if any, and to be accompanied at the proceedings before the Committee by a colleague who must also be an employee of the Council and who may also be heard and examine witnesses.
		…
	6.	Penalties
	6.1	The Chairman of the Committee shall submit a report of the Committee, including recommendations on penalty, if appropriate, to the Executive Director for consideration.
		…
	6.3	In the case of an employee on a salary between Point B34 and A½ the Executive Director shall submit a full report of the Committee and his recommendations to the Staffing Sub-Committee of the Administration Committee of the Council or such other body as the Council may from time to time specify for the purpose.  If the employee is on the Directorate Pay Scale, the Executive Director shall submit a full report of the Committee and his recommendations to the Council or such other body as the Council may from time to time specify for the purpose.  The Staffing Sub-Committee or the Council or such other body or bodies, as the case may be, shall determine the type of penalty to be imposed.
	6.4	Any or all of the following penalties may be imposed on any employee found guilty of any disciplinary matter:-
		(i)	oral and/or written reprimand;
		(ii)	fine;
		(iii)	stoppage/deferment of increment;
		(iv)	termination of service but with preservation of accrued benefits; or
		(v)	dismissal with forfeiture of privileges and benefits.
	6.5	In case of loss or damage of property, the employee may also be required to make good the loss or damage caused by him.
	6.6	The employee in question shall be informed in writing of the decision of the disciplinary proceedings and of the penalty, if appropriate, imposed in respect thereof.
	6.7	Where the imposition of a penalty is decided upon, the decision shall not come into effect until two weeks or such longer period as may be permitted by the Council for lodging an appeal.  Where an appeal is lodged the operation of any such decision shall be further suspended until the determination of the appeal.
	7.	Appeals
	7.1	Employees aggrieved by any disciplinary action decided to be taken against them may within two weeks (or such longer period as the Council may permit pursuant to an application therefor by the employee to the Chairman or in his absence, the Deputy Chairman of the Council) of being informed thereof, appeal to the Executive Director in writing giving the full grounds of their appeal.
	7.2	The Executive Director will, if he decides that the appeal is not frivolous, present the appeal to the appropriate appeal authority for consideration.  For employees whom the Executive Director has the authority to remove from office, the appeal authority will be the Staffing Sub-Committee of the Administration Committee or such other body as the Council may from time to time specify for the purpose.  For employees whom the Staffing Sub-Committee of Administration Committee or other equivalent body has authority to remove from office and for directorate staff, the appeal authority will be the Council or such other body as the Council may from time to time specify for the purpose.  The appeal authority concerned may from time to time provide for and regulate the procedure to be followed in any particular appeal.
	7.3	The decision of the appeal authority on any matters referred to it shall be final and will be conveyed to the employee concerned in writing.”

Council performs public functions

30.  I would make a number of points here.  The Council is no doubt established by statute, but not only that – its establishment is to perform functions that are matters of public interest.  It concerns, amongst other things, the provision of systematic education and training in technical and industrial fields that are suited to the developing needs of Hong Kong.  Therefore unlike many organisations or corporations that are also established by statute, the Council is not essentially concerned with a purpose or function that is primarily private in nature, or is of limited relevance to the society as a whole as opposed to a minority sector thereof.  The substantial involvement of the Chief Executive (and his officers) in the functioning and operation of the Council (at least in the macro sense) bears out the public interest dimension of the Council.

31.  While education and training are directly concerned with the interests and benefits of those receiving them, those responsible for designing the teaching courses and training programmes and those doing the teaching and conducting the training are, quite obviously, an essential integral part of the whole scheme of things.  In relation to their employment and engagement, the conditions and terms of such employment and engagement, as well as the discipline of those so employed or engaged, the Ordinance makes express and specific references: sections 6(2)(n) and 20(1) to (c).  Of course, all this falls within the “management” of the Council referred to in the preamble of the Ordinance.

32.  Put another way, the employment and discipline of those employed and engaged to design the courses and training and/or provide the relevant teaching, training and education are matters that share the same public interests that underlie the Council and its functions and operation under and pursuant to the Ordinance.  Teaching staff is not an ancillary component part of the systematic education and training that the Council is charged with the statutory responsibility to provide.  It is an essential integral part of it.  In fact, all this is self-evident from the express justification given for the severe punishment that was meted out to the Applicant following conviction in the present case despite the triviality of the amount of money involved, viz., teaching staff members are supposed to be “role models” for the students and a high standard of integrity is expected from them.

33.  From all these considerations one can say that the employment, discipline and dismissal/termination of employment of teaching staff of the Council cannot be viewed simply as a purely domestic or private matter.  It does involve a public element, which is part and partial of the public interests that underlie the Council as established under the Ordinance.

Legal framework of disciplinary proceedings

34.  Turning to the legal framework governing disciplinary proceedings, it is clear to me that the matter is not purely governed by private contracts and consensual arrangements between the parties.  No doubt contracts of employment are indeed signed between the Council and its teaching staff members.  But overriding the contracts are the provisions in section 20 of the Ordinance which give the Council the power to make rules regarding the discipline of persons employed or engaged by the Council.  Though for the purpose of section 34 of the Interpretation and General Clauses Ordinance, the rules so made shall not be regarded as subsidiary legislation, it does not follow that for other purposes, they should not be so regarded, particularly in relation to their legal status.  Mr Dennis Law, counsel appearing for the 1^st Respondent at the hearing, did not suggest or seriously suggest that the Disciplinary Rules made by the Council do not have the force of law or overriding effect on whatever provisions to the contrary that there may be in the contracts of employment between the Council and its employees.  In particular, it is accepted, no doubt correctly, that the Council may at any time make rules or change existing rules relating to disciplinary matters, and the rules so made or as changed will be binding on its employees regardless of their individual consent, in relation to their future conduct.

35.  In my judgment, all this is quite clear from the provisions in the Ordinance, and the supremacy of the Disciplinary Rules is quite independent from any contractual provisions in the contracts of employment between the Council and the employees.

36.  Put another way, the Disciplinary Rules and the Disciplinary Committee set up pursuant to those rules are an integral part of a legislative framework, i.e. the Ordinance, concerned with and which takes into account matters of public interest.

37.  In New World, both Cheung JA and Reyes J laid great emphasis on the fact that the disciplinary tribunal set up in relation to the Stock Exchange was not a domestic and consensual tribunal in coming to the conclusion that it is a “court” within the meaning of article 35 (see pages 625E-626B, 638D/E-I).  In the present case, I am of the view that the disciplinary procedure as a whole, including the Disciplinary Committee in particular, operates and functions not so much by reason of contract or individual consent or consensus.  It derives its legitimacy and source of jurisdiction ultimately from statute.

38.  In my judgment, this is an important, though by no means conclusive, consideration to bear in mind.

Disciplinary Committee performs a judicial function

39.  The function of the Disciplinary Committee is, in my view, essentially judicial in nature. 

40.  Take the present case as an example: the Applicant was charged with making false claims for reimbursement of travelling expenses, as well as submitting falsified documents to support those claims.  The task of the Disciplinary Committee was to decide whether those charges were true or not, according to the evidence and materials placed before it.  If the Committee found the charges to be proven, the next stage in the disciplinary procedure would be for the relevant sentencing authority (determined under rule 6 of the Disciplinary Rules) to consider and determine the appropriate sentence or “penalty”.

41.  In my view, the Disciplinary Committee was performing a judicial rather than an administrative function.  Both Cheung JA and Reyes J explained in New World that a judicial decision is made according to legal rules and principles whereas an administrative decision is made according to administrative policy, the aim of which is to find what is the most expedient and desirable solution in the public interest (pages 623G, 635H-636C).

42.  In my view, this is again a factor weighing heavily in favour of a conclusion that the Disciplinary Committee is a “court” within the meaning of article 35.

Consequences of an adverse decision

43.  I have mentioned punishment or penalty above.  It is also a relevant criterion.  Rule 6.4 of the Disciplinary Rules provides for various different penalties that may be imposed on a guilty employee: see above.  Before I deal with the various forms of punishment, I should add that for an academic like the Applicant, even without any specific punishment following conviction, the fact of her conviction of charges involving making false claims and submitting falsified documents, and thus dishonesty, is by and of itself a sufficiently serious matter affecting both her reputation and career prospect.  That in itself is a serious punishment.

44.  On top of this, rule 6.4 provides for 5 different forms of punishment, namely reprimand, fine, stoppage or deferment of increment, termination of service with benefits, and dismissal with forfeiture of benefits. 

45.  The power to impose a fine, as has been forcefully submitted by Mr Kenneth Chan appearing together with Mr David Chum for the Applicant at the hearing, is a feature that merits special comment.  The power to impose a fine quite clearly goes beyond what normally the law of contract would allow a contracting party to have under a consensual arrangement.  Any such purported power to impose a fine would, generally speaking, be struck down as being penal in nature.  Yet the Disciplinary Rules made pursuant to specific statutory power conferred under section 20(1)(c) of the Ordinance give the relevant sentencing authority under rule 6 the power to impose a fine against a guilty employee.  That highlights the nature of the disciplinary procedure and the function that the sentencing authority is charged with, namely a judicial function.  The fine that may be imposed is plainly punitive in nature, particularly in light of the separate power under rule 6.5 to require an employee to make good any loss or damage of property caused by him or her – which would be compensatory in nature.

46.  Looking at the possible penalties that may be imposed, the more severe ones may indeed have a serious and significant impact on a guilty academic’s reputation or career.

47.  For the above reasons, a consideration of the matter from the punishment point of view would also tend to support the conclusion that the procedure in question is really a judicial rather than an administrative one, and the Disciplinary Committee is a “court” within the meaning of article 35.

Composition and procedure of the Disciplinary Committee

48.  I have also considered the composition of the Disciplinary Committee and the procedure it adopts.  While it may not have all the powers that a conventional court of law may have in relation to the holding of hearings, such as the calling of witnesses and the taking of evidence on oath, and while its procedure may not be identical to that adopted in a court of law such as sitting in public, I think on the whole, proceedings before the Disciplinary Committee resemble much more judicial proceedings than administrative ones. 

49.  In any event, the more important thing is that the Committee follows a prescribed set of procedures, which obviously aim at (amongst other things) providing a fair hearing to the employee charged.

50.  I do not find the separation of functions regarding liability and sentencing to be of great significance in determining whether the Disciplinary Committee, in performing the former function, is a “court” within the meaning of article 35.

51.  Mr Law argued that the sort of disciplinary procedure adopted by the Disciplinary Committee under the Vocational Training Council is a very common and well established procedure, in which legal representation is excluded.  The procedure aims at the informal and quick resolution of disciplinary matters.  It is concerned with purely internal disciplinary matters and the hearing is held in private.  The result of the hearing is not published.  Counsel argued that to hold that legal representation should be allowed would wholly upset the well-established procedure.

52.  I would not say that all these considerations are wholly irrelevant.  Nor do I intend to upset the status quo merely for the sake of doing so.  But after 1997, the Basic Law is the fundamental law of the Special Administrative Region which governs all areas of life in the society.  Any non-conformity with the requirements under the Basic Law must be changed.  That is a fact of life.  The court is only charged with the duty to implement the law, as it now stands.  The New World decision is binding on this Court.  Having said that, as the Court of Appeal has emphasized in New World, the application of article 35 must be approached on a case-by-case basis.

53.  The fact that the Disciplinary Committee is manned by non-lawyers is, in my judgment, of little significance in relation to the question of whether the Committee is a court within the meaning of article 35. 

54.  As regards the argument that legal representation would defeat the purpose of having a quick resolution of disciplinary charges, I think this argument has been rejected by Reyes J in New World, where the judge rejected the suggestion that lawyers will prolong hearing by taking unmeritorious technical points and spinning out their examination (see page 641B to I).

55.  I do not think the facts that the proceedings are not held in public and the result will not be generally published are really important considerations.  In my judgment, of greater importance is the possible effect of an adverse decision will be on the alleged offender, in terms of reputation and career prospects.  See the judgment of McEachern CJSC in Joplin v. Chief Constable of the City of Vancouver [1982] 2 CCC(3d) 396, 409, which was quoted by Reyes J in his judgment in New World at page 640B to E.

Trapp v.  Mackie

56.  Both parties have referred to the decision of the House of Lords in Trapp v. Mackie [1979] 1 WLR 377 on the question of whether the Disciplinary Committee is a “court”.  At page 383D to H, Lord Diplock pointed out no less than 10 characteristics which the tribunal in that case shared with a court of justice. 

57.  But it must be remembered that Trapp was a case of defamation and concerned with whether absolute privilege attached to evidence given at a local inquiry.  While what has been pointed out by Lord Diplock in terms of characteristics is of some general relevance and has therefore been taken into account, I do not think that those characteristics are by and of themselves determinative of the question of whether a particular disciplinary tribunal or committee is a “court” for the purpose of article 35.

Disciplinary Committee is a “court”

58.  Having borne all arguments and relevant considerations in mind and looked at the matter in the round, I am of the view that, as the law now stands, the Disciplinary Committee is indeed a “court” within the meaning of article 35 of the Basic Law.

Breach of article 35

59.  This, by itself, should not be the end of the matter, because one would still need to decide whether the right under article 35 has been transgressed.  Determining that a particular tribunal or committee is a court is just the first step.

60.  However, on the facts of the present case, the task of the Court is made less difficult by the fact that the Disciplinary Committee has decided from the outset to deny any legal representation at the hearing at all. 

61.  The Disciplinary Committee was the primary fact-finder in the whole disciplinary procedure.  The charges turned on facts and, borrowing from criminal law parlance, mens rea.  Consideration of documents as well as examination of factual witnesses (including the Applicant herself – if she had stayed behind and taken part at the hearing) were required.  Moreover, given that in essence dishonesty was being alleged, a critical examination of the evidence was called for.  It is quite impossible to say that the Applicant’s defence of the charges would not have benefited from representation of counsel at the hearing.  On the facts, the total denial of legal representation at the Disciplinary Committee’s hearing is plainly a serious matter.

62.  In my view, such a denial falls foul of the right conferred under article 35 for representation in the courts.

63.  In other words, there has been a fundamental breach of the Applicant’s right guaranteed under the constitution.  In my judgment, it vitiates the decision of the Disciplinary Committee, and a fortiori, the subsequent sentencing decision and appellate decision.  This is determinative of the present judicial review application.

Article 10 of the Hong Kong Bill of Rights

64.  For these reasons, I do not want to dwell on the other points also relied on by the Applicant. 

65.  In particular, in relation to article 10 of the Hong Kong Bill of Rights, which was also dealt with in New World, I would simply say that on balance, I think there has also been a breach of that article, although I confess that the decision of Mayo J (as he then was) given in R v. Hong Kong Polytechnic, ex parte Jenny Chua Yee-yen (1992) 2 HKPLR 34 did give me some difficulty in reaching my above conclusion.

66.  In that case, the court applied the considerations summarised by Webster J in R v. Home Secretary, ex parte Tarrant [1985] 2 QB 251, 285 to determine whether the right to a fair hearing conferred by article 10 of the Hong Kong Bill of Rights had been infringed by denying legal representation at the relevant hearing.  The judge concluded that on the facts of that case, the student’s right to a fair hearing had not been infringed although the disciplinary committee of the Hong Kong Polytechnic refused to allow her legal representation at the relevant hearing.

67.  For my part, I would observe that unlike article 35, article 10 of the Hong Kong Bill of Rights is concerned with the right to a fair hearing which may or may not include, in a particular case, the right to legal representation or full and unrestricted legal representation at a relevant hearing.  On the other hand, article 35 is directly concerned with the right to legal representation at the hearing. 

68.  For article 10, in order to decide whether the right to a fair hearing has been infringed by reason of the denial of legal representation, by the nature of things, the facts and particular circumstances in an individual case must be closely looked at. 

69.  On the other hand, in considering whether a case falls foul of article 35, very often, the crucial focus is on whether the tribunal or committee in question is a “court” within the meaning of article 35, and that question has to be determined “on a level of generality” without regard to the facts of the particular case (New World at page 638C, per Reyes J). 

70.  Of course, if one concludes that the particular disciplinary tribunal or committee is a court, the next question will arise as to whether the right under article 35 has been infringed and the facts must be looked at.  But in a case like the present where the “court” simply disallowed legal representation at the hearing at all, generally speaking the answer to this last stage of enquiry would be rather obvious. 

71.  By comparison, in determining whether the same facts (i.e. a denial of legal representation) would infringe the right to a fair hearing conferred under article 10 of the Hong Kong Bill of Rights, the various considerations that have been pointed out by Webster J in ex parte Tarrant, which are really fact-sensitive factors, as well as any other relevant matters, would have to be looked at.

72.  As I said, I do not wish to rely on article 10 as my main ground for decision in the present case, although with some hesitation, on reflection, I am inclined to think that article 10 has also been infringed in the present case,  having borne in mind the relevant considerations pointed out by Webster J in ex parte Tarrant, insofar as they are relevant and applicable to the present case, and having compared the facts in the present case with that in ex parte Jenny Chua.

Non-disclosure of documents etc.

73.  As to the other reasons relied on by the Applicant, I see no real substance in the complaint about non-disclosure of documents or the failure to answer questions prior to the commencement of the hearing before the Disciplinary Committee.  This case does not involve any secret communication with the Disciplinary Committee.  I do not think Mr Kenneth Chan has gone so far as to suggest that there is a general duty to supply what in a criminal case would be called “unused materials” to the Applicant for the purposes of preparation of her defence at the hearing. 

74.  As for the documents disclosed and made use of at the hearing for the first time, they did not constitute secret communication with the Disciplinary Committee because if the Applicant had chosen to remain at the hearing, no doubt she would have been supplied with the documents and in that event, she could have, if necessary, applied for an adjournment to consider her position in light of the further documents.

75.  In any event, there has not been any real prejudice resulting from this complaint even if, which is not my view, it were a valid complaint.

Lack of opportunity to mitigate

76.  As regards the lack of a mitigation opportunity prior to sentencing, I think the bottom line is fairness. 

77.  As Lord Mustill has pointed out in a well-known passage in his Lordship’s judgment in R v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, 560F/G, what fairness will often require is that a person who may be adversely affected by the decision will have an opportunity to make representation 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”.

78.  Here, after sentencing, the Applicant had a right to appeal and she did exercise her right and lodge an appeal.  In her letter of appeal, she did not put forward any mitigating submission, apart from pointing out the lack of an opportunity to do so before.

79.  On the facts of the present case, there is nothing to suggest that the appeal procedure is limited in scope or that the appellate body is restricted in its jurisdiction or powers as regards sentencing.

80.  So far as this Court can see on the materials before it, no resulting prejudice whatsoever has been suffered by the Applicant.  I would not base my decision in this case on this ground of complaint.

81.  For the sake of completeness, I should add that the complaint about the lack of an opportunity to mitigate aside, there is no challenge against the punishment on the ground that it was perverse, unduly oppressive or otherwise objectionable as such in this judicial review application.  Mr Kenneth Chan expressly confirmed his client’s position to that effect with the Court at the hearing.

Hearsay evidence

82.  As regards the complaint relating to the admission of hearsay evidence by the Disciplinary Committee, I do not accept the complaint.  I agree with Mr Law’s submission in this regard.  Re Lo Wing-tong [1990] 1 HKLR 325 is authority for the general proposition that the rules of evidence, including those against hearsay evidence, do not apply in administrative proceedings (see pages 329E to 330J).

Failure to give reasons etc.

83.  There is also the complaint that the Standing Committee in dismissing the appeal did not give any reasons.  I do not accept the argument.  The Standing Committee obviously agreed with the reasons given below and did not find it necessary to give any separate reasons of its own.

84.  There are other minor and miscellaneous arguments that do not merit any specific mentioning.  Suffice it to say I do not accept them.

Outcome

85.  In short, I would mainly base my present decision on article 35 of the Basic Law.  Insofar as may be necessary, I would also base my decision on article 10 of the Hong Kong Bill of Rights.

86.  For these reasons, the Applicant succeeds in the present judicial review application. 

87.  I make orders of certiorari to bring up and quash respectively the decision of the Disciplinary Committee dated 23 December 2004, the decision of the Administration Committee made on 14 March 2005 (which approved the Disciplinary Committee’s report and the Executive Director’s recommendation to terminate the Applicant’s employment) and the appellate decision of the Standing Committee which was communicated to the Applicant by letter dated 28 April 2005. 

88.  I also order that the costs of these proceedings be paid by the Respondents to the Applicant, to be taxed if not agreed, counsel for the parties having agreed that costs should follow the event.

89.  I thank counsel for their assistance.