SO CHUNG v. COMMISSIONER OF CORRECTIONAL SERVICES

HCAL 2438/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2438 OF 2000

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J U D G M E N T

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1. The Applicant in this matter is an officer in the Correctional Services Department, holding the rank of Principal Officer. On 16 June 2000, she was found guilty of an offence against discipline under the Prison Rules, Chapter 234, and was fined an amount equivalent to one day's pay. She appealed to the Commissioner of Correctional Services ('the Commissioner') but was unsuccessful in that appeal. She now seeks to quash the decision of the Commissioner on the basis, first, that the Commissioner, being obliged to give reasons for his decision to dismiss the appeal, failed to do so and, second, that in any event his decision was 'Wednesbury' unreasonable.

The factual background

2. In July 1998, the Applicant took up the post of Chief Officer (Administration) at the Tai Lam Centre for women. One of the responsibilities of that post related to the care and control of prisoners' property. In accordance with standard procedure, the Applicant conducted what is called a hand-over exercise with the previous incumbent of the post. Prisoners' property was kept in a locked storeroom, each prisoner having her own marked envelope. The Applicant and the previous incumbent carried out a stock-take at the conclusion of which the Applicant signed a standard 'Handing-Over Statement' related to the contents of the storeroom as recorded in the Prisoners' Property Registry. The Applicant signed to the following effect:

"I hereby certify that I have today taken over the above from the Outgoing Officer C.O. YEUNG Ka-mui. I have checked these items and found them to be correct and in order."

3. A month or so after the Applicant had assumed responsibility for the prisoners' property, the storeroom in which it was held was renovated. This necessitated the temporary removal and storage of all the envelopes containing prisoners' property. The Applicant was given the task of ensuring the safe removal of the property and its return to the storeroom after renovations had been completed.

4. Later that year, well after the renovations had been completed and the prisoners' property returned to the storeroom, the Applicant was asked to locate a particular envelope. Despite a search of several days, the Applicant was unable to locate the envelope. The Applicant made a report to her superior which resulted in a board of enquiry being convened. When the board had completed its investigations, it made a number of recommendations. One of those recommendations was that the Applicant should be the subject of disciplinary proceedings.

5. As a result, in May 1999 the Applicant was charged with an offence against discipline, the allegation being that, contrary to Rule 239(1)(c)(ii) of the Prison Rules, by carelessness or neglect in the performance of her duty she had contributed to the occurrence of the loss of another person's property.

6. The disciplinary tribunal consisted of an adjudicating officer who held the rank of Senior Superintendent. The proceedings at first instance were clearly quasi judicial in nature. Rules 243 and 246 set out rules of procedure applicable to such hearings. A charge sheet must be prepared containing details of the alleged offence; the officer charged is entitled to be represented and, as provided by Rule 246:

"Where the Commissioner, Deputy Commissioner or Superintendent, as the case may be, hears a charge against any officer or other person employed in the prisons -

(a) such officer or person shall be allowed to hear all of the evidence against him, to cross-examine any witness giving such evidence and to examine any witness called in his defence:

(b) the Commissioner, Deputy Commissioner or Superintendent shall take or cause to be taken notes of every statement made in evidence, whether under examination or cross-examination, and of any statement made before him by the officer or person charged, and shall invite the person by whom any such statement was made to sign the notes taken thereof."

7. Some 14 witnesses were called for the prosecution and 5 for the defence. The Applicant, however, chose not to testify.

8. On 16 June 2000, the adjudicating officer found the Applicant quilty of the offence charged. That officer's summary of the case and findings ran to more than 30 closely typed pages. The adjudicating officer had the jurisdiction (in terms of Rule 247) to award a fine not exceeding one day's pay and chose to impose this penalty. No reprimand or order for extra duty was ordered.

9. Being aggrieved, the Applicant appealed to the Commissioner. Her grounds of appeal were prepared by counsel and supported with written submissions. They were placed before the Commissioner at the end of June 2000.

10. Approximately a month later, on 28 July 2000, the Commissioner informed the Applicant (through her solicitors) that her appeal was dismissed. The letter reads as follows:

"I refer to your client's appeal against the finding and award in respect of a disciplinary charge brought against her under rule 239(1)(c)(ii) of the Prison Rules.

Having carefully considered the case and the grounds of appeal submitted, I am satisfied that the proceedings are in order and the finding of the adjudicating officer duly supported by evidence adduced before him. The appeal is on the other hand without merit. I, therefore, dismiss it.

As regards punishment of the case, I have taken into account the nature and gravity of the offence together with your client's service record and decide that the original award namely a fine of one day's pay be confirmed."

11. It is this decision - not the decision of the disciplinary tribunal itself - which is challenged as being unlawful.

The regulatory scheme within which the decision was made.

12. In terms of section 3 of the Prisons Ordinance, Chapter 234, the Chief Executive may appoint 'fit persons' to be the Commissioner, Deputy Commissioner and other officers in the prisons service. It is for the Chief Executive, in the exercise of his discretion, to appoint the persons he deems best suited for those jobs.

13. Correctional Services officers are members of a disciplined force. In this regard, the Ordinance provides that officers who are found to be in breach of the disciplinary code may be punished. It is the Prisons Rules which describe the framework within which appeals from the determination of a disciplinary tribunal may be made.

14. Rule 255D provides that:

"A Chief Officer, subordinate officer or other person employed in the prisons (including one who has been dismissed) may appeal, in accordance with the following rules, against -

(a) a finding by the Commissioner or other officer that he is guilty of a disciplinary offence;

(b) any punishment awarded by the Commissioner or other officer, other than under rule 255F."

[my emphasis]

15. A Principal Officer (the rank held by the Applicant) falls below that of a Chief Officer.

16. Under Rule 255(1), an appeal by a Chief Officer or subordinate officer shall lie:

"(a) to the Chief Executive, in respect of a finding made or a punishment awarded by the Commissioner; and

(b) to the Commissioner in any other case."

17. As to the powers on appeal of the Chief Executive or the Commissioner, Rule 255F provides that:

"Upon an appeal, the Chief Executive or the Commissioner, as the case may be, may -

(a) confirm or reverse the finding;

(b) confirm the punishment;

(c) subject to rule 255J, substitute any other punishment which could have been awarded in the first instance;

(d) remit the punishment in full or in part without substituting any other punishment;

(e) if he dismisses an appeal against a finding and no punishment has been awarded, treat the appeal as if it were a case referred to him for punishment and award any punishment or take any other action within his powers."

18. The regulatory scheme allows for the taking of further evidence. In this regard, Rule 255H states:

"For the purpose of any appeal against a finding, the Chief Executive may -

(a) accept in whole or in part the record of the evidence already taken;

(b) direct that the whole or any part of the evidence be taken again or that additional evidence be taken.

and the Commissioner may, where the appeal lies to him, do any of those things and may also himself take the evidence or part thereof again or take the additional evidence."

The failure of the Commissioner to give reasons.

19. The Applicant, who supported her appeal to the Commissioner with detailed written submissions drafted by a barrister, is aggrieved that the Commissioner has failed to provide reasons for the dismissal of her appeal other than to say that he had carefully considered the case and the grounds of appeal submitted to him. This raises the difficult question of whether the Commissioner has a duty generally to supply reasons or, if not, whether, in the particular circumstances of this appeal, that duty fell upon him.

20. Neither the Ordinance nor the rules made under it specifically direct the Commissioner (or, when relevant, the Chief Executive) to provide reasons. Rule 255F provides simply that the Commissioner may 'confirm or reverse' the finding of a disciplinary tribunal. But the fact that the legislature does not specifically require the giving of reasons is not an end to the matter. As was said by Lord Donaldson MR in R v. Civil Service Appeal Board ex parte Cunningham [1991] 4 All ER 310 (at page 318):

"... ... I do not accept that, just because Parliament has ruled that some tribunals should be required to give reasons for their decisions, it follows that the common law is unable to impose a similar requirement upon other tribunals, if justice so requires."

21. Lord Donaldoson then cited the words of Lord Bridge in Llyod v. McMahon [1987] 1 All ER 1118 (at page 1161):

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

22. That, I believe, to be a correct statement of our law at this time; namely, that our courts will require the procedure prescribed by a statute to be followed by tribunals acting under that statute and will, in addition, readily imply so much - but no more - that must be introduced by way of procedural safeguards to ensure the attainment of fairness.

23. But that is not to say that there now exists any rule of common law or of procedural fairness to the effect that a public authority must always give reasons for its decisions. Nor, as I understand it, does there exist a duty generally to give reasons subject only to reasonable exceptions that have evolved by way of empirical experience. The English Court of Appeal in R v. Royal Borough of Kensington and Chelsea ex parte Grillo (1995) 28 HLR 94 found that it was not a correct statement of the law to state, as Sir Louis Blom-Cooper QC had said in R v. Lambeth London Council ex parte Walters, that English law had "now arrived at the point where there is at least a general duty to give reasons whenever the statutorily impregnated administrative process is infused with the concept of fair treatment to those potentially affected by administrative action".

24. As I have already said, what will be implied by our courts is only so much as is necessary by way of procedural safeguards to ensure fairness. But the standards of fairness are not immutable. Lord Mustill noted in R v. Home Secretary ex parte Doody [1994] 1 AC 531 (at page 560) that what fairness demands is not to be applied by rote identically in every situation; it is dependent on the context of the decision. How then is the context of a decision to be considered? Following the dicta of Lord Donaldson in Cunningham (supra), I believe it is necessary first to look at the character of the decision making body, the kind of decision it has to make and the statutory or other framework in which it operates.

(a) The character of the decision making authority.

25. It has not been argued that the Commissioner in his appellate capacity sits as a purely domestic tribunal protected from judicial review. His role is contemplated by statute and underpinned by regulations. His duty to act fairly is, I believe, subject to the review of this Court. That being said, the Commissioner, although acting in a judicial capacity, is not independent of the Correctional Services Department and divorced from its day-to-day management. Indeed, he is the statutory head of the Department. Nor is there a requirement for the Commissioner to be legally qualified.

26. It seems to me therefore that, in ensuring fairness, the Commissioner is entitled to do so in the context of his knowledge of and experience in the Department. To put it another way, he is obliged to do no more than review an appeal placed before him so as to satisfy himself that, in the light of his professional knowledge and experience, the decision of the tribunal is, both procedurally and in substance, right and just and fair. For that is what natural justice requires of him. As Lord Morris said in Wiseman v. Borneman [1969] 3 All ER 275 (at page 228) when considering the procedures of an Inland Revenue tribunal:

"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"."

(b) The kind of decision that has to be made.

27. It is apparent from the Prison Rules that punishments meriting dismissal from the service or compulsory retirement are reserved to the Chief Executive. The Commissioner may himself impose a penalty of reduction in rank or the stoppage or deferment of a financial increment but, in so doing, he acts at first instance and an appeal from that decision lies to the Chief Executive.

28. In his appellate capacity, therefore, the Commissioner considers disciplinary infractions which attract penalties of lesser magnitude: stoppage of a day's pay, a reprimand or extra duties. While such penalties may perhaps have some affect on an officer's career, they are not in themselves draconian.

(c) The statutory framework.

29. In his appellate capacity, the Commissioner reviews the procedures of disciplinary tribunals, considers the evidence collected and has regard to the findings made. So that this may be done, the Rules oblige adjudicating officers to keep a record of proceedings and also to give reasons for their decisions.

30. However, if the Commissioner confirms the findings of a disciplinary tribunal, there is no further avenue of appeal. Accordingly, the Commissioner does not have to set out his reasons so that they may be considered by a higher appellate body.

31. It is true, of course, that the Commissioner's role is not confined to reviewing evidence gathered at first instance by a disciplinary tribunal. In terms of Rule 255H he has the power to direct that the whole or any part of the evidence be taken again or that additional evidence be obtained. In addition, it appears that he may himself take such evidence. In this regard, Rule 255H reads:

"... ... the Commissioner may, where the appeal lies to him, do any of those things and may also himself take the evidence or part thereof again or take the additional evidence."

32. In respect of the Applicant's appeal, however, the Commissioner found no need to take any of these extra steps and confined himself to reviewing the very extensive material collected by the disciplinary tribunal. In that circumstance, the decision imposed upon him by the Prison Rules was to 'confirm or reverse' the finding of the disciplinary tribunal.

My conclusion as to the need to give reasons.

33. I am satisfied that, absent special circumstances to which I shall refer later, no general duty is imposed on the Commissioner to give reasons when exercising his discretion in terms of Rule 255F. I say so for the following reasons:

(i) The regulatory framework within which the Commissioner discharges his appellate role does not direct him to give reasons. Indeed, it requires him to do no more than confirm or reverse the findings of the disciplinary tribunal.

(ii) the proceedings are 'domestic' in the sense that the process of trial and appeal remains within the Department. The process on appeal is not referred to an outside body which, as a stranger to the disciplinary code, may be expected to supply reasons for its interpretation of that code.

(iii) The Commissioner does not act as an investigating body. The disciplinary tribunal has already gathered the evidence and made determinations which are supported by reasons. The Commissioner is required to do no more than review the procedures adopted and the findings made and to assess them in light of his knowledge of and experience in the Department.

(iv) There is no appeal from the Commissioner to a higher appellate body. There is no imperative, therefore, to supply reasons for the benefit of any higher appellate body. While the Commissioner's review of any appeal to him may be subject to review by this Court, this Court is not an appellate Court looking at the merits; it considers rather the lawfulness of the process.

(v) As the statutory head of the Department, aware of the often subtle dimensions of the disciplinary code which ensures the efficient working of the Department, the Commissioner may be called upon to articulate sometimes inexpressible value judgments in reviewing appeal papers placed before him. Expressed plainly, the Commissioner may intuitively be sure that the proceedings are fair and the findings right within the context of the disciplinary code but find it difficult to articulate that knowledge. Indeed, it may be argued that if the Commissioner had to give reasons in such circumstances he may be forced to resort to legalism, what Lord Donaldson, in Cunningham (supra), described as that 'most distressing of diseases'.

(vi) In R v. Higher Education Funding Council ex parte Institute of Dental Surgery [1994] 1 WLR 242, Sedley J considered past authorities and extracted from them certain principles pointing to a duty to give reasons. He found that reasons may be required when the interest at issue is so highly regarded by the law (for example, personal liberty or dismissal from long-term careers) that fairness dictates reasons must be given. The Commissioner, however, in his appellate role, considers internal disciplinary matters attracting no more than a comparatively small fine, extra duty or a reprimand. I do not see that the law (or public policy) can in such matters demand the giving of reasons.

34. It is for those reasons that I am satisfied that, absent special circumstances, there is no legal basis for requiring the Commissioner to give reasons. But what of those 'special circumstances'? I believe that there are essentially 2 classes of cases which may oblige the Commissioner to give reasons:

(i) If the Commissioner is forced in any particular case to call for the taking of evidence again or the taking of new evidence, then, unless the disciplinary tribunal conducts that exercise and comes to new findings, the Commissioner will be taking on what is essentially an investigative role. In such circumstances, I am of the view that he will be obliged to act as the tribunal acts; that is, to support his findings with reasons.

(ii) In R v. Higher Education Funding Council (supra), Sedley J identified a class of case where the decision on its face appears so aberrant that fairness dictates that the recipient should know if the apparent aberration is in the legal sense real (and so challengeable) or only apparent. Should the Commissioner be faced with such a case, and in the most unusual circumstances of confirming the findings, I believe he would then be obliged to give reasons. Why? Because fairness would then dictate that he explain the apparently inexplicable.

35. In my judgment, neither of the special circumstances to which I have referred are applicable to the Applicant's appeal to the Commissioner.

The challenge of irrationality.

36. The Applicant, as I understand it, alleged irrationality on the part of the Commissioner in the following respects:

(i) the Commissioner did not find that the adjudicating officer had reversed the burden of proof, placing the burden on the Applicant to prove her innocence;

(ii) the Commissioner failed to find that there were circumstances in which the missing property could have been lost prior to the Applicant taking over her post;

(iii) the Commissioner erred in law and in fact in finding that there was evidence to support the findings of the adjudicating officer, and

(iv) that generally the findings of the Commissioner in dismissing the Applicant's appeal were unreasonable.

(i) Reversal of the burden of proof.

37. The Applicant alleged that on one occasion (during a break in proceedings) the adjudicating officer told both herself and her defence representative that, as she had signed to confirm receiving the missing envelope when she had first taken over her post, she would now have to prove that she had not, in fact, received it. The adjudicating officer, however, has always denied stating any such thing. In this, he has been supported by the prosecuting officer.

38. It was, therefore, for the Commissioner to resolve this conflict of fact. It cannot be a matter for this court.

39. In any event, the Applicant's grievance in this regard was aired when her representative made final submissions. There was time therefore for the adjudicating officer to be appraised of where the burden should correctly lie and the adjudicating officer appears to have recongnised that it lay with the prosecution. In the recorded findings, he said:

"Since the defence has mentioned the burden of proof, I fully agree that it should rest with the prosecution."

40. The adjudicating officer then went on to say that this did not, however, prohibit the defence from presenting witnesses and producing evidence to support its case.

41. I fail to see how, in refusing to set aside the findings on this basis, the Commissioner can be accused of misdirecting himself as to the law or acting in a manner which is 'Wednesbury' unreasonable.

42. It is, however, the Applicant's further contention that on several occasions in the recorded findings themselves the adjudicating officer made it clear that the defence had been expected to produce evidence and/or to prove various matters. Ms Fung, on behalf of the Applicant, has identified the various alleged instances. In my judgment, however, they do not, either in isolation or taken collectively, indicate that there was any reversal of the burden of proof. Comments by the adjudicating officer, for example, that the defence case would perhaps have been assisted if certain witnesses, who did not testify, had been called to do so, do not, in my opinion, indicate that the officer placed an evidential burden on the defence. The officer has done no more than refer to a lacuna in the defence case and then proceed to test whether, in light of that lacuna, the prosecution has proved its case.

43. It must be remembered that the proceedings in question were disciplinary proceedings, they were not criminal proceedings. There is nothing to suggest that the adjudicating officer was obliged to be legally qualified. In my judgment, the essential question for the Commissioner was whether he could be sure that, in his conduct of the disciplinary proceedings, the adjudicating officer had adopted principles that were right and just and fair. A reversal of the burden of proof no doubt would not have been fair. But, as I have said, in my opinion, no such error (or anything approaching it) has been demonstrated in the recorded findings.

(ii) Failure to find that the missing property could have been lost prior to the Applicant taking up her post.

44. It is apparent that the adjudicating officer was satisfied on all the evidence that it was proved that the missing envelope had been in the storeroom when the Applicant assumed responsibility for all the prisoners' property. Not only was there the evidence of a stock-take, not only was there the Applicant's signature confirming that she had taken over all the items recorded in the Registry but a witness specifically recalled the missing envelope, (a large package) being present. In the circumstances, it appears to me that the adjudicating officer was entitled to come to the finding of fact that he did.

45. In such circumstances, I do not see how it can be suggested that the Commissioner acted irrationally in allowing those findings to stand.

(iii) Finding that there was evidence to support the findings of the adjudicating officer.

46. Ms Fung, for the Applicant, made much of the accepted fact that it was never determined how or when exactly the missing property went missing. In such circumstances, she argued, it was not possible to come to a finding that the Applicant's carelessness must have contributed to the loss. I disagree. Even in the absence of such evidence, other evidence may constitute the primary facts on which an inference may be drawn.

47. Ms Fung seemed to suggest that no principle akin to the principle of res ipsa loquitor could play any roll in disciplinary proceedings. But, with respect, it appears to me that the adjudicating officer did no more than find certain primary facts proved which, in the absence of evidence to the contrary, led to the inference that, in some material measure, the Applicant's carelessness must have contributed to the loss.

48. Again, I fail to see how, in refusing to set aside such findings, the Commissioner can be accused of misdirecting himself as to the law or acting in a manner which is irrational.

(iv) The findings generally being unsupportable.

49. Under this heading, Ms Fung repeated a number of matters which were placed before the Commissioner on appeal. They were essentially 'appeal points' and clearly must have been rejected by the Commissioner or considered not to have been of sufficient importance to overturn the conviction.

50. I have considered each of these points and fail to see how the Commissioner can be criticised for not using them - either individually or collectively with all other matters - as a basis for quashing the findings of the disciplinary tribunal.

Judicial review is not a 'disguised' appeal.

51. With respect to Ms Fung, it appeared to me that quite patently the Applicant attempted to disguise a series of appeal points - the sole province of the Commissioner - by clothing them in the language of judicial review. It must be emphasised, however, that an application for judicial review is not a procedure for advocating some form of disguised appeal. It is not for this Court to evaluate the evidence or make disputed findings of fact. In so far as the basic principle needs to be enunciated, I can do no better than cite the words of Sir John Donaldson MR (as he then was) in R v. Panel on Take-overs and Mergers ex parte Datafin Plc [1987] QB 815 (at page 842):

"There was some failure on the part of the applicants to appreciate, or at least to act in recognition of the fact, that an application for judicial review is not an appeal. The panel and not the court is the body charged with the duty of evaluating the evidence and finding the facts. The role of the court is wholly different. It is, in an appropriate case, to review the decision of the panel and to consider whether there has been 'illegality', ie. whether the panel has misdirected itself lin law; 'irrationality', ie., whether the panel's decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it ..."

Conclusion

52. I am satisfied that the Commissioner was not in this case required to supply the Applicant with reasons for the dismissal of her appeal. I am satisfied too that there is no evidence that, in dismissing the appeal, the Commissioner acted unlawfully or irrationally. The application for judicial review must therefore be dismissed.

53. As for costs, there will be an order nisi that the Applicant do pay the Respondent's costs, those costs to be taxed if not agreed. The order nisi will be made final at the end of 30 days if no prior application is made to argue the matter.