PRISCILLA SIT KA YIN v. THE EQUAL OPPORTUNITIES COMMISSION

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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JUDGMENT

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[In Chambers]

1. This is an application for leave to apply for judicial review. The decision challenged is the decision of the Equal Opportunities Commission to dismiss the Applicant from her employment by the Commission. The Applicant requested a hearing of the application if leave was not granted on the papers. Leave was not granted on the papers, and a hearing of the application was therefore ordered. The hearing before me today is that hearing.

2. The hearing was ordered to be in open court because para. 2.6 of the Practice Direction relating to cases in the Administrative Law List provides:

"If leave to apply for judicial review is sought at an oral hearing, the hearing will take place in open court, unless the judge hearing the application orders otherwise."

There did not appear to me to be any reason why I should direct otherwise. However, the Applicant has now requested that the hearing of the application should be in chambers. I directed that the hearing should commence in chambers, and that I would first hear argument as to whether the hearing should continue in chambers. If I were to decide that the hearing should continue in open court, the hearing would continue in open court.

3. The Applicant wishes the hearing of the application to be in chambers because she does not wish it to be publicly known that she was dismissed from her employment. She recognises that if leave to apply for judicial review is granted, the substantive application for judicial review would have to be in public. But why, she asks rhetorically, should the fact of her dismissal become public knowledge if her application for leave to apply for judicial review fails?

4. A not dissimilar application was made in Re The Takeovers and Mergers Panel [1996] 3 HKC 379. In that case, the court referred to the guiding principle stated by Sir John Donaldson M.R. in R. v. Chief Registrar of Friendly Societies ex p. New Cross Building Society [1984] 1 QB 227 at p.235D-F:

"The general rule that the courts shall conduct their proceedings in public is but an aid, albeit a very important aid, to the achievement of the paramount object of the courts which is to do justice in accordance with the law. It is only if, in wholly exceptional circumstances, the presence of the public or public knowledge of the proceedings is likely to defeat that paramount object that the courts are justified in proceeding in camera. These circumstances are incapable of definition. Each application for privacy must be considered on its merits, but the applicant must satisfy the court that nothing short of total privacy will enable justice to be done. It is not sufficient that a public hearing will create embarrassment for some or all of those concerned. It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice."

5. In my view, the Applicant seeks no more than to avoid the embarrassment which the public disclosure of her dismissal would cause. Proceedings in court - other than purely interlocutory proceedings - must be held in public unless (a) they are required by rules of court to be in private, or (b) justice would otherwise be denied. That applies particularly to proceedings by way of judicial review, because they relate to decisions made in the public field, and the public has a legitimate interest to be informed about them. And an application for leave to apply for judicial review is not purely interlocutory, because if the application fails the right of the applicant to invoke public law in pursuit of a remedy is finally disposed of.

6. Mr. Johnny Mok for the Applicant argues that all applications for leave to apply for judicial review which are determined at a hearing should be heard in chambers, because applications for leave are merely preliminary to an application for judicial review, and it is the application for judicial review itself which the public has a legitimate interest in being informed about. That argument is of no avail to Mr. Mok because of the terms of the Practice Direction by which the court is bound.

7. For these reasons, I rule that this application for leave to apply for judicial review must continue in open court. I shall adjourn for a short while to enable the court to be opened, and for counsel and myself to robe.

[After further argument in Court]

8. The Applicant was employed by the Commission in a senior capacity. On 26th September 1997, her employment with the Commission was terminated with immediate effect. She claims that in a number of respects her dismissal was not in accordance with the Disciplinary Policy and Procedures which the Commission had circulated to all members of staff, as well as contravening her right, by reason of the rules of natural justice, to a fair hearing before any disciplinary action was taken against her. She now applies for leave to apply for judicial review of the termination of her employment.

9. I was not prepared to grant the Applicant leave on the papers. Such rights as she had to be treated fairly in accordance with the Disciplinary Policy and Procedures, and to be accorded a fair hearing before any disciplinary action was taken against her, appeared to me to be rights which she enjoyed in private law only. If that was right, her claim was not properly the subject of an application for judicial review.

10. The Commission is a public body established under the Sex Discrimination Ordinance (Cap. 480) ("the Ordinance"). It performs its functions in the public interest. For the better performance of its functions, it has the statutory power to employ such persons as it thinks fit. However, as Sir John Donaldson M.R. said in R. v. East Berkshire Health Authority ex p. Walsh [1984] 3 WLR 818 at p.826 G-H:

"Employment by a public authority does not per se inject any element of public law. Nor does the fact that the employee is in a 'higher grade' or is an 'officer'. This only makes it more likely that there will be special statutory restrictions upon dismissal or other underpinning of his employment: see per Lord Reid in Malloch v. Aberdeen Corporation [1971] 1 WLR 1578 at p.1582. It will be this underpinning and not the seniority which injects the element of public law."

11. I therefore turn to whether there were any special statutory restrictions upon the Applicant's dismissal or other statutory underpinning of her employment. Mr. Mok relies upon para. 11(1) of Sch. 6 to the Ordinance which provides (so far as is material):

"The Commission shall determine - (a) ... the terms and conditions of employment of its employees; and (b) ... matters relating to their ... dismissal from office."

I am prepared to assume for present purposes that the Disciplinary Policy and Procedures was prepared by the Commission pursuant to its statutory duty to determine matters relating to its employees' dismissal from office. But I do not think that that means that there were any special statutory restrictions upon the Applicant's dismissal or other statutory underpinning of her employment. To quote again from Sir John Donaldson's judgment in the Walsh case at pp.827 G-828B:

"The ordinary employer is free to act in breach of his contracts of employment and if he does so his employee will acquire certain private law rights and remedies in damages for wrongful dismissal, compensation for unfair dismissal, an order for reinstatement or re-engagement and so on. Parliament can underpin the position of public authority employees by directly restricting the freedom of the public authority to dismiss, thus giving the employee 'public law' rights and at least making him a potential candidate for administrative law remedies. Alternatively it can require the authority to contract with its employees on specified terms with a view to the employee acquiring 'private law' rights under the terms of the contract of employment. If the authority fails or refuses to thus create 'private law' rights for the employee, the employee will have 'public law' rights to compel compliance, the remedy being mandamus requiring the authority so to contract or a declaration that the employee has those rights. If, however, the authority gives the employee the required contractual protection, a breach of that contract is not a matter of 'public law' and gives rise to no administrative law remedies."

12. Applying these remarks to the present case, the Ordinance did not restrict the Commission's freedom to dismiss its employees. It merely required the Commission to have a policy relating to their dismissal. Nor did the Ordinance require the Commission to contract with its employees on specified terms. It merely required the Commission to specify terms relating to dismissal from office. To the extent that the terms of the Disciplinary Policy and Procedures gave the Commission's employees various rights, those rights were accorded to the employees by the Commission and not by the Ordinance. The argument which Mr. Mok wishes to deploy - namely, that the mere fact that the Ordinance required the Commission to specify the terms relating to dismissal from office amounted to a sufficient statutory underpinning of an employee's right to a fair hearing before disciplinary action is taken - is, in my view, not arguable.

13. Mr. Mok also argues that the Applicant had a legitimate expectation that she would not be disciplined otherwise than in accordance with the Disciplinary Policy and Procedures. That may be so, but that legitimate expectation only gives the Applicant legal rights if those rights are enjoyed in public law. For the reasons I have given, I have no doubt that such rights which the Applicant has are only rights enforceable under private law. This application for leave to apply for judicial review must therefore be dismissed.

14. There are two things which I should add in conclusion. First, I understand entirely why the Applicant's solicitors thought it right to proceed initially by way of an application for leave to apply for judicial review. As Lord Woolf M.R. said in Trustees of the Dennis Rve Pension Fund v. Sheffield City Council [1997] 4 All ER 747 at p.755a-c:

"If it is not clear whether judicial review or an ordinary action is the correct procedure it will be safer to make an application for judicial review than commence an ordinary action since there then should be no question of being treated as abusing the process of the court by avoiding the protection provided by judicial review. In the majority of cases it should not be necessary for purely procedural reasons to become involved in arid arguments as to whether the issues are correctly treated as involving public or private law or both. (For reasons of substantive law it may be necessary to consider this issue). If judicial review is used when it should not, the court can protect its resources either by directing that the application should continue as if begun by writ or by directing it should be heard by a judge who is not nominated to hear cases in the Crown Office list."

15. Secondly, I do not think that it would be appropriate to direct that these proceedings continue as if begun by writ. Such rights as the Applicant has are rights under the law of contract, and this is a case in which I think the Applicant should plead her case properly, in particular how she claims that the terms of the Disciplinary Policy and Procedures became incorporated into her contract of employment. I appreciate that if the Disciplinary Policy and Procedures have not been incorporated into her contract of employment, she may not be able to establish a breach of contract at all, but the absence of a remedy in private law does not mean that the Applicant necessarily enjoys rights in public law.

16. Finally, I have referred in this judgment to whether a particular point is arguable. That is a form of shorthand. The test which I have applied is the one laid down by Godfrey J. (as he then was) in the Court of Appeal in R. v. The Director of Immigration ex p. Ho Ming Sai (1993) 3 HKPLR 157 at p.170:

"Does the material before me disclose what might on further consideration turn out to be an arguable case?"