JONATHON LEE FRASER v. THE CHIEF EXECUTIVE OF THE HKSAR AND ANOTHER

HCAL1957/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1957 OF 2000

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J U D G M E N T

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The application

1. This is an application for leave to apply for judicial review. The decisions that are being challenged are :

1. The decision of the Chief Executive as set out in a letter dated 10 May 2000 refusing to consider a petition by the applicant dated 5 May 2000 and served pursuant to Regulation 27(2) of the Police (Disciplinary) Regulations ("the Regulations"), Cap.232.

2. The decision of the Secretary for the Civil Service ("the Secretary") not to process the applicant's petition so as to permit the Chief Executive to consider it in accordance with Regulation 27.

3. The decision of the Secretary to remove the applicant from the strength of the Police Force prior to the Chief Executive considering the petition of the applicant.

The history

2. The applicant was a former member of the Hong Kong Police Force. He joined in September 1984. Disciplinary proceedings were commenced by the Police Force against the applicant in 1998, resulting in a conviction being entered against him on 18 March 1999. On 3 May 1999, the applicant was informed that the award of punishment would be referred to the Commissioner. This referral was based on the procedure laid down by Regulations 23(1) and (4).

3. The Deputy Commissioner subsequently informed the applicant that he had decided to recommend to the Chief Executive that the applicant should be dismissed in accordance with Regulation 27(1) of the Regulations. The applicant was interdicted on the same day, namely, 13 July 1999.

4. On 18 September 1999, the applicant appealed to the Commissioner against the conviction, as well as the decision to recommend to the Chief Executive the award of dismissal on the charge. On 1 March 2000, the applicant was informed that the appeal had been dismissed on 25 February 2000. He was further informed that he had the right to petition the Chief Executive in accordance with Regulation 26(2) against the decision dismissing his appeal; if the petition was not made under Regulation 26(2), or if the petition so made was dismissed by the Chief Executive, the Commissioner would, in accordance with Regulation 27(1), forward a report to the Chief Execution for his consideration of the recommended award of dismissal, and the applicant had the right, by virtue of Regulation 27(2), to petition the Chief Executive in respect of the recommended award within 14 days upon his notification of such an action.

5. The applicant did not lodge any appeal under Regulation 26(2) which expired on 23 March 2000. By a letter dated 5 May 2000, the Secretary for the Civil Service ("the Secretary") informed the applicant that approval was given to his request for an extension of time to make further representations to the Chief Execution under Regulation 27(2). He was told that he was allowed to submit further representations by "close of play" on 10 May 2000. The letter stated that "the opportunity is taken to inform you that your appeal under Regulation 27(2) will be processed as long as you remain as a member of the Police Force".

6. The applicant's contract was due to expire on 18 April 2000. After taking into account accrued leave, the contract expired on 11 May 2000. Earlier on 8 March 1999, before the expiration of the applicant's contract, the Commissioner of Police ("the Commissioner") made a conditional offer to him for a further three-year contract "subject to physical fitness and satisfactory service and conduct meanwhile". The applicant accepted the offer on 10 March 1999.

7. On 14 April 2000, the applicant was informed by the Commissioner that in the light of his recent conviction of a disciplinary charge, he had failed to satisfy the "service and conduct condition" for further employment. He was told that he would leave the Police on expiry of his current contract which, after taking into account the accrued leave, he would be "struck-off-strength" of the Police Force on 11 May 2000.

8. On 2 June 2000, the Secretary informed the applicant that on the understanding that he was struck-off the strength of the Police Force on 11 May 2000, processing of his representation had ceased since he was no longer a member of the Police Force. It is stated that it was no longer appropriate for him to make any representation under the Regulations, however, this would not preclude him from making appeal complaints to the Administration.

The applicant's case

9. The applicant argued that the provisions of the Regulations provide a scheme for the discipline and dismissal of officers employed within the Police Force. It provides a codified framework whereby the officer is guaranteed the right to be heard in respect of disciplinary or defaulted proceedings, and any order made in consequence of these proceedings including the officers' dismissal from the ranks of the Police Force.

10. Regulation 27 provides that the Commissioner shall refer the proposed dismissal of an inspector to the Chief Executive who shall confirm the Commissioner's proposed course or vary it in a number of stipulated ways. The applicant, Mr Fraser, who appeared in person today argued that he had submitted the representation within the extended time limit, his right to be heard by the Chief Executive was entrenched and irrevocable, the Secretary was obliged to process the representation and submit them for consideration by the Chief Executive. By not doing so, his right to have a dismissal reviewed by the Chief Executive was effectively removed without lawful excuse. The decision to remove him from the strength was unlawful as his dismissal must be subject to the review by the Chief Executive before it could be acted upon to remove him.

Termination of contract

11. It is clear from Regulation 27 that while the Commissioner may recommend a dismissal, the decision to dismiss vests with the Chief Executive. To date, there has not been a decision to dismiss the applicant by the Chief Executive. The legal position is that on 11 May 2000, the applicant had to leave the Police Force not because he was dismissed, but rather because his contract expired on that day. His new contract was conditional upon him satisfying the "service and conduct condition". It was not because of a dismissal that stopped him from continuing his employment with the Police under the new contract but because of the non-fulfillment of a condition by reason of his conviction of the disciplinary charge. The applicant did not petition the Chief Executive on matters relating to the conviction.

12. As the applicant's contract had been terminated by reason of expiration of time, in my view, it would be academic for the Chief Executive to consider the recommendation by the Commissioner to dismiss the applicant when the Chief Executive would not make any decision on the recommendation because the applicant's contract as a police inspector had already ceased. Hence, the applicant has no ground for judicial review against the decisions of the Chief Executive and the Secretary.

13. The applicant explained that he did not pursue the appeal procedure against the conviction because the Commissioner refused to extend time. Actually, Regulation 26(2) provides for the time to appeal to the Chief Executive, the Commissioner has no role to play on the question of extension of time to appeal to the Chief Executive. But whatever may be the reason for not pursuing that course, the fact remains that even up to now, there is no challenge by way of judicial review or appeal to the Chief Executive against the finding of conviction.

The applicant's complaint of unfairness

14. In relation to the applicant's challenge on the decision of the Secretary to remove him from the strength of the Police Force prior to the Chief Executive considering his representation, the applicant states that he has been unfairly treated because there was a previous case in which a police officer had his contract extended in order to complete the disciplinary procedure; he was only informed that his contract would not be renewed four days before its expiration, and he had received no prior information of any intention of not renewing his contract. He said that there was discrimination against contract officers and this matter had been discussed among the contract officers and the Police Force. He said that his conviction was a minor matter and the information he received was that the initial decision was merely to reprimand him for his conduct. Further, during the disciplinary proceeding, he continued to receive training and trained other officers in bomb disposal, which was a sensitive post, and he was offered a further contract.

Renewal of contract is subject to private law

15. I think the point is this : Government employees are employed either on contract terms or on pension terms, those on contract clearly run the risk of not having their contracts renewed when they expired. This would be the case irrespective of whether the employee faces a disciplinary proceeding or not. What is more important is that one has to bear in mind that the decision not to renew a contract is a private law matter and not subject to the purview of judicial review. As Sir John Donaldson MR held in R. v. East Berkshire Health Authority, ex parte Walsh [1985] 1 QB 152 at 165 :

"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....."

16. In this case, the right to dismiss a police officer arises by virtue of the statue, namely the Police (Disciplinary) Regulations, and as a result of disciplinary offences provided by Regulation 3. But this is not a case of dismissal. It is not necessary for me to consider the questions of whether if there was actually a dismissal, then such a decision is subject to the supervision of the court, and whether a disciplinary procedure had been incorporated into the contract of service which deprived the procedure and compliance of them with any public law character as discussed in cases like Walsh and R. v. Secretary of State for the Home Department, ex parte Benwell [1985] 1 QB 555 (per Hodgson J) at p.573.

17. While the decision not to renew the contract was based on the conviction, there is no challenge against the conviction. I cannot see how the matter can come under the supervision of the court. The applicant's remedy, if any, is by way of private litigation. One may add that in private law in Hong Kong, even if a dismissal is found to be wrongful, an employee cannot seek specific performance of a contract for personal service. His remedy lies in damages. This being the position in private law, the question of reinstatement simply would not arise in the present case. The applicant's remedy, if any, is by way of private litigation. In my view, the applicant has not made out any ground of challenge for a judicial review of the third decision.

Conclusion

18. Accordingly, the application is dismissed with no order as to costs.