KO MEI CHUN v. SECRETARY OF THE CIVIL SERVICE

1996, No. M.P. 1112

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an application for judicial review of the decision of the Secretary for the Civil Service on 3rd January 1996 whereby he determined that, following a disciplinary investigation held on 24th March, 4th & 5th May, 26 May, 12th June and 13th & 20th July 1995, the Applicant be compulsorily retired from the civil service under Colonial Regulation 57 with effect from 5th January 1996 and that upon compulsory retirement, she be granted a deferred pension and that she forfeit the payments which had been withheld from her during the period of her suspension from duty.

2. There were three allegations of misconduct. The first was that she failed to submit regular daily log sheets for the period from 29th March 1994 to 28th May 1994, and from 30th August 1994 to 22nd October 1994 as required by the Court Reporter Office Circular No. 11 of 1991.

3. The second was that she failed to comply with her supervisor's order to report daily to her supervisor's office for duty in the morning and after lunch for the period from the 18th August 1994 to 5th January 1995.

4. The third was that she was absent from duty for a total of 1165 minutes during the period 19th August 1994 to 31st October 1994.

5. The Applicant was first employed by the Civil Service of Hong Kong from 8th March 1971 and was employed as a Court Reporter with the judiciary division of the civil service from 1975. At the time of her suspension, she had been in employment with the civil service for almost 24 years. She was awarded a long and meritorious service certificate in February 1992 after almost 21 years of service.

6. The notice informing her of the three charges of misconduct to which I have referred was given by a letter dated 5th January 1995.

7. The hearing by the investigation committee although spread out between late March and late July of 1995 in fact lasted for only 7 days. The findings of that committee deal with the reason for the extended length at para. 25 when it indicated that much time was taken by the Applicant in explaining that whatever she had or had not done, had not in anyway affected her performance as a Court Reporter. The committee itself appears to have been at pains to point out to her that the three charges of misconduct had nothing to do with her performance. The Applicant's concern with her performance which seems to have led to the protracted nature of the hearing is in itself, as a fact, not without some significance and it is apparent from the findings with which I will deal in due course that the committee itself had paid some particular regard to that feature.

8. The committee reached and recorded its findings on 18th August 1995 and then, as I have already stated, on 3rd January 1996, the Secretary for the Civil Service informed the Applicant of the decisions which resulted in her compulsory retirement from the civil service. A year, therefore, had elapsed between the suspension and of the notice of determination. The Applicant did not receive a copy of the committee's findings until these proceedings were instituted. She was not given any opportunity to make any representations to the Secretary for the Civil Service before the decision, concerning the form or nature of any penalty which might be imposed upon her.

9. I propose to deal with the committee's findings in respect of the three allegations in the reverse order. The first which is probably the most serious allegation was that relating to her time keeping and alleged absence from work. This had been monitored by an ad hoc system which clearly the investigating committee regarded as unsatisfactory. It also accepted the Applicant's explanation and concluded that that charge could not be sustained.

10. The second allegation needs a little more consideration. It related to the allegation that she did not report to the Senior Court Reporter as she had been instructed and essentially this was an allegation that the Applicant did not dispute. However, the background is not without some significance. It appears that she did not enjoy good relations with the Senior Court Reporter who took up that position in May 1994. At some stage, a Mr. Paul Wan, a Senior Executive Officer came into the picture and what was described as a "gentleman's agreement" was reached between him and the Applicant. As a consequence of which her understanding was that she would be required to report until she started her leave on 18th July 1994 but would not be required to continue reporting when she resumed duty on 15th August 1994 unless all Court Reporters were required so to do. Her contention was that when in fact she returned to duty, the Senior Court Reporter required her to resume the reporting duty and the Applicant took the view that Mr. Wan had broken the agreement.

11. Accordingly, she refused to continue reporting giving two reasons for this. 1) She would report only in accordance with a particular regulation rather than reporting to the Senior Court Reporter, 2) she found it humiliating as only a few Court Reporters were required to report, and 3) a number of colleagues including, according to her, the Senior Court Reporter, were not themselves punctual in anyway.

12. In finding that allegation proved the committee however stated that it was unable to say whose version of the agreement, i.e. the Applicant's or Mr. Wan's was correct, but concluded that the Applicant should have followed the written instructions in guidelines. It added, however, that it regarded any practice of requiring a few Court Reporters to report to the Senior Court Reporter as undesirable and thus likely to give rise to criticism or complaint that that was an abuse of power by the Senior Court Reporter. Moreover, singling out certain officers to report was likely to make them feel humiliated.

13. In the event, it said that as far as monitoring such attendance the regulation should be applied to all Court Reporters. This was, in fact, the approach of the Applicant herself. It was clear that an unsatisfactory situation had been revealed by the evidence and the committee took the view, impliedly if not expressly, that there was a conflict of relationship which may well have exposed the Applicant and others to a position in which that relationship was likely to deteriorate and that it was better as a matter of good practice, management and sound sense that rules or guidelines should be followed by all and not on the selective basis.

14. In finding that that charge was established, indeed it was not disputed, it made the recommendation that the Court Reporter Office management should follow the guideline set out in Regulation 548 and that if it was applied, it should be applied to all Court Reporters and the committee went so far to say that that factor, and its potential effect if it were not so followed, should be considered seriously in determining the penalty on that second charge. Anyone looking at that paragraph would regard such comment as tantamount saying although the offence or breach is made out, the circumstances were such as to have given rise to it inevitably, and it would be wrong for the Applicant to be disciplined on any serious basis as a consequence.

15. This then leaves the first charge, namely the failure to submit daily log sheets as required by the circular. This was clearly admitted by the Applicant. The Applicant had put forward her explanation or mitigation for her failure in this regard and that was that she supported the resolution passed by the Government Court Reporters Association which contended that daily log sheets were useless and time wasting and secondly that she wished to arouse the attention of the administration. On that matter, she said she had made complaints without any satisfactory result.

16. The committee took the view that instructions and guidelines set by management should be observed by the staff at all times and indeed that is a view with which no one could sensibly disagree. However, it is important to refer to the evidence given in relation to this question of the daily log sheets. The evidence from the Applicant's direct supervisor during the initial part of the period covered by this charge was that most if not all Court Reporters did, in fact, submit daily log sheets despite the protest put forward by their Association. But it is also clear from what Mr. Kwok was able to tell me that there were others, though a minority, who for varying periods did not comply with the requirement either.

17. Mr. Wan's evidence on this aspect was also considered by the committee and it appears from para. 8 of their record of the evidence that he knew that the Applicant did not submit daily log sheets. This was one of the matters subject to the "gentleman's agreement" on which the committee was unable to make any positive finding as to whose version was the correct one but it is clear that between the two periods the Applicant did in fact submit log sheets and then ceased submitting them after her return from leave.

18. In effect on her return to duty, she did not resume the submission of daily log sheets just as she did not report to the Senior Court Reporter. The position then in relation to the submission of the log sheets must also have been affected by whatever was understood to have been agreed between the Applicant and Mr. Wan in that period in the middle of 1994.

19. As has been rightly pointed out this application for judicial review is not an appeal against any findings by the investigation committee. Indeed one could hardly criticise any of their findings in any respect, they having fairly and if I may say so, sensibly assessed the evidence they had heard in the factual context in which these matters had arisen. Their purpose was not, of course, to make any recommendations as to what form any disciplinary action should take. However, para. 26 of their findings was a recommendation on departmental procedures. It was critical of the system or practice being adopted in some respects in that department and gave some indication that that situation might well give rise to criticism of unfairness and abuse of authority by certain officials with the consequence of humiliation for officers being required to do things on an individual basis, their being singled out for whatever reason might have been thought to be appropriate. It is not unreasonable to regard the findings of that report and the recommendation as indicating that such matters as had been found to be proved (in effect admitted) against the Applicant should not result in serious disciplinary action.

20. The Applicant contends in these proceedings that the decision of the Secretary of the Civil Service in requiring her to be compulsorily retired and to forfeit certain suspended payments was harsh, unfair and manifestly unreasonable. In short, that applying the Wednesbury principle the decision was manifestly unreasonable. This was an administrative or executive decision. The approach of Lord Mustill to the question of fairness and reasonableness in administrative decisions in the case of The Queen v. The Home Secretary Ex parte Doody sets out a comprehensive approach reflecting the considerations of a Court where such applications are made but indicating also that there is no immutable standard. At page 560, he says:

"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from any of the often cited authorities in which the Courts have explained what is essentially an intuitive judgment. They are far too well-known. From them I derive that 1) Where an act of parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. 2) The standards of fairness are not immutable they may change with the passage of time both in the general and in their application to decisions of a particular type. 3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependant upon the context of the decision and this is to be taken into account in all this aspect. 4) An essential feature of the context is the statute which creates the discretion as regards both its language and shape of legal and administrative system within which the decision is taken. 5) Fairness will very often require that the person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with the view to producing a favourable result or after it is taken with the view to procuring its modification or both. 6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he has informed of the gist of the case which he has to answer."

21. Applying those considerations, to this case, it seems to me manifestly unfair and unreasonable that the decision compulsorily to retire the Applicant should be made. A consideration of the matters which were admitted in the context in which they occurred, should itself have given rise to a decision to apply a less serious penalty. Furthermore, the tenor of the findings and of the evidence in relation to them suggest that the investigation committee would not themselves have concluded that these were, on these facts and in this context, matters serious enough to justify the second most serious penalty.

22. It is, in my view, a proper inference to draw from the committee's comments in relation to the second charge and from its recommendations that that charge, in any event, should not attract a serious penalty. This leaves one with the question of the refusal and failure, which was undoubtedly wilful, to provide the time sheets. I have already dealt with the background to that particular aspect of misconduct. In my view, it would be entirely unreasonable to impose the second most serious penalty in respect of that particular matter. I am not, however, in concluding that, saying that failure to provide time sheets could not, in any circumstances, justify the course that was taken, i.e. the imposition of the second most serious penalty. But in this case the penalty was wholly disproportionate to the offence.

23. I remind myself of the third matter in Lord Mustill's judgment. "The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependant on the context of the decision and this is to be taken into account in all its aspect." A matter which ought to have weighed heavily in the consideration given by the Secretary for the Civil Service to the case of this Applicant is the very clear statement in the course of the findings of the committee to the effect that the charges put against the Applicant had nothing to do with her performance.

24. The other matter concerns the failure to give the Applicant any opportunity between the end of the hearing by the committee and the promulgation of the decision to retire her compulsorily to make any representations to the Secretary of the Civil Service in respect of the penalty which might be imposed for those matters which she had admitted from the outset.

25. I accept that it may well have been difficult for the investigation committee to have invited her to make representations specifically as to penalty at the conclusion of the hearing. Their function was to investigate and to make findings of fact. It was certainly not to make any recommendations as to penalty nor indeed did they seek to do so directly. Though, of course, as I have indicated earlier, they sought to indicate matters of concern which could properly go to mitigation in favour of the Applicant.

26. Mr. Kwok made it clear that the Applicant had the opportunity under the regulations to present a Petition to the Governor. By that time, of course, the administrative decision had already been taken and so the petition could only be directed at reversing the executive decision or modifying it to some extent. An aggrieved Petitioner may well feel that a decision having already be made by the Head of the Department of the Government, it was not likely to be changed to any significant extent and that is a feeling with which one can have great sympathy.

27. On this aspect, one must bear in mind points 5 and 6 in the judgment of Lord Mustill and 6 is worth repeating again "Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests , fairness will very often require that he has informed of the gist of the case which he has to answer."

28. There is no doubt, of course, that as far as the allegations are concerned this took place. But the Applicant did not know what findings the committee had made until after the decision to retire her compulsorily had been notified to her. In those circumstances, it would have been impossible for her to make any worthwhile representations as to penalty because she would not know what stance the committee took or what findings it had made. Had she seen those findings prior to the decision being notified to her, she may well have come to the conclusion, in my view quite reasonably, that no serious penalty was likely to be imposed upon her. But whether she was made aware of those findings or not, it seems to me wholly unfair and manifestly unreasonable that she should be totally in the dark as to the position when it would have been quite easy for her to have been notified along these lines:

"We have received the report from the investigation committee. These are its findings, these are its recommendations. A copy is enclosed for your consideration. The Secretary for the Civil Service has now to decide what decision and or recommendation to make by way of penalty for the misconduct found proved.

Referring you to Regulation 54(3), we invite you to make any representations before that decision is taken."

29. It would even have been preferable for such letter to indicate that the Secretary for the Civil Service had in mind compulsory retirement.

30. Such a course, in my view, meets what Lord Mustill refers to as the presumption that the administrative power will be exercised in the manner which is fair in all the circumstances. I have no hesitation in saying that in my view it was not so exercised, on this occasion, and in this respect either.

31. The application is allowed. I quash the decision and remit the matter back to the Secretary for the Civil Service for him to consider the alternative appropriate penalty for the matters in the light of these findings.

32. The Applicant, having succeeded in these proceedings, is entitled to her costs against the Respondent and I so order.

(Conrad Seagroatt)

Judge of the High Court