CHAN HOK YEE v. ATTORNEY GENERAL

1994, No.MP359

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

___________

___________

________

JUDGMENT

________

1. In 1992, the applicant, a civil servant of 14 years' standing, was an Immigration Officer. He held two qualifications in management and administration. He was a recipient of two letters of commendation from the management of the Immigration Department. He also had, to his credit, several letters of appreciation from members of the public. In December 1992, he applied for No-Pay Study Leave under the Civil Service Regulations with the view to enrolling himself in the programme of Master of Business Administration, general management, in an Australian University on a self-funded full time basis. He applied for 22 months but reduced it later to 12½ months. Probably the applicant was to take advantage of a more intensive course and perhaps also of the special leave granted to him from 15 February 1993 to 18 May 1993.

2. On 21 January 1993, the applicant's application for No-Pay Study Leave was disapproved by the Secretary for the Civil Service and the Immigration Department on the grounds, in the main, that the nature of his proposed academic course for over a year and exigencies of the service would not permit his application to be favourably received. The disapproval was transmitted by facsimile to the applicant who immediately wrote to the Governor on the same day praying for the Governor's personal consideration of his application for No-Pay Study Leave. The applicant's letter to the Governor was treated as an appeal against the said disapproval and the applicant was notified on 15 February 1993 that in the exercise of his delegated authority by the Governor under Colonial Regulation 68, the Secretary for the Civil Service had rejected his appeal. As stated earlier, the applicant was granted special leave for three months and three days from 15 February 1993 to 18 May 1993. On 17 May 1993, the applicant appealed, this time to the Secretary for the Civil Service, against the said disapproval and his appeal to the Secretary for the Civil Service was rejected on 31 May 1993. On both occasions, in the exercise of his delegated authority from the Governor reviewing the applicant's representations and in his capacity of Secretary for the Civil Service directly entertaining the applicant's appeal, the Secretary gave as the primary reasons, tight staffing situation and the unqualifying nature of the applicant's proposed over one year's academic course.

3. The applicant did not take the authorities to task on these determinations. He applied for and obtained leave to challenge only a much later decision of the Acting Secretary for the Civil Service made on 8 November 1993, whereby the applicant was summarily dismissed under Colonial Regulation 57(3) with effect from 19 May 1993. Much was sought to be made of this feature by Mr Sham, counsel for the respondent. The refusal of his application for No-Pay Study Leave, the rejection of his "appeal" to the Governor and the dismissal of his appeal to the Secretary for the Civil Service on 21 January 1993, 15 February 1993 and 31 May 1993 respectively are not, in and for the purposes of these proceedings, decisions amenable to review. In the field of administrative law, before me these decisions must be regarded as final and conclusive. Put another way: the applicant cannot now question these determinations refusing him No-Pay Study Leave; pursuant to leave granted he may only move for judicial review of the decision to dismiss him made by the Acting Secretary for the Civil Service under Colonial Regulation 57(3) on 8 November 1993. At the time when the dismissal of the applicant was transmitted to him on 8 November, he had been absent from duty without leave for over 21 days. The power to summarily dismiss the applicant was exercised under Colonial Regulation 57(3) as applied to Hong Kong. It is not to be overlooked that in these proceedings the delegated power of the Acting Secretary for the Civil Service to dismiss the applicant was not disputed. Civil servants are not infrequently dismissed by the Secretary for the Civil Service, and counsel for the applicant might possibly have foreseen the ease with which the authority for the delegated power to dismiss could be shown. Whatever the reason was, no point was taken on the power delegated to the Secretary for the Civil Service to dismiss the applicant. In that scenario, the only question for my consideration is whether regulation 57(3) was properly invoked.

4. By a letter to the applicant dated 26 May 1993 and despatched to his Australian address, the applicant was warned in the following term:

"Absence From Duty Without Leave/Permission

Further to my letter of 18 May forwarning your failure to resume duty will be regarded as absence from duty, I am to inform you that you have been absent from duty without leave or permission since 19 May 1993 and that you are liable to summary dismissal under Colonial Regulation 57(3) for a period of unauthorised absence exceeding 21 days with effect from the date of your absence.

If you do not, within 21 days from the date of this letter furnish me with a satisfactory explanation for your absence from duty, other than pending the outcome of your request for reconsideration of your application for no-pay leave, or elect to resign from the service by payment of one month's salary in lieu of notice in accordance with Civil Service Regulation 320, action will be taken under Colonial Regulation 57(3) with a view to your summary dismissal.

In accordance with Colonial Regulation 63, an officer who is dismissed forfeits all claims to any pension, gratuity or other like benefits and to any other benefits or advantages of an officer.

Pending your resignation or dismissal, all sums of money payable to you by Hong Kong Government are being withheld.

Extracts of the following regulations are attached for your information :-

(a) Colonial Regulation 57,

(b) Colonial Regulation 63,

(c) Civil Service Regulation 312(2), and

(d) Civil Service Regulation 320."

5. On 11 June 1993, in his reply the applicant purported to furnish explanations under five heads. On 17 June 1993, on behalf of the Director of Immigration, the applicant was told that his explanations were not acceptable to justify his absence from duty without leave or permission. That letter of 17 June 1993 was in these terms :

"Absence From Duty Without Leave/Permission

I would refer to your letter of 11 June 1993 submitted in response to my letter ref 52 in this series dated 26 May 1993.

I would advise that the explanations given in your letter of 11 June 1993 are not acceptable to justify your absence from duty without leave or permission.

Accordingly, I would advise that action will now be taken under Colonial Regulation 57(3) with a view to your summary dismissal.

A copy of this letter will be sent to you by fax with the original sent by registered post."

The applicant, through his solicitors or by himself, made representations to UMLEGCO and the Civil Service Branch in the Government Secretarial but to no avail. On 14 July 1993, the applicant was given a final warning by the Director of Immigration. That letter reads :

" I refer to Secretary for the Civil Service's letter dated 30 June 1993 (a copy of the letter is attached) regarding rejection to (sic) your application for no-pay study leave.

Please be informed that consideration would be given to retaining your service if you could arrange to resume duty on or before 21 July 1993. Should you fail to report for duty on that date, i.e. 21 July 1993, Secretary for the Civil Service will seek advice at Public Service Commission on recommending that you be summarily dismissed under CR 57(3)."

Colonial Regulation 57(3) as applied to Hong Kong reads :

"Where an officer is absent from duty without leave for a period exceeding 21 days and it is reported to the Governor that -

(a) the officer cannot be traced; or

(b) on being required by notice in writing (sent to an address or addresses through which it may be reasonably expected to reach him) to give, within the period specified in the notice, an excuse for his absence, the officer has failed to give any excuse or to give an excuse that is acceptable,

the Governor may dispense with an investigation under paragraph (1) and summarily dismiss the officer."

6. It was contended by Mr Dykes on behalf of the applicant that under Colonial Regulation 57(3), no valid written notice could be served on the applicant unless he had been absent from duty without leave for 21 days. Counsel argued that the letter dated 26 May 1993 despatched to the applicant in Australia on behalf of the Director of Immigration was a request prematurely made before the expiration of the 21 days prescribed by Colonial Regulation 57(3) and that therefore regulation 57(3) had not been properly invoked; hence the summary dismissal was invalid.

7. The applicant's special leave did not come to an end until 18 May 1993. Under Colonial Regulation 57(3), the applicant could only be made answerable for his absence without leave 21 days after 19 May 1993 i.e. as from 9 June 1993. In the letter dated 26 May 1993 to the applicant, he was clearly told that he would only be liable to summary dismissal under that regulation for his unauthorised absence 21 days after 19 May 1993. The applicant was warned that unless he gave a satisfactory explanation for his absence from duty "within 21 days from the day of (the) letter", "action (would) be taken under Colonial Regulation 57(3) with a view to (his) summarily dismissal". 21 days from the date of that letter would take it to 16 June 1993. The applicant's unauthorised absence ran from 19 May 1993 and the period in excess of 21 days under Colonial Regulation 57(3) would expire on 9 June 1993. The letter of 26 May 1993 set the time within which the applicant was to furnish a satisfactory explanation for his absence from duty, and that was to be within 21 days of the letter, i.e. by 16 June 1993. It was clear to all that the applicant would become liable to explain his unauthorised absence only as from 9 June 1993 and that the applicant could not be called upon to give any explanation at all before that date. It was 7 days from 9 June to 16 June. The applicant was therefore given a week from 9 June to 16 June after he had become liable to account for his unauthorised absence to give an acceptable excuse under regulation 57(3). It is reasonably clear that the letter dated 26 May 1993 was not requiring an instant response or an explanation before 9 June 1993. By that letter, the applicant was only "required to give an excuse" after his unauthorised leave had exceeded 21 days. The letter of 26 May 1993 reminded the applicant of the risk of his summary dismissal unless a satisfactory explanation was furnished within 21 days of the letter, in effect, within a period "specified in the notice" as between 9 June and 16 June. The message was unobscure that he was "required to give an excuse for his absence" between 9 June 1993 and 16 June 1993. It had never been the intention of the Director of Immigration to solicit a reply before the applicant had become obliged under regulation 57(3) to exempt himself. In this case, the procedure in regulation 57(3) was not initiated until the applicant had, "being required" to give an excuse upon the expiration of the prescribed 21 days, failed to comply. In fact, the applicant responded on 11 June 1993.

8. From the tenor of the three letters set out above, it is plain that Colonial Regulation 57(3) was only to be activated after 8 June 1993. Colonial Regulation 57(3)(b) focuses on the need of an officer who has been so required to give an excuse, upon the expiration of the prescribed 21 days, for his unauthorised absence. That is precisely what the applicant was required to do in this case. He was so required by a notice in writing specifying a time long enough to allow a period of more than 21 days' unauthorised absence to lapse. What is envisaged by regulation 57(3) to be reported to the Governor is either the inability to trace the officer after his unauthorised absence for more than 21 days or his failure, "on being required by notice in writing", to give an acceptable excuse for that situation or event. Indeed, the fact for reporting after the event is the officer's disappearance or his failure, "on being required by notice in writing", to give any or an acceptable explanation. The written notice requiring him to furnish such an excuse may be served at any time even before the event, but the officer must be required to give an acceptable explanation only after it. That was what had transpired in this case as is reflected in the three letters set out earlier in this judgment. There is no substance in the contention advanced by Mr Dykes, counsel for the applicant. Colonial Regulation 57(3) was properly invoked.

9. That would dispose of the Notice of Motion. However, in deference to the efforts of both counsel, I will deal briefly with the other canvassed issues. The decision to refuse the applicant No-Pay Study Leave was eminently Wednesbury reasonable. The two reasons given throughout were valid. At the time, Assistant Immigration Officers were in the course of being phased out and replaced by the newly created Chief Immigration Assistants. In the computation of the applicant, the integration of the Assistant Immigration Officers with the general grade of Immigration Officers during that phasing-out period for purportedly assessing "exigencies of service" is artificial and misleading. The applicant sought to put the establishment posts for Assistant Immigration Officer at zero in order to amalgamate the existing 439 Assistant Immigration Officers, soon to be replaced, with the 832 serving Immigration Officers for numerically overtaking the 1,092 establishment posts of Immigration Officers by the so-called over-strength of 179. The conclusion so drawn must be shadowy. In the restructuring exercise with the like number of officers, involving a merger of ranks in the general grade, the practical tight staffing problem could not be alleviated. The available number of working personnel remained constant. Moreover, the nature of the applicant's proposed academic course of over a year did not, for the reasons proffered by the Immigration Department and the Secretary for the Civil Service, qualify. In my view, the decision-making process in rejecting the applicant's plea, made again and again, for No-Pay Study Leave is not susceptible to judicial review.

10. As for the power delegated to the Secretary for Civil Service under Colonial Regulation 68 to consider the applicant's representations made to the Governor, the respondent caused to be produced the internal circular of the Civil Service Branch dated 12 March 1986 and the telegrams exchanged with the Foreign Office in February 1974. I should set out Colonial Regulations 54(5) as applied to Hong Kong, Colonial Regulation 68 and Colonial Regulation 168 :

54. (1).....

(2).....

(3).....

(4) .....

(5) The Governor may delegate to any public officer any of the powers or duties conferred or imposed upon him by regulations 56 to 66, save that he shall not delegate the power to make regulations, nor, save with the approval of the Secretary of State, the power to dismiss an officer or to require him to retire under regulation 59.

68. Every officer who has any representations of a public or private nature to make to the Government should address them to the Governor. The duty of the Governor is to consider and act upon each representation as public expediency and justice to the individual may appear to require. with the assistance in certain cases of his Executive Council; and if he doubts what steps to take thereupon, or if public advantage may appear to require it, he shall refer the matter to the Secretary of State. (Underlining mine).

168. Any person in a territory has the right to make representations to the Governor on matters of a public or private nature, and in exercising this right shall address the Governor through the Chief Secretary. The duty of the Governor is to consider and act upon each such representation as public expediency or justice to the individual may appear to require, with the assistance in certain cases of his Executive Council; and if he doubts what steps to take thereupon, or if public advantage may appear to require it, he shall refer the matter to the Secretary of State. (Underlining mine).

11. Colonial Regulation 54(5) is not extended to regulation 68. It was submitted that without approval of or modification by the Secretary of State, the Governor could not delegate under regulation 68 and that modification enabling delegation under regulation 68 was not endorsed by the exchanged telegrams under the rubric "Colonial Regulation 168". These exchanges referred, in general terms, to "cases of petition to (the Governor)". These exchanges were regarded by the Civil Service Branch as the source of the Governor's authority to delegate under regulation 68. I was not assisted on the practice and usages of the Foreign Office nor the degree of formality or informality with which instructions were given. Reference to petitions to the Governor in these communications was liberal and the identification of it by the Civil Service Branch as the source of authority ought not to be treated with disdain. Further, regulation 68 relating to a public officer and regulation 168 relating to a private individual are couched in identical terms viz. "the duty of the Governor is to consider and act upon each representation as public expedience or justice to the individual may appear to require". There would seem to be every good reason for taking the same delegation procedure "in (all) cases of petition to (the Governor)", including the cases under regulation 68, as sanctioned.

12. I need hardly repeat that these proceedings concern only the applicant's dismissal and that delegation of power to dismiss under regulation 57(3) was not sought to be impugned. The applicant merely called in question the delegated power to consider a petition presented or representations made to the Governor under regulation 68.

13. Lastly, I turn to the applicant's cry of possible bias. The delegation of the Governor's power to entertain the applicant's representations to the Secretary for the Civil Service could not be said to have given rise to any real danger of bias in the circumstances of this case. The Secretary for the Civil Service constantly wears different hats. He was evidently conscious of his delegated capacity in which the applicant's representations made to the Governor were considered. The Secretary for the Civil Service would otherwise have been consulted by the Governor on the representations. In my view, there was no real danger of bias in all the circumstances. See R. v. Gough [1993] AC 646.

14. After all the water under the bridge, in September 1994, the applicant's case was presented to the Governor for His Excellency's personal perusal and the Governor expressed his consensus. The personal attention given to the applicant's case by the Governor could have no direct bearing on this motion save that it would go some lengths in dispelling any residual doubt of unreasonableness or impropriety of the various determinations complained of and in the decision-making process involved.

15. For all these reasons, I dismiss the Notice of Motion with, subject to what counsel have to say, costs of this motion and the costs for the inter partes hearing for leave.