SMITH, BONNIE YEE LO v. SECRETARY FOR THE CIVIL SERVICE

HCAL 80/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 80 OF 2009

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J U D G M E N T

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1.  Ms. Smith seeks judicial review of the Secretary’s decision in March 2006 to suspend her pension.

2.  Ms. Smith was an Assistant Commissioner of Police.  Her pension was governed by the Pensions Ordinance (Cap.89).  She was expected to retire from the Police in February 2007 and to cease service on 28 August 2006.  She would by then have been eligible to receive a monthly pension.  

3.  But in January 2006 Ms. Smith applied for early retirement.  She also applied for approval to take up the post of Deputy Privacy Commissioner of Personal Data (DPC) upon retirement. 

4.  Government approved Ms. Smith’s early retirement by letter dated 10 February 2006.  By letter dated 26 March 2006 the Secretary approved her application to take up the DPC post.  Ms. Smith commenced working as DPC part-time on 26 April 2006.  She took up full-time employment as DPC on 25 August 2006.

5.  By his March 2006 approval letter, the Secretary wrote that “in accordance with section 11 of the Pensions Ordinance (Cap.89) [Ms. Smith’s] monthly pension will be suspended during the period of [her] appointment [as DPC]”.  Section 11 provides that “[i]f a person to whom a pension has been granted under this Ordinance is ... appointed to service in a subvented organization..., payment of the pension may, with the person’s consent, be suspended during the period of his service in ... the organization”.  The Office of the Privacy Commissioner (in which Ms. Smith worked as DPC) is a subvented organization.

6.  There is a sound policy basis for section 11.  The provision reflects Government’s view that it is undesirable for a single person to be receiving both a pension and a salary from Government at the same time.    

7.  Ms. Smith’s monthly pension was suspended from 25 August 2006 (when she took up full-time service as DPC) until 24 August 2009 (when she ceased to be DPC).

8.  Ms. Smith now admits to having always known that her monthly pension for her service in the Police “was to be suspended in such a way that pension payment during the currency of the suspension would not be restored to me”.  Ms. Smith says, however, that she was unaware at the time of her application for approval to be DPC that “[her] consent was required as a precondition for suspension under ... section 11”.  Thus, Ms. Smith says that she never consented to the suspension of her pension.  She argues that in consequence her suspended pension (amounting to over $2 million) should now be restored to her.

9.  In my view, Ms. Smith’s case is untenable.  She is essentially raising ignorance of the law as a ground for the restoration of her pension.  But ignorance of the law cannot be an excuse.  Ignorance alone cannot justify getting back the suspended pension.

10.  A person is assumed to know the law.  In Ms. Smith’s case the March 2006 letter approving her taking up the post of DPC expressly drew her attention to section 11.  The letter clearly stated that her pension would be suspended pursuant to section 11.  I think that the letter could not have been plainer. 

11.  If Ms. Smith did not know or was in any doubt about what section 11 entailed, it was incumbent on her to have looked it up.   Presumably she did not so check.  Instead, by her outward behaviour, she gave every appearance of having fully consented to the suspension of her pension as a condition of her taking up the post of DPC immediately upon her retirement from the Police. 

12.  The world at large (including the Secretary) was fully entitled to take it for granted, from Ms. Smith’s ostensible behaviour, that she agreed with the suspension of her monthly pension as a condition for approving her service as DPC.  Indeed, it is the Secretary’s evidence that, had he known that Ms. Smith was not minded to consent to the suspension of her pension during service as DPC, the Secretary would not have approved her taking up that post.

13.  The foregoing is sufficient to dispose of this review.  But I should also note a number of worrying features to this case.

14.  First, at the ex parte leave stage, an Applicant for judicial review must make full and frank disclosure of all relevant circumstances.  The Court takes this obligation on an Applicant seriously.  The duty is not a light one.  Failure to comply with the alone may in appropriate cases lead to a judicial review being dismissed on that ground alone.

15.  In light of the subsequent affidavit evidence filed by the Secretary, Ms. Smith’s application does not seem to me to have been entirely full and frank.  Thus, in her leave application, Ms. Smith advanced a case that “the suspension of pension was not expressed as a condition for the approval of the Applicant to take up her present employment as [DPC]”.  The impression given by the leave application was that Ms. Smith was unaware, not just that her consent was required for the suspension of her pension, but also that the Secretary’s approval to her becoming DPC was subject to the suspension of her pension.

16.  But, in his rebuttal evidence, the Secretary drew the Court’s attention to press reports of a statement made by Ms. Smith in April 2006 when she first assumed the office of DPC.  Ms. Smith is reported as having said at the time that “her salary would be greatly reduced and her pension would also be suspended, hence saving public money”.  Ms. Smith apparently joked that she hoped it was not for this reason (as opposed to her abilities) that she was being appointed DPC.

17.  Faced with the Secretary’s evidence, Ms. Smith belatedly clarified what should have been made crystal clear at the leave stage, namely, that she had always known that her pension would be suspended while DPC.  The only thing (she says) that she did not know was the requirement of her consent.

18.  Second, under Order 1A, the parties and their lawyers are under a duty to assist the Court to facilitate the speedy resolution of disputes.  It is not conducive to that duty for parties or their lawyers to make allegations of fraud or similar impropriety unless there is a satisfactory evidential basis for so doing.  In the case of lawyers, there is also a professional obligation owed to the Court not to allege fraud or other similar impropriety without a sound basis.

19.  Here Ms. Smith and her lawyers alleged that Ms. Smith’s “consent” (if any) to the suspension of her pension “was procured by improper and undue influence exerted by [the Secretary]”.  There is not a shred of evidence to justify this accusation of undue influence and it should never have been made.  Nonetheless, the allegation was only abandoned at the start of today’s hearing.

20.  Third, judicial reviews must be taken out promptly, usually within 3 months of a relevant decision.

21.  Ms. Smith says that she only became aware “[i]n or about 2008” that her consent was required to the suspension of her pension.  Even if one accepts such evidence, it does not explain why some 6 months (at least) elapsed before Ms. Smith applied for judicial review in July 2009.  As I pointed out in Re Chan Yu Nam [2006] 1 HKC 392, time taken to consult lawyers or negotiate with a decision-maker for a change of heart are ordinary incidents to any litigation. By themselves the latter activities will not normally excuse delay in bringing judicial review. 

22.  No cogent explanation is given by Ms. Smith to explain why it took so long to seek the Court’s leave for a review.  Ms. Smith and her legal advisers should have moved with a sense of much greater urgency once the need for consent was realised in 2008.  Inquiries were made of the Secretary in early 2009.  If (as Mr. Nicholas Lau (appearing for Ms. Smith) submits) the Secretary’s replies were dilatory, much time already having elapsed since the original decision to suspend reflected in the Secretary’s March 2006 letter, one just does not hang around waiting to take out a leave application.   

23.  For all of the above reasons (in particular, long delay and a lack of substantive merit), Ms. Smith’s judicial review application is dismissed.

[The Court hears submissions on costs.]

24.  Given the 3 worrying features which I have identified, I think that costs should be awarded to the Secretary on an indemnity basis.