SIU CHI WAN VINCENT v. SECRETARY FOR THE CIVIL SERVICE

HCAL 137/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 137 OF 2005

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J U D G M E N T

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1.  The applicant applied for judicial review pursuant to leave granted for an order of certiorari quashing the decision of the Secretary for Civil Service (“Secretary”) contained in a letter dated 21 July 2005 dismissing him from the service of the Correctional Services Department (“CSD”).

Background

2.  The applicant was a Principal Officer of CSD.  He was stationed at Stanley Prison since 1999 until his dismissal.  By way of reference, a Principal Officer is equivalent to a Senior Inspector of Police.

3.  On 14 September 2004, the applicant was convicted on his own plea before a magistrate of the offence of a prescribed officer accepting an advantage without permission of the Chief Executive, contrary to s. 3 of the Prevention of Bribery ordinance (Cap. 201) (“POBO”).

4.  The conviction was based on the acceptance of an interest free loan of HK$200,000 from Madam Kwong, step mother of the Applicant’s colleague, Assistant Officer II YK Chan (“Officer Chan”) on 15 May 2003. 

5.  It happened that Madam Kwong’s own son, YH Chan (“Prisoner Chan”) was serving 10 years imprisonment in Stanley.  But the conviction was not based on this fact.

6.  The magistrate sentenced the Applicant to 4 months’ imprisonment suspended for 12 months.  He cited the aggravating factors that the Applicant was a member of the disciplined service, and the loan was solicited through his subordinate.

7.  On 29 April 2005, the Commissioner for CSD (“Commissioner”) wrote to the Applicant stating that a recommendation would be made to the Secretary as a delegate of the Chief Executive for his dismissal under rule 255B of the Prison Rules (Cap. 234A). 

8.  The letter of 29 April 2005 stated that the Commissioner took into the following considerations:

“(a)   As one of the disciplined services, the Department demands the highest standard of conduct and probity of its staff.  Given the adverse image on the department, a serious view is taken for any criminal conviction.  In the present case, while there is no evidence to show that you had a corrupt purpose, your act of accepting an advantage without permission in itself is a serious misconduct which is a marked departure from the standards of conduct and probity expected of a disciplinarian.  Having considered the punishments set out in Prison Rule 2545(b) and the offence of which you have been convicted, it is regarded that you should be removed from the service.

(b) While you have maintained a very effective work performance in the past years and may also encounter financial difficulties due to your family circumstances, these factors are merely mitigatory.  In recommending the appropriate punishment, reference has been made to the earlier disciplinary penalties in similar cases, a copy of which is at Annex B.  It is considered that you are more senior in rank than the pervious offenders, your culpability of this kind should therefore be greater than an officer of junior rank.  In addition, your sentence shows that your case is clearly more serious than other previous ones.

(c) Having carefully considered the award between dismissal and compulsory retirement, and weighed all factors including the circumstances of your case, it is recommended that you be dismissed from the service under Prison Rule 225B.”

And the Applicant was notified to make representations in writing.

9.  Annex B listed 4 previous cases of CSD officers dismissed upon conviction under s. 3 of POBO between 2002 and 2004.  The particulars included the ranks of Instructor to Assistant Officer I, the respective years of service, and the sentences from fines to Community Service Order.

10.  On the same day, the Commissioner sent a memo to the Secretary, repeating and enclosing the letter to the Applicant and Annex B, the charge sheet and Reasons for Sentence.  The memo added the relationship between Madam Kwong, Officer Chan and Prisoner Chan, that the Applicant was a supervisor of Officer Chan before but not a direct supervisor since 2002, and the Applicant’s admission under caution that he accepted the loan but denied knowledge of Madam Kwong’s son was a serving prisoner of Stanley.  The section on Observations and Recommendation repeated the considerations cited above.

11.  On 17 May 2005, Messrs. Lam & Partners, then solicitors for the Applicant, made representations by letter to the Chief Executive, summarized as follows:

(1) The case is not the worst of its kind and there was no corruption;

(2) The Applicant is not a direct and reporting officer for Officer Chan;

(3) The financial difficulties was due to fall in prices for properties purchased as residence of the Applicant and his parents rather than speculation;

(4) The failure to seek permission was due to negligence rather than deliberate concealment;

(5) The Applicant had received numerous appreciations from CSD and undertaken arduous tasks;

(6) The Applicant could not start any career afresh;

(7) Dismissed officers in the examples quoted are distinguishable as they might not have served for similarly long period or reached the same rank with equally outstanding performance as the Applicant.

12.  On 30 May 2005, the Deputy Secretary for Civil Service sent a file minute M3 to the Chairman of the Public Service Commission (“PSC”) seeking the advice of PSC on the Commissioner’s recommendation of dismissal of the Applicant. 

13.  M3 enclosed a draft minute to the Secretary (later to become M5).  The draft M5 stated the background and recommendations cited above, and representations of the Applicant.  It contained the considerations that:

“Our views

14.    We are conscious that throughout the course of the Magistrate’s hearing of [the Applicant’s] case under sections 3 and 12(2) of POBO, no evidence of corruption was adduced against him. That said, he had, by his own act, placed himself in a position of obligation to the lender and exposed himself (and the department) to potential accusations of bias in the discharge of official duties. The Administration has always taken a serious view of cases involving the acceptance of advantage by civil servants without permission. In the Applicant’s case, not only had he accepted an advantage without permission, the advantage (namely, a loan of $200,000) was solicited through a subordinate. As a CSD officer with some 30 years of service at the material time, [the Applicant] should be well aware of (a) the serious view that CSD management would take of such a breach; and (b) the high standard of conduct and discipline expected of an officer bearing his rank.

15.    Concerning the four precedents cited by CSD, the offenders were junior to [the Applicant] in terms of rank. While they were given a lighter sentence by the court (ranging from a fine of several thousand dollars to community service order), all of them were dismissed from the service upon conviction of the same offence under section 3 of POBO. In [the Applicant’s] case, the imprisonment sentence although suspended reflects the gravity of his offence.

16.    On the mitigating side, we note that [the Applicant] has a clear disciplinary record and satisfactory performance record. The added financial hardship that he might suffer as a result of his conviction is a consequence of his own misdeed. Taking into account the gravity of the offence; the high standard of conduct required of CSD officers; and the customary level of punishment in similar cases involving CSD staff, we agree with the Commissioner that [the Applicant] should be dismissed, rather than compulsorily retired.”

14.  On 29 June 2005, the Principal Assistant Secretary for Civil Service wrote to the Applicant replying to the representations of Lam & Partners.  The letter reiterated the seriousness of the offence and past record of the Applicant, the 3 considerations in the draft M5 cited above, and that the Applicant should be dismissed rather than compulsorily retired.  The Applicant was reminded of his right to put in further representations.

15.  On 13 July 2005, Messrs. Tang, Wong & Cheung, solicitors for the Applicant wrote to the Secretary.  The letter stated, inter alia, that:

(1) Not only was there no evidence of corruption, the case should be described as no element of corruption whatsoever was unearthed by the ICAC investigation.  Officer Chan was soon to retire and the loan to the Applicant had nothing to do with his official duties.

(2) Officer Chan gave evidence in his own trial which was accepted without challenge that:

(a)    Madam Kwong never told Officer Chan that Prisoner Chan was sent to prison, let alone Stanley;

(b)   Officer Chan did not know Prisoner Chan was imprisoned in Stanley when he assisted the Applicant to obtain the loan;

(c)   Officer Chan only knew that Prisoner Chan was imprisoned in Stanley when the latter was later moved to his stationed area.

(3) The Applicant did not solicit the loan but Officer Chan offered to help by arranging a loan by a family member (later identified to be Madam Kwong) when he heard the Applicant mentioned about his financial difficulties.

(4) The Applicant’s perception (rightly or wrongly) was that it was not necessary for him to seek permission in accepting the loan.

(5) The loan was no different from one from the bank where no permission is required.

(6) The legislative intent of s. 3 of POBO is to prevent any prescribed officer in soliciting or accepting an advantage for a corrupt or illicit purpose.

(7) While each case has to be judged by its merits and no case is identical to others, the 4 cases quoted by CSD are distinguishable.   There were more or less some elements of corruption in those 4 cases, and the Applicant was not really a senior officer of CSD.

(8) The case of an Assistant Commissioner who was convicted of an offence involving false document in the early 1990’s and was compulsorily retired with deferred pensions benefits was cited.

(9) The Applicant had been doing an outstanding job and more positive personal credentials were supplemented.

16.  On 20 July 2005, M5 was sent to the Secretary together with the further representations of the Applicant.  Paras. 14 to 16 in the draft M5 were re-numbered paras. 17 to 19 in M5, endorsed with the advise by PSC that the recommendation for dismissal be approved:

“Consultation with the Public Service Commission

20.    In accordance with the agreed procedures for disciplinary cases involving officers of the disciplined services under the respective Ordinances, the Public Service Commission has been consulted. The Commission advised that the recommendation to dismiss [the Applicant] should be approved.”

17.  The advise of the PSB was marginally noted as “M4”, but M4 was not disclosed to the Applicant either at the dismissal stage nor in the present proceedings.

Legal framework

18.  Under s. 20E of the Prison Ordinance (Cap. 234):

“Punishment of officers and other persons employed in the prisons guilty of a criminal offence

(1) If in criminal proceedings before any court-

(a)  an officer of the Correctional Services Department or other person employed in the prisons is found guilty of or pleads guilty to any criminal offence; or

(b)  the court finds that a charge against an officer of the Correctional Services Department or other person employed in the prisons in respect of a criminal offence has been proved against him,

and any appeal or other application for review of those proceedings is not allowed or is abandoned or withdrawn, the officer or person may be punished, in the case of a Superintendent or officer of higher rank, in accordance with the Public Service (Administration) Order and government regulations, and in the case of a Chief Officer or subordinate officer or other person employed in the prisons, in the appropriate manner provided in the rules made under section 25.

(2) …”

19.  Under rule 255B(4) of the Prison Rules:

“Punishment where criminal offence is committed

(1) …

(4) The Chief Executive may, after considering any representations made by the officer or person, award any one or more of the punishments he may award under rule 254(b) in respect of a disciplinary offence by an officer (other than an Assistant Officer) or other person employed in the prisons.”

20.  Under rule 254(b) of the Prison Rules, the punishment include dismissal and compulsory retirement with, without or with reduced pension or gratuities.

21.  The Applicant was a “subordinate officer” under the Prison Ordinance and any punishment of him upon conviction of an offence did not fall within the Public Service (Administration) Order.  The consultation with PSC was only voluntary pursuant to an agreed procedure for disciplinary cases involving officers of the disciplined services.

22.  M4 was not disclosed because s. 10 of the Public Service Commission Ordinance (Cap. 93) (“PSCO”) provides that:

“Reports and statements or other communications of Commission privileged

Any report, statement or other communication which the Commission may in the exercise of its functions or the discharge of its duties hereunder make to the Government of Hong Kong or to the Chief Executive or to the Chief Secretary for Administration or to the head of a department of Government shall be privileged in that its production may not be compelled in any legal proceedings unless the Chief Executive under the hand of the Chief Secretary for Administration consents to its production in such proceedings.”

Relevant principles

23.  In Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, the English Court of Appeal held that the court in judicial review proceedings is not a court of appeal, and can only interfere with an act of executive authority if it be shown that the authority has contravened the law.   Lord Greene MR referred to the errors of: (1) failing to take into account relevant consideration, and (2) “Wednesbury unreasonableness”.   On point (1), his Lordship said at p. 228:

“If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion it must have regard to those matters.  Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.”

And on point (2), at p.230:

“It is true to say that, if a decision on a competent decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.”

Applicant’s grounds

24.  Mr. Yim, counsel for the Applicant, abandoned the 1^st ground in the Amended Notice of Application (From 86A) that the Secretary had failed to consult PSB.

25.  The other grounds in Form 86A can be summarized as follows:

(1) Failure to disclose to the Applicant the advice given by PSB and failure to provide the Applicant with a reasonable opportunity to consider such advice and make representations against any unfavourable comments made by PSB;

(2) Failure to take reasonable steps to inquire into the full facts and circumstances of the case (including the transcript of Officer Chan’s trial), namely:

(a)    the Applicant was not Officer Chan’s direct supervisor;

(b)   the Applicant had no contact with Prisoner Chan;

(c)   the Applicant did not solicit the loan;

(3) Failure to take into account relevant factors of the full facts and circumstances of the 4 precedent cases and in particular whether the offences committed by those offenders related to their duties;

(4) No genuine exercise of discretion in failing to consider the alternative of compulsory retirement.

26.  Mr. Yim sought re-re-amendment of Form 86A to add the grounds of:

(1) Failure to inquire whether there were other punishment for officers convicted of same or similar offences;

(2) Wrongful assumption of dismissal under the 4 precedent cases represented the “customary level” of punishment.

27.  The parties agreed that the proposed re-re-amended grounds should be heard de bene esse in order to determine whether leave should be granted to include them.

28.  At the hearing, Mr. Yim also sought to argue that the Secretary should have sought on his own motion the consent of the Chief Executive to disclose the minute M4 under s. 10 of PSCO pursuant to the duty of candour.

Respondent’s case

29.  Mr. Shum, for the Respondent, submitted as follows:

(1) The decision of dismissal was based on the gravity of the offence (on the basis of lack of any evidence of corruption) and also the circumstances of the case including the potential accusations of bias against the Applicant as well as CSD in the official discharge of their duties;

(2) The 4 precedents were not guidelines for sentence but only for reference and/or counter-check for consistency;

(3) The is no duty to exhaust all precedents available and any proposition to the contrary is unsupported by authorities;

(4) The general duty to make disclosure is subject to the express provision to the contrary under s. 10 of PSCO;

(5) All materials upon which the dismissal was based had been disclosed to the Applicant and M4 is only the advice of PSC endorsing the recommendation of the Commissioner;

(6) As a matter of common sense, there could have been no other conclusion on the recommendation and there is no risk of prejudice on the non-disclosure of M4;

(7) There is no unfairness in the punishment nor substantial prejudice as the Applicant has made full representations and judicial review should be refused in the exercise of the discretion.

Discussion

(1) Failure to disclose the PSC advice

30.  Mr Yim referred to R v London Borough of Camden ex parte Paddock & ors (Transcript 8 September 1994), where the applicants were licensed street traders.  They were alleged to have been corruptly paying money to the Market Inspectors when they used a pitch for a day, instead of buying tickets from the Council and handing one to the Inspector.  They appeared before the hearing of the Council’s licensing sub-committee and their registration were cancelled.   They applied for judicial review, complaining, inter alia, of refusal of information on part of the evidence against them.  Sedley J dismissed the application, but the Court of Appeal allowed the appeal on the ground of non-disclosure. 

31.  Sedley J stated at p. 8 of the Transcript:

“The principle that a decision-making body should not see relevant material without giving those affected a chance to comment on it and, if they wish, to controvert it, is fundamental to the principle of law (which governs public administration as much as it does adjudication) that to act in good faith and listen fairly to both sides is ‘a duty lying upon everyone who decides anything’ (Board of Education v Rice [1911] AC 179, per Lord Loreburn LC).  It is neither technical nor unduly onerous for decision-makers in every branch of public life to understand and work by this principle, and to appreciate that it means in turn that they should not receive relevant material from outside sources without the knowledge of those affected.”

And at pp. 9-10:

“The essence of this aspect of fair procedure (see TA Miller Ltd v Minister of Housing and Local Government [1968] 2 ALL ER 633, 644; [1968] 1 WLR 992) is that the person at risk should have an opportunity to comment on materials being considered by the decision-maker and to contradict them.”

And Slaughton LJ expressed similar views at p. 6 of the Transcript of the Court of Appeal (31 October 1995):

“It is a cardinal principle of fairness and of justice that those who are accused of wrongdoing before any kind of judge should know the evidence against them.  There are nolettres de cachet allowed in English law except in very rare cases where national security is involved. There is authority for that in Kanda v Government of the Federation of Malaya [1962] AC 322; [1962] 2 WLR 1153,where Lord Denning, delivering the advice of the board, said at page 337 of the former report:

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn LC in Board of Education v Rice down to the decision of their Lordships’ Board in Ceylon University v Fernando. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other: The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so.”

At a lesser level in the judicial hierarchy Megaw J said in Government of Ceylon v Chandris [1963] 2 QB 327; [1963] 1 Lloyd’s Rep 214 at 225 of the latter report:

“It is, I apprehend, a basic principle, in arbitrations as much as in litigation in the Courts (other, of course, than ex parte proceedings), that no one with judicial responsibility may receive evidence, documentary or otherwise, from one party without the other “party knowing that the evidence is being tendered and being offered an opportunity to consider it, object to it, or make submissions on it. No custom or practice may override that basic principle.”

Every lawyer should know that.”

32.  Mr. Yim also referred to R (on the application of Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409; [2002] All ER (D) 450, where the case was concerned with the allocation of fishing rights in Antarctic waters under the Fisheries (Conservation and Management) Ordinance 1993 of the British overseas territories of South Georgia and South Sandwich Islands.  The claimant had for some years been granted the licence but was no longer so.  He applied for judicial review and the relevant decisions were quashed.  The defendant appealed.  On the final day of the appeal hearing, the defendant disclosed certain previously undisclosed documents relating to the decision making process.  In dismissing the appeal, Law LJ stated:

“50.   Mr Parker [for the defendant] submits, correctly, that there is no duty of general disclosure in judicial review proceedings.  However, there is – of course – a very high duty on public authority respondents, not the lease central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide.  The real question here is whether in the evidence put forward on his behalf the Secretary of State has given a true and comprehensive account of the way the relevant decisions in the case were arrived at.  If the court has not been given a true and comprehensive account, but has had to tease the truth out of late discovery, it may be appropriate to draw inferences against the Secretary of State upon points which remain obscure: see Patfield [1968] AC 997, per Lord Upjohn at 1061G – 1062A.

…

55.    … On this matter of disclosure we have, in my judgment, to bear in mind that what matters is the effect of any failure on our appreciation of the overall merits of the case; we are not concerned to discipline or penalise the Secretary of State.  Even so, I am constrained to say that the Secretary of State in this case has fallen short of those high standards of candour which are routinely adhered to by government departments faced with proceedings for judicial review.”

And in Chu Ping Tak v Commissioner for Police [2002] 3 HKLRD 679, the applicant was a police officer who accumulated debts and had to file for bankruptcy.   He was charged with “conduct calculated to bring the public service into disrepute” under the Police (Discipline) Regulation (Cap. 232A) and was dismissed with immediate effect.  He applied for judicial review on the ground of, inter alia, procedural impropriety that certain “defaulter report” concerning alleged past conduct of the applicant and read by the Deputy Commission in dismissing the Applicant’s appeal should have been disclosed to him.  Deputy Judge A Cheung (as he then was) quashed the decision in which process the non-disclosure occurred.  His Lordship said that:

“59.   In my judgment, the position is as follows. Faced with a complaint based on non-disclosure of documents or material, the Court’s task in a judicial review is, first, to determine whether as a matter of fairness and natural justice, the documents or material ought to have been disclosed to the applicant by the decision-making body so as to afford the applicant an opportunity to respond to the documents or material. At this first stage, it is not necessary for the applicant to establish prejudice as a ground of judicial review: Boddington v British Transport Police [1999] 2 AC 143 at p.174D-E (cited with approval in Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653 at p.663 para.40).

60.    Secondly, if the Court comes up with an affirmative answer to the first question, it should proceed to the second stage of the matter by considering whether to exercise its discretion to quash the decision of the decision-making body below or grant some other appropriate relief, if any. At this second stage, the fact that there has been (ex hypothesi) a breach of procedural fairness is, of course, by itself a relevant and indeed a weighty consideration to be taken into account. However, at this second stage, the absence of prejudice, if such is the case, is also a relevant factor to be taken into account: Boddington v British Transport Police [1999] 2 AC 143; and Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653. In fact, as is demonstrated by the actual decision in Leung Fuk Wah v Commissioner of Police, if the non-disclosure did not produce a substantial prejudice to the applicant whatsoever, it would seem that the discretion of the Court would most likely, if not inevitably, be exercised against the grant of any relief: See p.668 para.76 of the judgment, where the Court of Appeal observed that:

‘Judicial review being a discretionary remedy, if Mr Leung does not, as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashing the decision.’

…

62.    However and in any event, a distinction should be drawn between the total absence of substantive prejudice on the one hand and the presence of a risk of prejudice on the other. As mentioned above, in the earlier Court of Appeal decision in Chan Tak Shing v Chief Executive of the HKSAR [1999] 2 HKLRD 389, the Court of Appeal adopting what the Privy Council had said in Kanda v Malaya [1962] AC 322 held that the Court would not inquire whether the material not disclosed did work to the applicant’s prejudice; it was sufficient that it “might do so”; the Court would not go into the likelihood of prejudice; and the “risk” of it was enough. Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653 is a case where it can be demonstrated to the satisfaction of the Court that no prejudice whatsoever was done to the applicant by the non-disclosure. In my judgment, if that can be done, then most likely (if not as a matter of certainty), the Court would refuse to grant the discretionary remedy. However, if that cannot be done so that there is a “risk” of prejudice having been done to an applicant by the non-disclosure, this would seem to be an important factor in favour of the Court’s exercising its discretion to quash the decision in question, particularly if one bears in mind that ex hypothesi, there was a breach of the rules of natural justice which, as I said above, is by itself a weighty consideration to be taken into account in the first place.

…

64.    One final observation is this: Given the above analysis, cases where there has been established a breach of the rules of natural justice, and yet the Court refuses as a matter of discretion to grant any relief must be ‘rare’…”

33.  Mr Yim submitted that without disclose of the advice of PSC, it is not known what has transpired between the PSC and the Secretary, and there is a risk that the Applicant might be prejudiced by any adverse comment.  The Court is not in a position to order disclose, hence, the Secretary, in fulfilment of her duty of candour, should have sought the consent for the disclosure of the privileged materials.  Since there is failure to do so, the decision should be quashed.

34.  I agree with the principle that the decision maker must disclose the materials or evidence relied on against the person affected in order that he may respond to them. 

35.  Mr. Shum submitted that the situation is different in this case as s. 10 of PSCO provides the complete answer where the legislature has in its wisdom provided for the protection of privilege.

36.  Mr. Yim argued that the legislative intent of s. 10 of PSCO was only to preserve privilege when PSC is advising on civil service wide issues, as opposed to cases concerning individual officers.  I could see no such distinction.

37.  Regardless of whether s. 10 does provide the complete answer, I do not see any substantial prejudice to the Applicant by reason of the non-disclosure of the PSC advice in the circumstances of the present case.

38.  The advice sought from PSC was based on the facts and materials contained in the draft M5.  Such facts and materials were disclosed to the Applicant and full representations were made by the Applicant’s lawyers.  There could have been no risk of prejudice of any adverse comments outside the considerations in the draft M5.  In the circumstances, I do not see what adverse comments PSC could possibly have given other than to endorse the recommendation of the Commissioner. 

39.  Hence, I do not see any unfair prejudice on the ground of non-disclosure of the PSC advise so that the decision should be quashed.

(2) The Secretary’s considerations

40.  It is clear from M5 that the advise sought from PSC and recommendation to dismiss the Applicant was based on the seriousness of the offence while the Applicant had denied knowledge of Prisoner Chan was the son of Madam Kwong (para. 6) and there was no evidence of corruption (para. 17/para. 14 in draft M5 cited above).

41.  The considerations included that the advantage was solicited through a subordinate and the Applicant, a senior and long serving officer of CSD, a disciplinarian with expectant high standards of probity, had placed himself in a position to the lender and exposed himself (and CSD) to potential accusations of bias in the discharge of official duties. 

42.  Mr. Yim pointed out that the Applicant did not solicit the loan as it was first mentioned by Officer Chan when the Applicant mentioned his financial difficulties and he merely took up the offer.  Be that as it may, the loan was solicited by Officer Chan, a subordinate, and the Applicant accepted the loan and owed Officer Chan, if not also the lender, a favour given at times of financial difficulties.

43.  Granted that no favour was actually returned, either to Officer Chan or Prisoner Chan or Madam Kwong, M5 stated that the author was conscious of the fact that no evidence of corruption was adduced against the Applicant.  The purpose of the s. 3 offence is to prevent an officer from accepting an advantage even when there is no evidence of corruption so that the officer is not placed in the difficulty of owing anyone favours.  The fact that offence was less serious than the offence of bribery under s. 4 of POBO did not mean that it was not serious in itself, especially that the advantage was arranged though a subordinate, albeit not a direct subordinate at the time.  I cannot see any unreasonableness in the Wednesbury sense if the Commissioner, PSC and the Secretary were to view the matter seriously, taking into account potential accusations of bias both against the Applicant and the CSD as well.

44.  Officer Chan gave evidence that he himself did not know Prisoner Chan was serving a sentence or was an inmate in Stanley at the time of the loan. The magistrate said in his oral reasons for verdict that he could not say that was not possible, and Officer Chan was given the benefit of the doubt.  Hence, the magistrate did not make a finding that Officer Chan did or did not know Prisoner Chan was in Stanley. 

45.  In any case, the dismissal was not based on any evidence of corruption on the part of the Applicant.

(3) 4 precedent cases

46.  In Cheung Koon Kit v Commissioner of Correctional Services of HKSAR HCAL 108/2003 (28 July 2004), the applicant, an Assistant Officer II of CSD, smuggled 2 packets of cigarettes for a prisoner and was convicted of the offence of introduction of unauthorized articles into prison under s. 18 of the Prison Ordinance.  He sought judicial review on the decision of compulsory retirement.   He argued that the Commissioner failed to take into account relevant precedents before arriving at his decision.  Hartmann J said (at para. 34 of the judgment):

“It may It may be that, in prudence, a decision-maker who is required to decide on a penalty seriously affecting an individual’s future will, if possible, look to other penalties imposed in similar cases. But I do not see that a decision-maker is under any obligation in law to do so. The issue, it seems to me, is the nature of the penalty itself. If it is shown, by reference to earlier penalties, that the penalty is irrational then the court may well set that penalty aside as being unlawful.”

47.  In the present case, the Secretary did have 4 precedents.  The complaint is that they were incomplete, and the Secretary assumed that they represented the customary level of penalty.

48.  As stated by Hartmann J, the issue is the nature of the penalty itself. 

49.  It is obvious from reading M5 that the decision on dismissal was based on the gravity of the offence.  The Secretary took a serious view of the conviction, because the Appellant was in a position to enforce discipline and a high standard of conduct was expected of him, and the loan was offered by a subordinate.   The fact that reference were not made to the circumstances of the 4 precedents shows that they were not treated as legal precedents, but simply to illustrate that officers of lower ranks receiving lighter sentence upon conviction of the same offence were also dismissed in the past.  The phrase of “customary level of punishment” might perhaps have been infelicitously used, but it did not detract from the substantial consideration mentioned.

50.  The choice between dismissal and compulsory retirement was properly considered by PSC and the Secretary.  I cannot see for once that the authorities, experienced in the handling disciplinary matters concerning civil servants, could have failed to fully appreciate the consequences.

51.  Hence, I do not find that the Secretary had failed to take into relevant consideration nor was biased in only referred to the 4 precedents.

(4) Substantial prejudice

52.  In George v Secretary of State for the Environment & anor (1979) 38 P&CR 609, 77 LGR 689, 250 EG 339, Lord Denning said (at p. 8):

“… I also accept the submission that there can be no such thing as a ‘technical’ breach of the rules of natural justice, since the concept of natural justice is not concerned with the observation of technicalities but with matters of substance. 

The question is whether, as a result of any failure in procedure or the like, there was a breach of natural justice.

… One should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error that has been made…”

53.  In Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653, Cheung JA said (at para. 76):

“Judicial review being a discretionary remedy, if [the applicant] does nor, as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashing the decision…”

And in Cheung Koon Kit (ob. cit.), Hartmann said at (para. 12):

“In looking at issues of procedural fairness … the test is not simply one of identifying a procedure error.  The error must, or course, be material.  In addition, it must create an actual unfairness.  It has been said on many occasions that unfairness does not exist in a vacuum.”

54.  I have already held that the Applicant had had the opportunity of making full representations, and the non-disclosure of the advice of PSC did not result in any substantial unfairness to the Applicant.

55.  Moreover, the reference of only 4 precedents did not result any substantial prejudice.  The Applicant had been given the opportunity to make full representations, and did submit on every conceivable aspects of the case, including the precedent of an Assistant Commissioner convicted of using false document.  The consideration between dismissal and compulsory retirement was alive at the decision making process, and the decision cannot be said to be one that no reasonable authority properly advised of the circumstances could have made.

56.  Even if there were any procedural irregularity, judicial review would be refused in the exercise of the discretion.

Conclusion

57.  In the premises, the application for judicial review is refused. 

58.  Accordingly, the re-re-amendment is also refused.

Costs

59.  I make an order nisi that the Applicant do pay the costs of the application to the respondent, to be taxed if not agreed.

60.  Lastly, I wish to thank Mr. Yim and Mr. Shum for their helpful submissions.