KEITH RATCLIFFE v. THE SECRETARY FOR THE CIVIL SERVICE AND ANOTEHR

1998 HCAL No. 43

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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Introduction

1. The Applicant joined the Royal Hong Kong Police Force in 1966. By March 1996, he had reached the rank of superintendent. That month, he was informed that allegations of sexual harassment had been made against him. Disciplinary proceedings followed, and in April 1998 the Secretary for the Civil Service decided that the Applicant should be compulsorily retired from the Police Force. The Applicant now applies for judicial review of that and associated decisions. I shall refer to the Applicant throughout this judgment as Supt. Ratcliffe, even though the making of this application for judicial review has not had the effect of temporarily reinstating him.

The facts

2. The nature of the disciplinary proceedings. The rank which Supt. Ratcliffe had attained when the disciplinary proceedings were commenced against him meant that the disciplinary regime which related to him was that provided for by the Colonial Regulations, rather than the Police (Discipline) Regulations. Since the Secretary for the Civil Service thought that the misconduct alleged against Supt. Ratcliffe may have been serious enough to warrant his compulsory retirement, the disciplinary proceedings were conducted under reg. 57 of the Colonial Regulations. Pursuant to the Disciplinary Proceedings (Colonial Regulations) Regulations, an investigating committee was appointed. It was required to conduct an investigation into Supt. Ratcliffe's alleged misconduct, and then to make a report which contained

(a) such findings of fact as it considered relevant, and

(b) its opinion as to whether or not the facts amounted to misconduct.

If, after such investigation, the Secretary for the Civil Service was of the opinion that Supt. Ratcliffe had been guilty of misconduct, he could inflict such punishment upon Supt. Ratcliffe as might seem to him to be just.

3. The allegations. The allegations made against Supt. Ratcliffe were contained in a document headed "Statement of Alleged Misconduct". It read:

"You, Keith RATCLIFFE, Superintendent of Police of the Royal Hong Kong Police Force, misconducted yourself while you were employed as a Superintendent of Police in the Royal Hong Kong Police Force in that -

(a) on 24th August 1995, while travelling in a Police vehicle with [the complainant], an Executive Officer working under your command, and other officers, you sexually harassed [the complainant] by engaging in unwelcome conduct of a sexual nature namely lifting her skirt, touching her thigh and making indecent and offensive remarks, thereby offending, humiliating or intimidating her contrary to Headquarters Order No. 18 of 1995 Part One;

(b) on a date unknown between 24th August 1995 and 20th September 1995 in the District Registry of Central District Police Headquarters, you sexually harassed [the complainant], an Executive Officer working under your command, by engaging in unwelcome conduct of a sexual nature namely catching hold of her left hand and asking her to put it inside her shirt, thereby offending, humiliating or intimidating her, contrary to Headquarters Order No. 18 of 1995 Part One;

(c) on 20th September 1995 in the District Executive Officer's office, Central District Police Headquarters you sexually harassed [the complainant], an Executive Officer working under your command, by engaging in unwelcome conduct of a sexual nature namely touching her back and talking in detail as to whether or not a prostitute could be a virgin, thereby offending, humiliating or intimidating her, contrary to Headquarters Order No. 18 of 1995 Part One."

The document referred to the complainant by name, but it is unnecessary for me to do so in this judgment. I shall simply refer to her as the complainant. She was an executive officer, who had been transferred to Central District Police Headquarters where Supt. Ratcliffe was based ten days or so before the first incident.

4. The Headquarters Order. There has been a greater awareness in recent years about the scourge of sexual harassment. Accordingly, in March 1995, a new Headquarters Order (No. 18 Part One) was issued relating to it. Sexual harassment was defined in paras. 3 and 4 of the Order as follows:

"3. A person sexually harasses a woman if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to her; or

(b) engages in other unwelcome conduct of a sexual nature in relation to her,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated.

4. The 'conduct of a sexual nature' mentioned in para. 3(b) above includes making a statement of a sexual nature to a woman, or in her presence, whether the statement is made orally or in writing."

This definition follows, almost word for word, the definition of sexual harassment in the Sex Discrimination Ordinance (Cap. 480).

5. The result of the investigation. The Investigating Committee held hearings over two days in March 1997. In September 1997, the Investigating Committee submitted its report to the Secretary for the Civil Service. The report concluded that the facts necessary to support the charges of sexual harassment in the first two incidents had not been established. However, the report found that the facts necessary to support the charge of sexual harassment in the third incident had been established. The Investigating Committee was of the opinion that the facts which had been established in the third incident amounted to misconduct. In due course, the Civil Service Bureau sought the views of the Commissioner of Police as to how Supt. Ratcliffe should be dealt with. Different views were expressed internally on that issue. One view was that Supt. Ratcliffe should be reprimanded. Another view was that he should be reduced in rank, unless the financial impact of such a course would be more adverse to him than his compulsory retirement. Eventually, the Commissioner of Police expressed the opinion that Supt. Ratcliffe should be compulsorily retired with full pension benefits. In due course, the Secretary for the Civil Service decided that the facts which had been established amounted to misconduct, and that Supt. Ratcliffe should be compulsorily retired with a deferred pension.

6. The decisions challenged. Three decisions are challenged in these proceedings:

(i) the finding of the Investigating Committee that the facts relating to the third incident had been established and its opinion that those facts amounted to misconduct,

(ii) the decision of the Secretary for the Civil Service that the facts which had been established amounted to misconduct, and

(iii) the decision of the Secretary for the Civil Service that Supt. Ratcliffe should be compulsory retired.

The amenability of the finding and opinion of the Investigating Committee to judicial review

7. Mr. Nicholas Cooney for the Respondents contended that the finding and opinion of the Investigating Committee are not amenable to judicial review. They were merely steps in the process which led to the ultimate decision of the Secretary for the Civil Service that Supt. Ratcliffe had been guilty of misconduct and should be compulsorily retired from the Police Force. I cannot go along with this argument. The finding as to what facts had been established was not one which the Secretary for the Civil Service was ever likely to review. The investigation of the facts by the Investigating Committee was a time-consuming exercise. It involved hearing evidence, reading documents and listening to arguments. What was the point of establishing a committee to do all that if, without hearing the evidence or reading the documents or listening to the arguments, the Secretary for the Civil Service could have proceeded on the basis that the facts were not as the Investigating Committee had found them to be? If the Investigating Committee's finding as to what facts had been established is not amenable to judicial review, the correctness of the facts which the Secretary for the Civil Service took into account can never be the subject of judicial review.

8. The amenability to judicial review of the Investigating Committee's opinion that the facts amounted to misconduct is not so clear. It was simply an expression of opinion which the Secretary for the Civil Service was entirely free to accept or reject. However, judicial review

"will lie where there is some preliminary decision, as opposed to a mere recommendation, which is a prescribed step in a statutory process which leads to a decision affecting rights, even though the preliminary decision does not immediately affect rights itself": Wade, "Administrative Law", 7th ed., p.634

In my view, the same principle applies to a prescribed step in a disciplinary process. Although the Secretary for the Civil Service was free to accept or reject the opinion of the Investigating Committee as to whether the established facts amounted to misconduct, he would inevitably attach great weight to its considered opinion. If that opinion was flawed, that might invalidate any decision which the Secretary for the Civil Service had reached in ignorance of the fact that it was flawed. It follows that both the Investigating Committee's finding and its opinion are amenable to judicial review.

The nature of the charge

9. Mr. S. H. Kwok for Supt. Ratcliffe contended that, even though three separate incidents were particularised in the charge, the charge was a single charge of misconduct. If Supt. Ratcliffe was to be found guilty of misconduct, the facts relating to all three separate incidents had to be established. Since the facts relating to two of the incidents had not been established, the Investigating Committee could not have expressed the opinion, and the Secretary for the Civil Service could not have found, that the facts which had been established amounted to misconduct. That is not how I read the Statement of Alleged Misconduct. I read the Statement of Alleged Misconduct as alleging that Supt. Ratcliffe misconducted himself on three occasions. In other words, he faced three separate charges, each of which was alleged to amount to misconduct.

10. The point is then taken, though, that Supt. Ratcliffe (and the officer who represented him at the hearing before the Investigating Committee) were never aware of that. Since someone who faces disciplinary charges is entitled to know the nature of the charges against him, the hearing before the Investigating Committee was procedurally unfair in that respect. Reliance is placed on the following extracts from the transcript of the hearing:

"Chairman: Now I shall ask you separately as to whether you admit or deny the three charges that had been made against you. The first one, (a), do you ...

Friend: Excuse me, there is only one charge. That is the record of misconduct.

Chairman: OK, I will read it as three separate incidents."

A little later, the following exchange occurred:

"Friend: Sorry, this is just one charge of misconduct. The importance here is that to prove that charge of misconduct you have to prove all parts, not part of it.

Chairman: Yes, your statement will be duly recorded."

And on occasions the Chairman of the Investigating Committee referred to "the charge" in the singular.

11. These extracts suggest that Supt. Ratcliffe and his representative believed (albeit erroneously) that he faced one charge of misconduct, and that to be found guilty of misconduct, the facts relating to all three separate incidents had to be established. However, it would have been apparent to them that that was not the way the officer assisting the Investigating Committee saw things, because he began his opening address by saying:

"I propose to you that Mr. Ratcliffe is guilty of misconduct on 3 occasions..."

And although the Chairman of the Investigating Committee never told Supt. Ratcliffe and his representative that their view of the charges was incorrect, they nevertheless dealt with the allegations on the basis that Supt. Ratcliffe was facing three separate charges, because at the conclusion of his closing address, Supt. Ratcliffe's representative asserted that Supt. Ratcliffe

"is charged with misconduct on the grounds he sexually harassed [the complainant] on 3 occasions."

12. However, even if Supt. Ratcliffe and his representative were unaware of the nature of the charges, and what had to be proved, would they have argued his case any differently? Mr. Kwok says that they would have done. Believing that the allegation was that the three incidents amounted to a pattern of sexual harassment (whether or not each incident taken by itself amounted to sexual harassment), they did not seek to challenge the complainant's version of events. They merely sought to explore the surrounding circumstances to demonstrate that a pattern of sexual harassment had not been established.

13. I cannot go along with this argument for two reasons. First, there is no evidence from Supt. Ratcliffe or his representative that their strategy was as Mr. Kwok contends it to be, or that their strategy would have been different if they had been alerted to the fact that their reading of the charges was wrong. Secondly, the transcript contradicts Mr. Kwok's assertion about the strategy which he says they adopted. The transcript shows that Supt. Ratcliffe's representative cross-examined the complainant about her version of the incidents themselves (and not simply the surrounding circumstances), and put Supt. Ratcliffe's version of events to her. It shows Supt. Ratcliffe giving evidence in support of his version of events. Indeed, that is what one would have expected. Even if Supt. Ratcliffe and his representative believed that the allegation was that the three incidents amounted to a pattern of sexual harassment (whether or not each incident taken by itself amounted to sexual harassment), they would still have challenged the complainant's version of each incident if it conflicted with Supt. Ratcliffe's recollection of the incident. Indeed, in his closing address, Supt. Ratcliffe's representative addressed each of the three incidents, not on the basis that a pattern of sexual harassment had not been established, but on the basis that none of the incidents amounted to sexual harassment.

The third incident

14. The background to the third incident. There was no real dispute about the circumstances which gave rise to the third incident. In the course of an internal meeting, a discussion took place as to the guidance which should be given to police officers who visit vice establishments in plain clothes in order to gather evidence relating to the sexual services on offer. The guidance which it was decided to give was as follows. Although it may be necessary for officers, in order to gather the necessary evidence, to engage in sexual acts in the line of duty, officers should not do anything which exposes themselves to the risk of contracting sexually transmitted diseases. That meant that they should under no circumstances engage in sexual intercourse or oral sex. The complainant had attended the meeting in a secretarial capacity, and was required to prepare the minutes of the meeting.

15. The minutes which she prepared purported to include the guidance which had been discussed. However, the relevant part of the minutes prepared by her read:

"Action Against Licenced Massage Establishment DSDS [District Special Duty Squad] Officers should be reminded that they are not to go through with the entire sexual transaction, when performing duties in massage parlours, even at the risk of losing the case."

This was regarded as an inadequate minute of what had been decided should be the guidance to be given. Supt. Ratcliffe was instructed by a more senior officer to amend the draft, to explain to the complainant why her draft had had to be amended, but to reassure her that the need to amend the draft did not imply any criticism of her.

16. The complainant's account. The account which the complainant gave of the incident was as follows. She was sitting at her desk in her office, with her back against the wall, when Supt. Ratcliffe came in. She stood up. Supt. Ratcliffe came up to her, and began to explain to her the amendments which had had to be made to her draft of the minutes and why they were necessary. She said that no amendments were required because the minutes had already been signed and cleared by the District Commander herself before she had gone on leave. Supt. Ratcliffe was unnecessarily close to her, and was blocking her way out of the office. As he was talking to her, he began to stroke her back. It lasted for only a second or two, because she immediately moved back. She told him that she understood the differences between her draft and the amended version prepared by Supt. Ratcliffe. Despite that, he continued to press the point, and eventually asked her whether she realised that a virgin could be a prostitute. She regarded that as the last straw. She did not want there to be any misunderstanding about what was happening, and did not want anyone to think that she was over-reacting. For that reason, she put a tape into the tape recorder which was nearby, and began to record what was then said.

17. That tape was eventually transcribed, and the transcript of the taped conversation was read by the Investigating Committee. The transcript shows that she asked Supt. Ratcliffe to repeat the question he had just asked her, and he asked her again whether a virgin could be a prostitute. It shows that he went on to explain why a virgin could be a prostitute - namely, because prostitutes can offer sexual services other than sexual intercourse, and he referred to the kind of services he had in mind, including masturbation, oral sex and anal intercourse. He did so despite the fact that she had made it clear that the use of explicit sexual language disturbed her. The transcript also shows that the complainant asked him whether it had been necessary for him to make his point by "touching" her back. His reply was:

"No, it wasn't... well if I offended you I'm very sorry..."

Finally, the complainant told the Investigating Committee that, after this conversation had been recorded, Supt. Ratcliffe told her not to tell anyone about the tape or play it to anyone, and that if she did, she would have to bear the consequences. She asked him what he meant by that, and he said: "You know".

18. Supt. Ratcliffe's account. Supt. Ratcliffe's account of the incident was as follows. He had visited her the previous day and given her the amended version of the minutes which he wanted her to issue. She had said that she had not made any mistake, and since he thought that they might be getting into an argument he left the amended version with her. However, he was aware of what he had been told to speak to her about, and therefore he returned to her office on the day in question. He admitted that they were standing close to each other, but that was because her office was small. He asked her whether she had issued the amended version which he had given her the previous day. She replied that she had not, because there had not been anything wrong with her draft. It was necessary for him to explain at some length why her draft had been unsatisfactory, because she continued to deny that her draft needed correcting. He admitted that he became irritated that she could not see why her draft was inadequate.

19. At one stage, the complainant pushed her chair back, and his hand accidentally touched her back. She recoiled, moved to the back of the desk and said: "This is sexual harassment". Supt. Ratcliffe thought of leaving then, but decided not to do so, because if he did so it might be thought that he was accepting that he had sexually harassed her. That was when she got the tape recorder out, and began to record the rest of the conversation. Surprisingly, Supt. Ratcliffe was never asked whether he agreed or disagreed with her evidence about what he had said to her after she had recorded their conversation, though in the course of questioning the complainant, Supt. Ratcliffe's representative had put to her that that part of her evidence was untrue.

20. The facts found by the Investigating Committee. In its report, the Investigating Committee concluded

"that the taped conversation contains utterances that were made by [the complainant] while the material act still dominated her mind (and is therefore relatively free from the danger of inaccuracy or concoction)."

By that, I take the Investigating Committee to have meant that the complainant did not modify what she would otherwise have said simply because the conversation was now being recorded. In addition, the Investigating Committee rejected the possibility that the complainant had reacted as she did out of embarrassment over the inadequacy of her original draft. The Investigating Committee expressed itself as "more minded to think" that her reaction, which it described as "close to hysterical", was triggered by what Supt. Ratcliffe had said and done.

21. The Investigating Committee concluded that the amended version of the minutes which the complainant was being required to issue should have been "reasonably self-explanatory" to the complainant. One or two sentences (which brought out the point that sexual activity could take many forms other than sexual intercourse) would have been sufficient to have got the message across. In my judgment, it was clearly open to the Investigating Committee to reach that conclusion. The Investigating Committee was entitled to conclude that Supt. Ratcliffe had spoken to the complainant on a topic with which she was not comfortable at unnecessary length and in unnecessary detail. On the other hand, I would not have used some of the language which the Investigating Committee used to characterise what Supt. Ratcliffe had said and done. For example, I would not have described him as "drilling" the complainant, nor would I have characterised what he said to her as "verbal abuse". Like the Investigating Committee, I listened to the tape which the complainant had made. Although the Investigating Committee did not refer to it in its report, Supt. Ratcliffe did not raise his voice and his tone was in no way hectoring.

22. The facts which the Investigating Committee did not find. However, there were three important areas in which the Investigating Committee did not make any findings at all. First, it made no finding as to whether "a reasonable person, having regard to all the circumstances, would have anticipated that [the complainant] would be offended, humiliated or intimidated". The importance of this element in the definition of sexual harassment cannot be overstated. It is designed to prevent a person being found guilty of sexual harassment when harassment exists in the mind of the victim only. The conduct complained of has to be seen by the reasonable onlooker as likely to result in the complainant being offended, humiliated or intimidated. I have not overlooked the fact that the Investigating Committee concluded in para. 46:

"In our view, the verbal abuse and the touching of [the complainant's] back are clearly unwelcome conduct of a sexual nature as defined in Headquarters Order No. 18 of 1995 Part One."

Mr. Cooney submitted that since the Investigating Committee expressly had the definition in the Headquarters Order in mind, the Investigating Committee must have been finding that a reasonable person would have anticipated that the complainant would be offended, humiliated or intimidated. I disagree. The Investigating Committee may simply have been referring to the definition in para. 4 of the Headquarters Order of what amounts to conduct of a sexual nature.

23. Secondly, the Investigating Committee made no findings about the brief physical contact between the complainant and Supt. Ratcliffe. It referred to Supt. Ratcliffe having touched the complainant's back rather than stroking it, but it did not state whether it found that the touching was accidental or deliberate, and if it was deliberate, whether it found that it was sexual in nature. Again, I do not overlook the Investigating Committee's conclusion in para. 46 that "the verbal abuse and the touching ... are clearly unwelcome conduct of a sexual in nature", but in order to conclude that the touching was sexual in nature, the Investigating Committee had to decide whether it was deliberate and why it was done. The Investigating Committee may simply have been saying that the complainant thought that the touching was deliberate and was sexual in nature, but if that was the effect of its finding, the Investigating Committee ignored the element of objectivity which the concluding words of para. 3 of the Headquarters Order required it to consider.

24. Thirdly, the Investigating Committee made no finding as to why Supt. Ratcliffe dealt with the need for the amendments in such unnecessary detail and at such unnecessary length. Was it because he knew that the subject-matter of the discussion was distasteful to the complainant and he was enjoying the distress which she plainly felt? Or was it simply because he was the kind of man who liked to make things clear, even if it meant being explicit, repetitive and unduly thorough?

25. In concluding that the Investigating Committee made no findings as to whether the touching was sexual in nature and as to whether the dwelling on the circumstances in which sexual activity does not amount to sexual intercourse was motivated by a wish to see the complainant's discomfort, I have not ignored the weight which the Investigating Committee attached to the first two incidents. Having found that the facts necessary to support the charges of sexual harassment in the first two incidents had not been established, but before turning to the third incident, the Investigating Committee said in para. 35 of its report:

"In our minds, the first two incidents carry positive probative value as to whether Mr. Ratcliffe's contact with the complainant was innocent or indecent."

Could it be said that that observation showed that the Investigating Committee had indeed regarded the touching of the complainant's back as deliberate and sexual in nature, and had indeed regarded Supt. Ratcliffe's dwelling on the circumstances in which sexual activity does not amount to sexual intercourse as other than innocent? I think not. Paras. 32 and 34 of the report show that the Investigating Committee regarded Supt. Ratcliffe's conduct in the two earlier incidents to have been inappropriate, but it is not possible to tell whether it regarded his conduct on those occasions as indecent or innocent. Although the Investigating Committee regarded the actions as "probative", it is not possible to tell whether they were probative of innocence or indecency. Moreover, having said that it regarded the actions as probative, the Investigating Committee did not return to the earlier incidents at all when determining the facts relating to the third incident. It may well be, therefore, that despite the weight which could be attached to the earlier incidents, the Investigating Committee did not in fact attach any weight to them when considering the third incident.

26. It is possible, I suppose, that the Investigating Committee addressed these three issues, but for some reason or another chose not to express its findings on the issues in the report. But I very much doubt whether this was simply a case of the Investigating Committee failing to express in the report findings which it had made. The report is a comprehensive and well-drafted document, and a lot of work has gone into its preparation. Indeed, it took the Investigating Committee six months to produce it. If the Investigating Committee had made findings on these issues, it would surely have said what its findings were. By far the likeliest explanation is that the Investigating Committee simply did not make any findings on these issues.

27. In these circumstances, I have thought long and hard about whether I should give the Investigating Committee an opportunity to file evidence stating what findings it would have made on these issues if it had addressed them. However, I have decided not to give the Investigating Committee that opportunity for two reasons:

(i) The hearing occurred almost two years ago. It would, I think, be very difficult for the members of the Investigating Committee to recall now what findings they would have made on these issues.

(ii) The Investigating Committee's ultimate conclusion was that the facts proved constituted sexual harassment. If the members of the Investigating Committee are now asked to make findings which it did not make then, the Investigating Committee could be unconsciously tempted to make such findings as justified its ultimate conclusion, thereby demonstrating that although the report was incomplete, the conclusion which the Investigating Committee had reached was not flawed. It would, I think, be unsafe, therefore, to invite the members of the Investigating Committee to revisit the case for the purposes of stating what findings they might have made if they had addressed the issues.

I should add that even if the Investigating Committee had made findings on the three issues but had simply omitted to express its findings in its report, I would still have been very reluctant to give it the opportunity to file evidence now, stating what findings it had made but which it had omitted to express.

28. The Investigating Committee's conclusions. Accordingly, the question is: on the facts which the Investigating Committee did find, was it open to the Investigating Committee to conclude that Supt. Ratcliffe had been guilty of sexual harassment in the third incident? In my opinion, it was not open to it to conclude that. The touching of the complainant must be disregarded in view of the fact that the Investigating Committee did not find the touching to be deliberate or of a sexual nature. What remains is the complaint, which the Investigating Committee found established, that Supt. Ratcliffe had harped on about the circumstances in which sexual activity need not involve sexual intercourse in unnecessary detail and at unnecessary length, and had used explicit sexual language with which the complainant was uncomfortable. It was, I think, open to the Investigating Committee to conclude that that was "unwelcome conduct of a sexual nature" - even though the conversation arose out of the need to explain why the complainant's original draft of the minutes was inadequate, and even if Supt. Ratcliffe had had no sexual or other improper agenda.

29. But without a finding that a reasonable person would have anticipated that the complainant would be offended, humiliated or intimidated, one of the ingredients of a complaint of sexual harassment had simply not been established. Since the complainant's reaction was described by the Investigating Committee as being "close to hysterical", it may well be that this was a case in which the hypothetical bystander, endowed with the attributes of reasonableness, would have taken a very different view of what was being said to the complainant, and would not therefore have anticipated that she would be offended by it.

30. The Notice of Application. The Investigating Committee's failure to make any findings relating to whether a reasonable person would have anticipated that the complainant would be offended, humiliated or intimidated was not one of the grounds relied on in the Notice of Application. It was added by amendment in the course of the hearing. I was conscious that Mr. Cooney had not had an opportunity to take instructions on this ground, and did not know whether he would want to file any evidence on the topic. I told him that if I thought that it was appropriate for evidence to be filed on the topic, I would give him an opportunity to do so. As it is, I have explained earlier why it would not be appropriate for, say, the Chairman of the Investigating Committee to say what findings it would have made if it had addressed these issues.

31. The Investigating Committee's failure to make any findings as to the circumstances in which Supt. Ratcliffe touched the complainant, or as to why Supt. Ratcliffe dealt with the need for amendments in such unnecessary detail and at such unnecessary length and in such explicit language, was not expressly referred to as one of the grounds relied on in the Notice of Application. However, the Notice of Application alleged that the momentary touching of the complainant's back and the conversation which Supt. Ratcliffe had had with the complainant could not be regarded as "conduct of a sexual nature". This argument proceeded on the premise that the Investigating Committee had not found that Supt. Ratcliffe's conduct in these two respects was other than "innocent". Accordingly, the Investigating Committee's failure to make findings in these two areas was sufficiently signposted in the Notice of Application.

32. Conclusion. For these reasons, therefore, it was, in my opinion, not open to the Investigating Committee, on the findings of fact which it made, to conclude that Supt. Ratcliffe had been guilty of sexual harassment in the third incident. It may be that aspects of Supt. Ratcliffe's behaviour were inappropriate (and that relates to the first and second incidents as well), but the misconduct alleged against him was sexual harassment. Since it was not open to the Investigating Committee, on its findings of fact, to conclude that he was guilty of sexual harassment, it was not open to it to form the opinion that he had been guilty of misconduct in the third incident.

33. The effect of these conclusions on the decisions of the Secretary for the Civil Service. These conclusions affect, of course, the decisions made by the Secretary for the Civil Service which are challenged. His decision that the facts which had been established amounted to misconduct cannot stand. If it was not open to the Investigating Committee, on the facts found by it, to conclude that Supt. Ratcliffe was guilty of sexual harassment, or to express the opinion that he was guilty of misconduct, it was not open to the Secretary for the Civil Service to conclude that Supt. Ratcliffe was guilty of misconduct. And obviously his decision that Supt. Ratcliffe should be compulsorily retired from the Police Force cannot stand either: once the "conviction" is set aside, the "sentence" has to go as well.

Miscellaneous points

34. There are three miscellaneous points I wish to make in conclusion. First, one of the facts which the Investigating Committee had to find established if the conversation which Supt. Ratcliffe had with the complainant was to be characterised as misconduct was that the conversation was "in relation to" the complainant. Mr. Kwok argued that this conversation could not in law have amounted to conduct in relation to the complainant. That is because in the conversation complained of Supt. Ratcliffe was not making a sexual statement about her. This argument is fallacious. The conversation complained of amounted to conduct in relation to the complainant because the conversation was with the complainant. The conversation did not have to be about the complainant for the conversation to be a conversation in relation to her. If Mr. Kwok's argument was correct, leaving pornographic photographs on a woman's desk would not be conduct in relation to her if she did not feature in them.

35. Secondly, even if the facts found by the Investigating Committee amounted to sexual harassment, and if the Secretary for the Civil Service was therefore entitled to conclude that Supt. Ratcliffe had been guilty of misconduct, I have very grave misgivings as to whether it was reasonably open to him on those facts to conclude that compulsory retirement was an appropriate sanction. If Supt. Ratcliffe's touching of the complainant was accidental, and if he had not had an improper agenda in dwelling on the need for the amendments, and if a reasonable person would not have anticipated that the complainant would have been offended, humiliated or intimidated, it is strongly arguable that the sanction of compulsory retirement was not within the range of sanctions which could reasonably be imposed. However, it is not necessary for me to reach a conclusion on the topic in view of my finding that the facts found did not amount to sexual harassment.

36. Thirdly, the decisions challenged in this application for judicial review are challenged on numerous grounds. I have not felt it necessary to deal with all of the grounds in this judgment. I have only dealt with those grounds which seem to me to be decisive of the case. In doing that, I have borne in mind the wise observation made by Liu J.A. in Tong Pon Wah v. Hong Kong Society of Accountants [1998] 2 HKLRD 427 at p.443G that "over-legalising informal disciplinary proceedings is undesirable". However, I do not believe that I have fallen into that trap. The findings of fact which the Investigating Committee did not make simply meant that the facts necessary to constitute sexual harassment had not been established. I would not like this judgment to be seen as a charter for women to be sexually harassed with impunity. I believe that I am alive to the need for vigilance to ensure that sexual harassment is properly investigated and punished. The problem is simply that in the present case the facts necessary to constitute sexual harassment had not been established.

Conclusion

37. For these reasons, there must be orders of certiorari

(a) quashing the finding of the Investigating Committee that on the facts established Supt. Ratcliffe had been guilty of sexual harassment and its opinion that Supt. Ratcliffe had been guilty of misconduct,

(b) quashing the decision of the Secretary for the Civil Service that Supt. Ratcliffe had been guilty of misconduct, and

(c) quashing the decision of the Secretary for the Civil Service that Supt. Ratcliffe be compulsorily retired from the Police Force.

It is, of course, for the Secretary for the Civil Service and not for the court to decide whether it would be right to start disciplinary proceedings against Supt. Ratcliffe again, but the Secretary for the Civil Service may consider that the worry, trouble and expense to which Supt. Ratcliffe had been put so far weighs against reviving the disciplinary proceedings against him. However, if the Secretary for the Civil Service decides to do so, it would not be right for him simply to ask the Investigating Committee which heard the case in March 1997 now to make the findings which were not made then. The reasons which made it inappropriate for me to give it an opportunity to do that now render it inappropriate for the Secretary for the Civil Service to give it that opportunity either. If the Secretary for the Civil Service decides to revive the disciplinary proceedings, the case will have to be considered from the start by an investigating committee with new members.

38. As for the costs of the proceedings, at present I see no compelling reason why costs should not follow the event. I assume that the Civil Service Bureau was responsible for the Investigating Committee. In those circumstances, the order nisi which I make is that the Secretary for the Civil Service must pay to Supt. Ratcliffe his costs of the proceedings, to be taxed if not agreed. As for (a) the costs reserved by Stock J. on 30th June 1998 relating to the successful application to set aside the stay which had been granted under Ord. 53 r. 3(10)(a), and (b) the costs reserved by Stock J. on 17th September 1998 relating to the application for leave to cross-examine the Secretary for the Civil Service, I think that the order nisi which I should make is that there be no order as to those costs.