Woo Tak Yan v. Director of Environmental Protection

CACV 37/2015

[2019] HKCA 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CVIAL APPEAL NO. 37 OF 2015

(ON APPEAL FROM HCAL No. 34 OF 2014)

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BETWEEN

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JUDGMENT

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Hon Chu JA (giving the judgment of the Court):

1.This is the applicant’s appeal against the judgment of Andrew Chan J (“the Judge”) refusing to grant him leave to judicially review the decision of the putative respondent, the Director of Environmental Protection (“the Director”), to impose a punishment of severe reprimand and a fine for a conviction in the Magistrates’ Court pursuant to section 11 of the Public Service (Administration) Order (“PS(A)O”).

The facts

2.The applicant is a senior environmental protection inspector of the Environmental Protection Department (“EPD”).  He is a Category A officer below the Master Pay Scale (“MPS”) Point 34.  His duties include providing technical support in sewerage planning referral case, supervising preparation of technical drawings, supervising environmental protection inspectors in his team and arranging site visits.  

3.On 28 May 2010, a summons was issued by the Mass Transit Railway (“MTR”) Corporation Limited (“MTRC”) against the applicant for an offence of leaving the paid area of a railway premise without first paying fare and obtaining a valid ticket, contrary to By-laws 14(a) and 43 of the MTR By-laws, Cap. 556B.[1] It was in respect of an incident that took place on 5 January 2010 at Wong Tai Sin MTR station.  On 18 May 2011, the applicant was convicted after trial in the Kwun Tong Magistrates’ Court, and was fined $1,500 and ordered to pay $500 costs (“the Conviction”).  His appeal against the Conviction was dismissed by the Court of First Instance on 7 March 2012.[2]  

4.After the Conviction came to the attention of the EPD, the Director, by a memo dated 5 April 2012, requested the applicant to explain why he did not make a report to the department upon receipt of the summons mentioned above, and to indicate, inter alia, whether he had applied or would apply for leave to appeal against the dismissal of his appeal.  The applicant replied by memo dated 13 April 2012 that he had nothing to report.

5.By a memo dated 25 May 2012, the Director referred the Conviction to the Secretariat on Civil Service Discipline (“SCSD”), and recommended taking action against the applicant under section 11 of the PS(A)O and imposing formal punishment for the Conviction. 

6.By letter dated 19 October 2012, the SCSD informed the applicant that the Director, in exercise of the authority delegated to her by the Chief Executive, was considering to impose punishment under section 11 of the PS(A)O in respect of the Conviction, and invited the applicant to make representations in mitigation of punishment.  The applicant sent in his representation on 31 October 2012 (“1^st Representation”), the gist of which is that there was no criminal charge against him, and no punishment should be imposed.  

7.By a memo dated 8 February 2013, the SCSD invited the Director to consider the punishment to be imposed on the applicant under section 11 of the PS(A)O in respect of the Conviction.  In the memo, the SCSD expressed the view that a reprimand and a fine equivalent to a quarter of one month’s substantive salary would be an appropriate punishment. 

8.The Director, by a memo dated 26 February 2013, indicated that having considered the gravity of the offence, the applicant’s disciplinary and service records, the 1^st Representation and the customary level of punishment, it would be appropriate to impose a reprimand and a fine equivalent to a quarter of one month’s substantive salary.

9.As the applicant is a Category A officer, the SCSD sought the advice of the Public Service Commission (“PSC”) on the recommended punishment.  The PSC Secretariat through the SCSD[3] invited the Director to consider whether it would be more appropriate to impose a severe reprimand and a fine, in view of the applicant’s blemished disciplinary record and the fact that he occupied a position with supervisory duty and was not junior in rank. 

10.By a memo dated 7 May 2013, the Director informed the SCSD that having revisited the applicant’s case, she agreed with the view of the Secretariat of the PSC and recommended the punishment to be a severe reprimand and a fine equivalent to a quarter of one month’s substantive salary. 

11.By a memo dated 24 June 2013, the SCSD informed the Director that the PSC had advised that the appropriate punishment for the Conviction was a severe reprimand and a fine equivalent to a quarter of one month’s substantive salary. 

12.By letter also dated 24 June 2013, the SCSD informed the applicant that they were about to invite the Director to exercise the authority delegated to her by the Chief Executive to decide on the punishment to be imposed on him.  The applicant was informed of the recommended punishment and was further provided with the SCSD’s intended submissions to the Director containing the considerations underlying the recommendation.  The applicant was invited to make further and final representations in mitigation of punishment.

13.The applicant sent in a representation dated 3 July 2013 (“2^nd Representation”), which reiterated the 1^st Representation and disputed the basis for imposing any punishment on him.  The 2^nd Representation was provided to the Director for consideration on 11 July 2013.          

14.By letter dated 17 December 2013, the Director, in exercise of the authority delegated to her by the Chief Executive, directed that the applicant be punished with a severe reprimand and a fine equivalent to a quarter of one month’s substantive salary (“the Punishment”) under section 11 of the PS(A)O in respect of the Conviction.  The letter was served on the applicant on 19 December 2013.  

The application for leave to apply for judicial review

15.On 15 March 2014, the applicant filed the Form 86, which was later amended on 2 December 2014, to apply for leave to judicially review the Director’s decision to impose the Punishment.  In the amended Form 86, the applicant raised the following grounds in support of his leave application:

(1)  The Director acted unlawfully in imposing the Punishment when there was no delegation of authority from the Chief Executive to her. 

(2)  It was an abuse of power for the SCSD to initiate and proceed with the disciplinary action.

(3)  It was an abuse of power for the EPD, which was not the disciplinary authority, to consider and impose the Punishment.

(4)  The Director failed to consider his representations before imposing the Punishment.

(5)  The Director failed to ascertain the true nature of, and the identity of the defendant in, the proceedings in the Magistrates’ Court.

(6)  The imposition of a fine together with the severe reprimand was unlawful, and the amount of the fine was disproportionate. 

(respectively “Ground (1), (2), (3), (4), (5) and (6) of the Application”, and collectively “Grounds of the Application”).

16.The applicant sought an order setting aside the Director’s decision and the Punishment, and also a refund of the fine together with interest.

17.Pursuant to the Judge’s direction, the Director as the putative respondent filed three affidavits to provide factual information relating to the application and in answer to the applicant’s affirmation.  The application for leave to apply for judicial review was heard inter partes before the Judge. 

The Judge’s decision

18.For the reasons set out in the Form CALL-1, the Judge refused to grant leave to apply for judicial review, and ordered that the application be dismissed with costs to the Director.  

19.On Ground (1) of the Application, the Judge held that there was no legal requirement that the delegation of authority by the Chief Executive must be effected in writing.  Having regard to the materials before him, he was satisfied that there was valid and effective delegation of the disciplinary authority under section 11 of the PS(A)O from the Chief Executive to the Director in that the Chief Executive gave approval to the delegation by an endorsement made on 31 October 2002 through his Private Secretary on the Loose Minutes (“LM”) dated 16 October 2002.

20.On Grounds (2), (3) and (4) of the Application, the Judge found on the materials before him that the disciplinary action against the applicant was initiated by the Director in accordance with paragraphs 5.69 to 5.85 of the Procedural Guide on Discipline (“PGD”). The Director was the “disciplinary authority”, the views and opinions of the SCSD and the PSC had been sought at various stages, and the applicant had also been invited to make representations at various stages but he decided, to a large extent, to sidestep the invitations.  The Director had taken into account the applicant’s representations before deciding on the Punishment.  The Judge did not accept the argument that it was the SCSD that initiated and took control of the disciplinary action, and further rejected the argument that the Secretary of the PSC had participated in the deliberation of the Punishment thereby rendering the Director’s decision unlawful.  

21.On Ground (5) of the Application, the Judge referred to paragraph 5.71 of the PGD which provides that criminal proceedings are instituted against an officer when he is served with a summons to appear before a court of criminal jurisdiction.  The Judge rejected the argument that there was no criminal charge and no criminal proceedings, taking in account that: (i) the applicant was prosecuted for an offence by the MTRC in exercise of the power conferred under section 56 of the MTR Ordinance, Cap. 556 to bring prosecution in its own name; (ii) the summons issued to the applicant required him to appear in the Magistrates’ Court, and (iii), the applicant’s appeal against the Conviction was heard by a Court of First Instance judge exercising the criminal appellate jurisdiction.  Acting on the affidavit evidence filed on behalf of the Director, which stated that the summons was issued to a defendant whose name and address matched those of the applicant as recorded in the applicant’s personnel file maintained by the EPD, the Judge also rejected the argument that it was not proved that the applicant was the defendant in the criminal proceedings.

22.On Ground (6) of the Application, the Judge rejected the argument that section 2 of the PS(A)O does not allow a fine to be imposed in addition to a severe reprimand, noting that under section 11 of the PS(A)O, the disciplinary authority may inflict such punishment as may seem to it to be just.  The Judge also held that there was no ground to interfere with the Punishment, which was not shown to be severe beyond any rational relationship to the seriousness of the offence and the situation of the offender, or was one which no reasonable tribunal would have reached, and given that the Director had duly taken into account all relevant circumstances before passing the Punishment.

The applicant’s grounds of appeal

23.In his Notice of Appeal, the applicant contended that the Judge made multiple errors in rejecting the Grounds of the Application and in ordering him to pay costs.  The applicant’s grounds of appeal may be summarised as follows:

(1)  On Ground (1) of the Application,

(a)  The Judge was wrong to hold that the delegation of the disciplinary power in section 11 of the PS(A)O from the Chief Executive to the Director requires no formality and is not legally required to be effected in writing.

(b)  The Judge should not have accepted, on the basis of the affidavit evidence of the Chief Executive’s Private Secretary, that there was approval from the Chief Executive given through the endorsement made by his Private Secretary.     

(2)  On Grounds (2), (3) and (4) of the Application,

(a)  The Judge erred in concluding that the disciplinary action against the applicant was properly initiated and conducted in accordance with the PGD in that the Director, as the disciplinary authority, had not agreed to proceed with the Punishment, considered the Punishment or made the decision to impose the Punishment, and there was no consultation with the PSC. 

(b)  The Judge erred in saying that the applicant decided, to a large extent, to sidestep the invitations to make representations.

(c)  The materials do not evidence that the Director had taken into account all the applicant’s representations.

(3)  On Ground (5) of the Application,

(a)  The Judge erred in holding that the offence in question was a criminal charge, the prosecution was a criminal prosecution and the Conviction was a criminal conviction.

(b)  There is no basis for the Judge to conclude that the summons had been served on a defendant having the same name and address as those of the applicant.

(4)  On Ground (6) of the Application,

(a)  The Director had gone outside the scope of section 11 of the PS(A)O in taking into consideration matters other than “the proceedings of the court on such charge” when deciding on the Punishment, and the Punishment is accordingly illegitimate. 

(b)  The Punishment is unjust and unreasonable.

(5)  On the costs order, the applicant should not have been ordered to pay the Director’s costs because:

(a)  Leave to apply for judicial review should have been granted; and

(b)  The question of the delegation of authority by the Chief Executive has wide implication and does not solely affect the applicant’s interest.

Principles relevant to the conduct of an appeal

24.Before dealing with the grounds of appeal, it is necessary to say a few words about the permissible limit of an appeal against the refusal of leave to apply for judicial review.

25.Judicial review is ground specific.  An applicant is required to set out in the Form 86 the relief sought and the grounds on which it is sought, and to verify the facts in support of the application by affidavit.[4] The Form 86 and the affidavit are the materials that the Court of First Instance will consider when deciding whether to grant leave to apply for judicial review. 

26.In an appeal against refusal to grant leave for judicial review, the focus of the Court of Appeal is to examine the decision of the first instance judge in light of the grounds and materials before him.  The scope for admission of fresh evidence and for new grounds or arguments to be run is limited.  In respect of new evidence, an applicant must satisfy the requirements in Ladd v Marshall [1954] EWCA Civ 1, [1954] 1 WLR 1489 before the court will consider whether to admit the new evidence.  In the case of new grounds or arguments, the court will not generally permit an appellant to advance new grounds for judicial review or arguments that were not raised in the Court of First Instance.  This is particularly the case when the new grounds or arguments are fact-sensitive.  Otherwise, an applicant will be able to disregard the stringent time limit in Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A.

27.Further, the scope of an appeal is limited by the grounds set out in the Notice of Appeal.  An appellant is therefore not at liberty to travel outside his grounds of appeal when making submissions.  Nor will he be permitted to advance a new case or new arguments at the hearing of the appeal.

28.With these basic principles in mind, we turn to consider the applicant’s grounds of appeal as summarised above.  

Ground (1): Delegation of the disciplinary authority

29.Ground (1) of the appeal relates to the Judge’s rejection of Ground (1) of the Application which argued that there was no lawful delegation of the disciplinary authority from the Chief Executive to the Director.  The applicant’s principal argument is that no formal instrument had been executed by the Chief Executive to validly delegate the disciplinary authority to the Director; hence the Director did not have authority to inflict punishment on him, and the Punishment was accordingly unlawful.

30.The Director’s case, which the Judge accepted, is that the Chief Executive’s authority to delegate the disciplinary power under, among others, section 11 of the PS(A)O is provided in section 19 of the PS(A)O, and that instruments of delegation are not required for the delegation of authority under the PS(A)O.

31.The PS(A)O is an executive order issued by the Chief Executive pursuant to Article 48(4) of the Basic Law to deal primarily with the appointment, dismissal and discipline of public servants.  The provisions engaged in this ground of appeal are sections 11 and 19, which provide as follows:

“11.  Action further to criminal charge

If an officer has been convicted on a criminal charge the Chief Executive may, upon a consideration of the proceedings of the court on such charge, inflict such punishment upon the officer as may seem to him to be just, without any further proceedings.”

“19.  Delegations of power

(1)  Subject to subsection (2), the Chief Executive may delegate to any public servant or any other public officer any powers or duties conferred or imposed on him by sections 3, 9 to 18 and 20(1).

(2)  The Chief Executive shall not delegate the power to make regulations under section 21(2).”

32.It is clear from section 19(1) that the Chief Executive may delegate his authority to inflict punishment upon an officer under section 11 of the PS(A)O to a public servant or public officer, including the Director.  Section 19(1) also does not prescribe any formality or requirement as to the manner in which the delegation is to be made.  We agree with the Judge that the section does not stipulate that the delegation has to be effected by way of a formal instrument or in writing.

33.The evidence filed on behalf of the Director shows the process by which the delegation of the disciplinary authority from the Chief Executive to the heads of departments, including the Director, to be as follows:

(1)  By a LM dated 5 September 2002 (“5-9-2002 LM”), the Acting Permanent Secretary for Civil Service put forward to the Chief Executive a proposal on reorganization of the Civil Service Bureau (“CSB”), and sought his agreement in principle to the devolution of authority to, inter alia, heads of departments.  Among the authority proposed to be delegated to heads of departments is the exercise of disciplinary authority under the PS(A)O and Public Service (Disciplinary) Regulation on Category A officers below MPS Point 34. Paragraph 15 of the 5-9-2002 LM stated that, subject to the Chief Executive’s agreement in principle, detailed proposals on delegation of authority would be submitted to him for approval.

(2)  On 17 September 2002, the then Private Secretary to the Chief Executive endorsed on the 5-9-2002 LM that the Chief Executive agreed to paragraph 15 of the LM. 

(3)  This was followed by a LM dated 16 October 2002 (“16-10-2002 LM”) from the Acting Permanent Secretary for Civil Service.  The LM began by referring to the Chief Executive’s agreement in principle to the proposed devolution of authority, and the 5-9-2002 LM was attached as Annex A.  The purpose of the 16-10-2002 LM was to seek the Chief Executive’s approval to the detailed delegation proposals set out in it.  Among them was the proposal in paragraph 12(d) and Annex C(i) to delegate to heads of departments the authority to administer punishment (other than dismissal) on Category A officers below MPS point 34.

(4)  The material part of paragraphs 33 and 34 of the 16-10-2002 LM stated:

“33. … Subject to your approval, the devolution of authority will take effect on 1 November 2002 following promulgation of the relevant CSB Circulars in October 2002.”

“34. We recommend that you sign on this minute to indicate your approval of all the delegation proposals and where necessary to give effect to the delegations concerned. To complete the formalities for the delegations relating to appointment and discipline matters, you are also invited to sign Schedule I, Schedule II and Schedule III to delegate the powers listed therein to the delegated officers.”

(5)  On 31 October 2002, the then Private Secretary to the Chief Executive, Mr. Ip Man Fai, endorsed on the 16-10-2002 LM the following:

“CE approved and signed the legal instruments”.

(6)  Mr Ip had made an affidavit in the proceedings below.  In it, he said he had submitted the 16-10-2002 LM together with the documents annexed to the Chief Executive for his consideration.  He did not recall the Chief Executive raising any question on the content of the LM.  Mr Ip also said the Chief Executive returned the LM to him and indicated his approval of it.  He accordingly recorded the Chief Executive’s approval on the LM by making the endorsement (see sub-paragraph (5) above), and then returned the LM to the CSB.  It is Mr Ip’s evidence that he would not have made the endorsement without a clear understanding at the time that the Chief Executive did approve the delegation proposals.

(7)  After the endorsed LM was returned to CSB, and in line with what was indicated in paragraph 33 of the 16-10-2002 LM, a CSB Circular No. 14 of 2002 was issued on 9 November 2002 to promulgate the delegation to heads of departments of the authority to administer punishment (other than dismissal) on Category A officers below MPS point 34 or equivalent.

34.The same process of delegation of authority was challenged in Wong Kei Wong v Principal Assistant Secretary for the Civil Service & Anor (unreported) HCAL 49/2007, 15 February 2008.  In that case, the applicant sought to judicially review the decision to carry out a formal disciplinary inquiry on him under section 10 of the PS(A)O. One of his grounds of challenge is that there was no proper evidence that the Chief Executive had lawfully delegated to the Principal Assistant Secretary for the Civil Service his power to establish the inquiry committee.  In [65] and [66] of the judgment, Saunders J observed that the Chief Executive was authorized by section 19 of the PS(A)O to delegate his powers and duties under specific sections of the PS(A)O.  He went on to deal with the argument that the evidence did not establish a proper act of delegation, saying (at [74] and [75]):

“74.  In most cases an act of delegation by the holder of the statutory power, pursuant to a statutory authority to delegate, will be comprised in a formal document which sets out the power to be delegated, the authority to delegate the power, and the act of delegation, duly identifying the delegate, and signed by the holder of the statutory power. Such a document would remove any doubt whatsoever as to the proper exercise of power.

75.  That procedure has not been followed in the present case.  I suspect that the course adopted was adopted because of the large number of delegations involved, which would thereby necessitate numerous formal documents and numerous signatures by the Chief Executive.”

35.In Wong Kei Wong, there was, in addition to the 16-10-2002 LM and the endorsement made by Mr Ip, a legal instrument showing the delegation, namely, the Public Service (Disciplinary) (Amendment) Regulation 2002 dated 31 October 2002 signed by the Chief Executive (see [76] to [79] of Saunders J’s judgment).  This legal instrument is the Schedule II attached to the 16-10-2002 LM, and it was part of the evidence filed on behalf of the respondent.  In the light of the evidence in the case, Saunders J concluded in [88] of the judgment that “not only did the Chief Executive have power to delegate the function of appointment of the inquiry committee, but that he has also duly exercised that power of delegation.”[5]

36.The Judge considered that much of what Saunders J said in Wong Kei Wong held true in the present case.  He did not consider the non-availability of a formal instrument in this case of importance:

“However, there is no legal requirement to say that delegation by the CE can only be effective in writing.  It is worth mentioning that, prior to the hearing, the putative respondent, at my request, provided to court copies of Schedule I, II and III, which had been mentioned in the “Loose Minutes”.  Schedule II was the legal instrument mentioned by Saunders J in para 79 of his judgment.  After perusal by the court, they were found to be of no relevance to the present proceedings and as such they were not provided to the applicant.”.

37.As we have pointed out, section 19(1) of the PS(A)O has not prescribed the manner in which the delegation of authority is to be effected. While we take note of what Saunders J said in [74] and [75] of his judgment (see [34] above), we can discern no basis for the contention that the Chief Executive is required to execute a formal or legal instrument before there can be a valid delegation of authority under section 19(1) of the PS(A)O.

38.The applicant sought to distinguish Wong Kei Wong on two bases.  Firstly, he referred to [67] of Saunders J’s judgment which stated:

“The rule against delegation, sometimes expressed in the form of the maxim, delegatus non potest delegare, is described in De Smith’s Judicial Review, 6^th Ed, Woolf & Ors, at para 5-138 in these terms:

‘A discretionary power must, in general, be exercised only by the public authority to which it has been committed.  It is a well-known principle of law that when a power has been conferred to a person in circumstances indicating that trust is being placed in his individual Judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another.  This principle has been applied on the law of agency, trusts and arbitration as well as in public law.’”

39.He argued that in accordance with the doctrine of delegatus non potest delegare, the Chief Executive’s power must be exercised by him in person.  We have no hesitation in rejecting this argument.  The doctrine has no application given that section 19(1) of the PS(A)O expressly authorises the Chief Executive to delegate his power in section 11 of the PS(A)O.

40.Secondly, the applicant referred to paragraph 34 of the 16-10-2002 LM, and argued that the LM sought approval of two matters, and the Chief Executive was requested to: (i) sign on the LM to indicate his approval of the delegation proposals; and (ii) sign Schedules I, II and III to delegate the powers listed therein to the delegated officers.  It was said that Mr Ip’s affidavit only mentioned that the Chief Executive approved the delegation proposals, but said nothing about whether the Chief Executive had agreed to sign, or had actually signed Schedules I, II and III.  The applicant also referred to the fact unlike Wong Kei Wong, no formal instrument was produced in the present case.

41.In the Form 86 and the amended Form 86, the applicant had not relied on the Chief Executive not having signed the legal instruments attached to the 16-10-2002 LM as a ground for seeking relief.  He only raised this complaint for the first time in the Notice of Appeal.  This complaint is fact-sensitive and the Director was deprived of a proper opportunity to deal with it by appropriate evidence.  In accordance with the principles mentioned above (see [25] and [26]), we will not permit the applicant to argue this on appeal.

42.There is, in any event, no merit in the argument.  When Mr Ip deposed to the Chief Executive giving his approval to the 16-10-2002 LM, the approval was not said to be a qualified one.  Nor had Mr Ip qualified his evidence.  The logical inference is that the Chief Executive’s approval extended to all aspects of the LM and covered both the request to approve the delegation proposals and the request to sign the three schedules to delegate the powers to the delegated officers.  Had the approval been confined to one of the two requests, one would naturally expect Mr Ip to spell it out clearly.  More importantly, the Director accepts that there is no formal instrument signed by the Chief Executive in connection with the delegation of the disciplinary power in section 11 of the PS(A)O.  The Judge, after inspecting the Schedules I, II and III attached to the 16-10-2002 LM, was also satisfied that they have no relevance to the delegation to the heads of departments of the disciplinary authority, including the power under section 11 of the PS(A)O.  The argument that the endorsement on the LM does not show that the Chief Executive had also agreed to execute the Schedules I, II and III is therefore irrelevant.

43.The applicant also sought to argue that the delegation of authority is required to be gazetted.  Again, this is not one of the grounds stated in the Form 86 and the amended Form 86, and was only raised for the first time in the Notice of Appeal.  We will not permit the applicant to advance this new ground on appeal.  In any event, this argument has no merit.  Unlike the Public Service (Disciplinary) Regulation with which the applicant sought to draw an analogy, the delegation of authority in question is not by way of subsidiary legislation (see also section 21(5) of the PS(A)O) and the gazetting requirement is not engaged.

44.In our view, the endorsement on the 5-9-2002 LM, the endorsement on the 16-10-2002 LM and the promulgation by the CSB Circular No. 14 of 2002 taken together sufficiently show the process of the devolution by the Chief Executive to the heads of departments of the authority to impose disciplinary punishment on Category A officers below MPS Point 34 or equivalent, including the power in section 11 of the PS(A)O.  The evidence of Mr Ip further confirms that the Chief Executive had given his approval to the delegation of authority and that the endorsement on the 16-10-2002 LM was properly made.  The evidence led by the Director therefore proves that there has been a valid delegation of authority under section 19(1) of the PS(A)O, and conclusively puts the issue raised by the applicant under Ground (1) of the Application to rest.

45.It follows that the Judge did not err in finding that, notwithstanding no formal instrument had been executed by the Chief Executive, there had been a valid delegation to the Director of the power under section 11 of the PS(A)O to inflict punishment.  This ground of appeal therefore fails.

Ground (2): Compliance with the procedures prescribed by the PGD

46.Ground (2) of the appeal challenges the Judge’s rejection of Grounds (2) to (4) of the Application, which essentially argued that the procedures prescribed by the PGD had not been complied with.  Specifically, the applicant challenged the Judge’s holdings that: (i) the disciplinary action against the applicant was properly initiated by the Director and was conducted in accordance with the PGD; (ii) the applicant decided, to a large extent, to sidestep the invitations made at various stages to make representations; and (iii) the Director had taken into account the applicant’s representations.

47.In support of the first challenge, the applicant argued that the agreement to proceed with the punishment process was not given by the Director, the consideration of punishment was not undertaken by the Director, there was no consultation on the punishment with the PSC, and the decision to impose punishment was not made by the Director as required by the PGD. 

48.The procedures for disciplinary action under section 11 of the PS(A)O are detailed in paragraphs 5.69 to 5.85 of the PGD. The procedures relevant to the present appeal can be summarised as follows:

(1)  The department should remind the officer to make a report if he is subject to criminal proceedings (paragraph 5.70).

(2)  The department will refer a case of an officer convicted of criminal offence to the SCSD and, where appropriate, with a memorandum as to whether or not a disciplinary punishment should be imposed and the suggested level of punishment (paragraph 5.75).

(3)  If the SCSD considers that a punishment is warranted, it will invite the officer to make representation in mitigation before punishment is considered (paragraph 5.78).

(4)  If the officer is a Category A officer, the SCSD will provide relevant documents to the PSC to seek its advice on the proposed punishment (paragraph 5.81).

(5)  Upon receipt of the PSC’s advice, the SCSD will invite the officer to submit his final representation, before inviting the disciplinary authority to decide on the punishment to be imposed.  The officer will be notified of the proposed punishment and the considerations giving rise to it, which the disciplinary authority will take into account in arriving at his decision on punishment (paragraph 5.82)

(6)  Upon receipt of the final representations from the officer, the SCSD will invite the disciplinary authority to determine the punishment, having regard to the advice of the PSC, if any.  The disciplinary authority will inform the officer in writing of his punishment (paragraph 5.84).       

49.It can be seen from the facts set out in [4] to [14] above that the above procedures prescribed in the PGD had been adhered to.  The formal disciplinary process was initiated by the Director by the memo to the SCSD dated 25 May 2012.  The applicant’s contention that the Director had not given agreement to proceed with the punishment process is not supported by the evidence.  The fact that the Director’s 25 May 2012 memo was preceded by an internal departmental minute[6] involving the senior management of the EPD to seek agreement to submit the applicant’s case to the SCSD does not detract from the fact that the formal disciplinary process was initiated by the Director by the 25 May 2012 memo.   

50.Likewise, the complaints that the punishment was not considered by the Director, and there was no consultation with the PSC are not supported by the evidence.  There had been input and advice from the SCSD and the PSC on the appropriate form of the punishment.  Despite these input and advice, the Director herself had given consideration to what would be the appropriate punishment.  Her view on the proposed punishment was related to the SCSD in the memo dated 7 May 2013, and this was conveyed to the applicant through the SCSD’s letter dated 24 June 2013.  The applicant’s contention that the SCSD invited the applicant to make representation in mitigation without agreement from the Director is unfounded.        

51.The applicant also complained that there was non-compliance with paragraph 5.84 of the PGD in that the decision to impose punishment under section 11 of the PS(A)O was not made by the Director.  It was said that the letter dated 17 December 2013 informing him that the Director had directed that he be punished by severe reprimand and a fine under section 11 of the PS(A)O was not issued and signed by the Director.  This submission is both factually incorrect and untenable.  Although the letter was issued and signed by the Senior Head of Grade of Environmental Protection Inspector, it was expressly stated to be “for the Director of Environmental Protection”.  Paragraph 5.84 of the PGD only requires the disciplinary authority to inform the officer in writing of his punishment.  It does not require the disciplinary authority to personally sign off the written notification.      

52.In respect of the second challenge, the applicant said the Judge was wrong to say that he had decided to sidestep invitations extended at various stages to make representations because he had, in response to the SCSD’s invitations, submitted the 1^st and 2^nd Representations.  Reading the Judge’s statement in the context, the Judge must be aware that the applicant had made the 1^st and 2^nd Representations because he went on to say that the Director had taken the applicant’s representations into account when deciding on punishment.  We note, however, nothing of substance in terms of mitigation was said by the applicant in either the 1^st or the 2^nd Representation.  The applicant’s primary stance in both representations was that, due to the various arguments raised in them, no punishment should be inflicted.  Therefore, notwithstanding the 1^st and 2^nd Representations, the applicant had not in effect taken up the invitations to make representations in mitigation.                 

53.As for the third challenge that only part of the 1^st and 2^nd Representations was recapped without any indication that consideration had been given to them, we can see no ground for the complaint given that the bulk of the content of the representations was disputing whether there was a criminal charge against the applicant, whether there was a case for imposing punishment under section 11 of the PS(A)O, and whether it was just and lawful to impose a fine in combination with a severe reprimand.  As pointed out above, these are not representations in mitigation.

54.For the above reasons, the Judge did not err in rejecting Grounds (2) to (4) of the Application.  This ground of appeal therefore fails.

Ground (3): The nature of the proceedings in the Magistrates’ Court and the identity of the defendant named in the summons

55.Ground (3) of the appeal relates to the Judge’s rejection of Ground (5) of the Application.  There are two main arguments under this ground of appeal.  Firstly, the applicant argued that the prosecution by the MTRC was not a criminal prosecution, hence there was no proof that there was a criminal charge resulting in a criminal conviction.  Secondly, the applicant argued that there was no proof that the summons was served on a defendant whose name and address matched his name and address.  At the hearing, the applicant raised a further argument that the EPD failed to obtain legal advice in accordance with paragraph 5.71 of the PGD.

56.As mentioned above, the disciplinary procedures for cases relating to section 11 of the PS(A)O are set out in paragraphs 5.69 to 5.85 of the PGD.  Paragraph 5.70 stipulates that departments should remind officers of their duty to report to their employing departments if they are subject to criminal proceedings.  Paragraph 5.71 goes on to provide:

“For the purpose of paragraph 5.70, criminal proceedings are instituted against an officer when he is served with a summons to appear before a court of criminal jurisdiction or charged with a criminal offence. If he is found guilty of an offence as a result of the criminal proceedings brought against him, he is criminally convicted of the offence. Legal advice should be sought should there be any doubt as to whether criminal proceedings have been instituted or whether an officer has been criminally convicted.”

57.The Judge was clearly correct to refer to paragraph 5.71 to ascertain what would amount to criminal proceedings and criminal conviction for the purpose of section 11 of the PS(A)O.  Under paragraph 5.71, criminal proceedings are instituted when an officer is served with a summons to appear before a court of criminal jurisdiction or charged with a criminal offence, and criminal conviction means a finding of guilt as a result of criminal proceedings brought against an officer. 

58.In the present case, there was a summons commanding the defendant named in it to appear before the Kwun Tong Magistrates’ Court, which is a court that exercises criminal jurisdiction.  The nature of the case in the Magistrates’ Court is undoubtedly criminal.  There is further no doubt that the summons had led to a finding of guilt, which was upheld on appeal to the Court of First Instance in the exercise of its criminal appellate jurisdiction.  That there had been prosecution of a criminal charge and a criminal conviction within the definition of paragraph 5.71 and for the purpose of section 11 of the PS(A)O is clear.

59.The applicant argued that the prosecution was a private prosecution brought by the MTRC within the meaning of section 14(1) of the Magistrates Ordinance.  In support of the argument, he referred to Article 63 of the Basic Law and argued that criminal prosecution shall be under the control of the Department of Justice, and the MTRC had no such power. 

60.We do not accept the argument.  The prosecution in question was brought in the name of the MTRC pursuant to section 56 of the MTR Ordinance, which provides:

“Without affecting any Ordinance relating to the prosecution of criminal offences or the powers of the Secretary for Justice in relation to the prosecution of criminal offences, prosecutions for an offence under this Ordinance may be brought in the name of the Corporation.”

61.The prosecution relates to an offence (leaving a paid area without first paying fare) prescribed by by-laws 14 and 43 of the MTR By-Laws, with the penalty prescribed also by Schedule 2 of the By-Laws.  The prosecution is not a private prosecution and section 14(1) of the Magistrates Ordinance is not engaged.  Article 63 of the Basic Law is about the Department of Justice having control of criminal prosecution, free from interference.  It does not affect the power of the MTRC under section 56 of the MTR Ordinance to bring prosecution for offences under the Ordinance, which includes the by-laws.       

62.The applicant also relied on paragraph 5.73 of the PGD in support of his contention that the case in the Magistrates’ Court was not a criminal case. Paragraph 5.73 sets out what the department should do if one of its officers was convicted of a criminal offence.  Among other things, it states that “the department should obtain the brief facts of the case from the Police or ICAC and the court transcript … to examine the gravity of the offence and the surrounding circumstances in connection with the criminal conviction.”  Relying on this, the applicant argued that as the MTRC was not included in paragraph 5.73, it was not a criminal case.   

63.We reject the argument.  The relevant provision for ascertaining the nature of the proceedings and the conviction is paragraph 5.71, and not paragraph 5.73.  The former defines when an officer is regarded as criminally charged and convicted.  The latter prescribes what the department is required to do when one of its officers has been convicted of a criminal offence.  The fact that the MTRC is not named in paragraph 5.73 as an authority to be approached by the department to obtain the brief facts of the conviction cannot give rise to the conclusion that a prosecution brought by the MTRC is not a criminal prosecution and the resulting conviction is not a criminal conviction.

64.We also reject the applicant’s complaint that the EPD or the Director had not complied with paragraph 5.71 in that no legal advice had been sought as to whether the Conviction is a criminal conviction.  In the first place, this is a new argument not even contained in the Notice of Appeal.  More importantly, under paragraph 5.71, legal advice is only required to be obtained if there is doubt as to whether criminal proceedings have been instituted or whether an officer has been criminally convicted.  The evidence does not suggest that the Director has any doubt in this regard.

65.The second part of this ground of appeal seeks to challenge the Judge’s finding that the summons was served on a defendant having the same name and address as the defendant.  The Judge’s finding is based on the affidavit of Chen Li Yen, who is the Deputy Departmental Secretary (Staff) of EPD, responsible for the personnel and appointments matters in the EPD including handling of staff management cases on disciplinary action.  Paragraph 20 of Ms Chen’s affidavit stated:

“On the issue of identity, the summons (exhibit “CLY-1” herein) clearly stated the address, English and Chinese names and Identity Card No. of the Defendant which matched with the residential address, English and Chinese names and Identity Card No. of the Applicant as recorded in the Applicant’s personnel file maintained by the EPD.  There can be no doubt that the Applicant is the Defendant in Case No. KTS 9151/2010 and HCMA 757/2011.”

66.The applicant’s principal complaint is that the affidavit had not exhibited materials to support the statement that the applicant’s name and residential address match those of the defendant named in the summons.  We note that the applicant’s case in the amended Form 86, and also on appeal, is merely there is no proof of the identity of the defendant named in the summons.  He does not positively assert that he is not the defendant named in the summons.  In fact, he stated in the Notice of Appeal that he was not obliged to jeopardise his own interest and to make any admission”.[7] We further note that the applicant has not filed any evidence to contradict Ms Chen’s evidence in paragraph 20 of her affidavit.  He only takes a technical point that the personnel file Ms Chen referred to in paragraph 20 of her affidavit was not exhibited to the affidavit.  In our view, in the absence of evidence to the contrary, the Judge was entitled to accept and act on Ms Chen’s evidence that the name and address of the defendant named in the summons match those of the applicant on the personnel file maintained by the EPD. 

67.The applicant also complained that the “matching finding/ process”, his personal data and the court documents exhibited to Ms Chen’s affidavit were not disclosed to him in the course of the disciplinary action.  We fail to see how this is relevant to whether the Judge was entitled to rely on the evidence presented in the affidavit.

68.For the above reasons, this ground of appeal fails.

Ground (4): The Punishment

69.Ground (4) of the appeal stems from the Judge’s rejection of Ground (6) of the Application.  There are three main arguments under this ground, namely, (i) the punishment of a severe reprimand together with a fine is unlawful; (ii) the Director had taken into consideration matters outside the scope of section 11 of the PS(A)); and (iii) the Punishment is unjust and unreasonable. 

70.In respect of the first argument, the starting point is section 11 of the PS(A)O, under which the disciplinary authority’s may inflict such punishment as may seem to him to be just. 

71.“Punishment” is defined in in section 2 of the PS(A)O.  It provides that punishment “includes dismissal, compulsory retirement with pension, gratuity or other allowances or, without such benefits or with reduced benefits, fine, reduction, severe reprimand, reprimand, stoppage or deferment of increments and reduction in salary”.  The applicant relied on the use of the commas in the definition, which he contended should be read as “or” in the context, such that the different forms of punishment could not be used in combination.  He thus argued that the punishment of a severe reprimand and a fine imposed on him was unlawful.

72.This argument is plainly untenable given the use of the conjunctive “and” immediately before the last form of punishment, which denotes that the various forms of punishment set out in the provision are not mutually exclusive and may be inflicted concurrently.  There is no justification, and the applicant has not pointed to any, for construing the provision to mean that the forms of punishment set out therein cannot be imposed in combination.  The point is reinforced by paragraphs 6.16 and 6.17 of the PGD.  They come under the heading of “financial penalty”.  Under paragraph 6.17, fine is one form of financial penalty under the PS(A)O.  Paragraph 6.16 provides that:

“Financial penalty is used concurrently with other punishments (except in the case of reduction in rank and dismissal) when the other punishment alone is inadequate to reflect the gravity of the misconduct-offence and/or to achieve the desired punitive and deterrent effect, but a higher level of punishment is not applicable or justified. A common example is that a severe reprimand may be imposed together with a fine.”

73.There is clearly no merit in this argument.

74.For the second argument, the applicant relied on the part of section 11 which provides that “the Chief Executive may, upon a consideration of the proceedings of the court on such charge, inflict such punishment as may seem to him to be just”.  He argued that since the section only refers to “the proceedings of the court”, the Director erred in taking into account his disciplinary and service records, which he also said were irrelevant.

75.In our view, the applicant has taken an unduly restrictive and unreasonable reading of section 11.  The essence of the section is to give the Chief Executive the power to inflict punishment, without further proceeding, on an officer convicted of a criminal charge, and the power extends to inflicting “such punishment as may seem to him to be just”.  Properly read, while the section provides that the court proceedings should be considered, it does not bar the Chief Executive from taking into consideration other matters that will assist him in forming a judgment on the appropriate level and form of punishment.  This will include, for instance, the mitigation put forward by the officer. 

76.That it is legitimate for the disciplinary authority to consider not only the proceedings is reinforced by paragraph 5.80 of the PGD, the relevant part of which provides that:

“In considering the punishment, the department will take into account the nature and gravity of the offence, the officer’s service and disciplinary records, all mitigating circumstances including the representations made by the officer, the customary circumstances as revealed by the precedent cases and the views of SCSD.”

77.In the present case, the guidance in paragraph 5.80 had been closely observed.  We do not accept the applicant’s argument that his disciplinary record and service performance are not relevant considerations.  Although the offence was not committed in the course of duty and was not duty related, the applicant’s unsatisfactory disciplinary and service records are not irrelevant considerations in the context of a disciplinary action.  In particular, the offence that the applicant was convicted of reflects adversely on his honesty. In view of this and the fact that the applicant assumes a supervisory position, previous disciplinary record that bears on his honesty and credibility must be relevant.

78.As for the third argument that the Punishment was unjust and unreasonable, it is pertinent to bear in mind the role of the court in the exercise of its supervisory jurisdiction in a judicial review.  The court will not lightly interfere with the findings of a professional tribunal and will only intervene where the tribunal’s discretionary powers have so exceeded the normal limits as to justify a finding that there must have been an error of law: see Chan Kam Choi v Commissioner of Correctional Services [2016] 4 HKLRD 565 at [26] and the authorities referred to in [27].  It is therefore insufficient even if the punishment is unduly severe or surprisingly severe. It must be shown that it is so harsh and oppressive, or so far outside the normal discretionary limits as to justify a finding that its imposition must involve an error of law. 

79.In the present case, the decision to impose the Punishment was made after considering the gravity of the offence, the applicant’s disciplinary and service records, the applicant’s representations and the customary level of punishment.  It was considered that the Conviction reflected adversely on the applicant’s honesty, that the applicant had a blemished disciplinary record and his service performance had not been satisfactory, and that his representations stated that there was no criminal charge against him and no punishment was warranted.  It was also considered that in the precedent case involving a similar offence, the officer, who was given a reprimand and a fine, was from a relatively junior rank and had a clear disciplinary record.  By comparison, the applicant was not junior in rank, occupied supervisory position and had received several verbal and written warnings in the past.  The commission of the offence was further considered to have set a bad example to the junior staff.  A severe reprimand and a fine equivalent to a quarter of one month’s substantive salary was considered to be appropriate.

80.All these are matters that the Director was entitled to take into account.  The Punishment is also within the range of punishment that may be imposed by the Director in the proper exercise of her discretionary powers.  We do not accept the argument that because no financial interest was involved, a fine was inappropriate.  We also do not accept the level of fine was disproportionate such that the court is justified in interfering.  In short, we see no basis to disturb the Punishment.         

81.For the above reasons, the challenge to the Punishment fails. This ground of appeal is also not made out.

Ground (5): The Judge’s costs order

82.Ground (5) of the appeal challenges the Judge’s costs order.  The applicant’s first argument under this ground is that he should not have been ordered to pay the Director’s costs because leave to apply for judicial review should have been given.  For the reasons given above, the Judge was correct in refusing to grant leave to apply for judicial review.  Accordingly, this argument must fail.

83.The applicant’s second argument against the costs order is that the question of delegation of authority by the Chief Executive has wide implication and does not solely affect the applicant’s personal interest. Relying on Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, it is said that since his case involved general public interest and importance, he should not be ordered to pay costs.

84.Decision on costs is an exercise of the court’s discretion.  The appellate court will not interfere with a first instance judge’s exercise of discretion unless it is demonstrated that he errs in principle or his exercise of discretion is plainly wrong.

85.The principles to be applied in relation to the costs of opposing parties in unsuccessful applications for leave to apply for judicial review have been set out by the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 2), supra.  In respect of a leave application heard at first instance, it was held that good reason would be required in order for the court to order costs against an applicant; but there was no definitive test of reasons that may justify an award of costs against an applicant and in favour of a putative respondent.  It was pointed out that the discretion as to costs is broad, and that all facts and circumstances may be relevant and should be taken into account in the exercise of the discretion. At [17(4)], the Court of Final Appeal further said that:

“it is certainly relevant to focus on the reason that has led the opposing party to attend at the hearing, whether that party’s attendance has been of material benefit to the court in determining the leave application, and the underlying lack of merits of the application, always bearing in mind that the context is the end result that the court has refused to grant leave to apply for judicial review.”

86.In ordering the applicant to pay the costs of the Director, the Judge took into consideration: (i) the grounds put forward by the applicant were unmeritorious; (ii) the application was principally for the applicant’s own interest; and (iii) the Director attended the hearing of the leave application at the court’s request.  In accordance with the principles laid down in the Leung Kwok Hung case, these are relevant factors and should be taken into account in the exercise of the discretion on costs. 

87.The applicant asserted that the issue of delegation of authority by the Chief Executive carried wide implication beyond his case.  When exercising the discretion as to costs in judicial review proceedings, the public importance of a case is only one of the relevant considerations: Town Planning Board v Society for Protection of the Harbour Ltd (No 2) (2004) 7 HKCFAR 114 and Leung Kwok Hung v President of the Legislative Council (No 2) at [13].  Importantly in this case, the Judge took the view that the intended judicial review was principally for the applicant’s personal interest.  We see no reason to disagree with this view.    

88.The applicant has failed to show that he Judge had erred in principle or that his exercise of discretion was plainly wrong. There is accordingly no basis for this Court to disturb his costs order, and the appeal against the Judge’s costs order must fail.   

Costs of this appeal

89.For the reasons set out above, none of the grounds of appeal have merits and the appeal falls to be dismissed.   

90.The applicant has argued that there should be no order as to the costs of the appeal, reiterating that his case involves wide public interest.  

91.As held in Leung Kwok Hung v President of the Legislative Council (No 2) at [17(8)] and [17(10)], in an appeal against a refusal of leave to apply for judicial review, the usual rule, even when public interest is involved, is that costs should follow the event.  And for the public interest litigation factor to apply so that the applicant should not be ordered to pay the opposing party’s costs, it is necessary for the applicant to show that he brought the proceedings to seek guidance on a point of general public importance for the benefit of the community as a whole and that he stood to obtain no personal private gain from the outcome.   

92.On the facts of this case, there is plainly no room for the application of the public interest litigation factor.  The issue of delegation of the Chief Executive’s disciplinary authority cannot be said to be a point of general public importance affecting the community as a whole.  Still less can it be said that the applicant stands to derive no personal gain from the outcome of the appeal had it been decided in his favour.  There is no basis to depart from the usual rule.  The applicant, having failed in the appeal, must pay the Director’s costs.

Disposition

93.Accordingly, we make the following order:

(1)  The appeal is dismissed.

(2)  The applicant pays the putative respondent the costs of the appeal, to be taxed if not agreed.

The applicant, unrepresented, appeared in person.

Mr Jonathan Chang, instructed by Department of Justice, for the putative respondent.