Li Chi Sum v. Secretary for Justice for and on behalf of the Director of Fire Services

CAMP 27/2020

[2020] HKCA 529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 27 OF 2020

(ON AN INTENDED APPEAL FROM DCEO NO. 11 OF 2017 AND DCEO NO. 5 OF 2018)

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BETWEEN

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(Consolidated by the Order of Mr Registrar Ho
of the District Court dated 28 February 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I. Leave to appeal

1.1The claimant has lodged two proceedings against the Secretary for Justice for and on behalf of the Director of Fire Services (‘the Director’), namely, first, an action against the Director for disability discrimination, breach of employment contract and negligence (DCEO 11/2017) and second, a claim for breach of employment contract (DCCJ 5720/2017).  The two proceedings are now consolidated as DCEO 5/2018.

1.2The respondent applied successfully before H H Judge Winnie Tsui to stay DCEO 5/2018 ‘pending the conclusion of the disciplinary proceedings in respect of the Claimant’s suspected disciplinary offences committed between January and July 2012’.

1.3The claimant unsuccessfully applied for leave to appeal against the stay.  He now renews the application before us which we will consider on paper.  The claimant appears in person and provides a written submission for his renewed application but before us there is also a written submission prepared by his former counsel who appeared below.

1.4The basis of the stay is that the Director, in the exercise of the duties under the disciplinary proceedings (‘the 2^nd disciplinary proceedings’) qualifies as a judicial tribunal and his findings will operate as res judicata in DCEO 5/2018.  The Judge had stated that this would be a very strong, if not decisive, factor in favour of a stay : this is because to allow the two proceedings to run in parallel, time, efforts and costs will unnecessarily be incurred twice on the overlapping issues.  The Judge also considered the stay application as a matter of case management.  She held that in light of the common factual issues, it is undesirable, if not unworkable, for [DCEO 5/2018] to go ahead when the second disciplinary proceedings are under way.  She held that the claimant will not be prejudiced by the stay.

1.5The two proceedings were commenced at a time when the claimant was seeking to quash the findings and punishment (‘the Director’s decision’) of an earlier disciplinary proceedings (‘the 1^st disciplinary proceedings’) brought against him by the Director.  By the decision of Wilson Chan J given on 9 March 2018 the claimant was successful in quashing the Director’s decision.  The Director later gave notice to commence the 2^nd disciplinary proceedings on 31 October 2019.

1.6In terms of the exercise of discretion and case management by the Judge, the Judge’s decision is heavily influenced by her view on the nature of the 2^nd disciplinary proceedings and the effect of its findings.  We are of the view that these are reasonably arguable issues for the purpose of an application for leave to appeal.

1.7The Judge had correctly stated that the two proceedings represented by DCEO 5/2018 were commenced by the claimant as of right, but the significance of this right does not seem to have been fully explored.  ‘As of right’ does not simply mean that the two proceedings were commenced by the claimant first.  More significantly it means that the claimant’s right in respect of his claim under these two proceedings had already accrued well before the Director notified his intention to commence the second disciplinary proceedings.  How the findings of the second disciplinary proceedings could possibly affect the accrued right of the claimant is a highly relevant consideration for the purpose of the stay which seems to have been overlooked by the Judge.  That there is a wrong exercise of discretion and error in case management is, in our view, a reasonably arguable point.

II.  Our view

2.1Accordingly we will grant leave to appeal and give the following directions :

1)     The claimant is to file and serve a notice of appeal as per the draft annexed to the summons dated 6 May 2020 within seven days of this decision.

2)     The intended appeal is to be heard on an early date within three months of the handing down of this decision, before a division of two judges, with three hours estimated.

2.2We urge the Director of Legal Aid to continue to grant legal aid to the claimant for these issues to be properly argued by counsel.

2.3Costs of the application will be in the cause of the appeal.

Claimant, unrepresented, acting in person

Ms Kay Seto, instructed by the Department of Justice, for the respondent