Woo Tak Yan v. Equal Opportunities Commission

HCAL 1139/2020

[2022] HKCFI 1775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1139 of 2020

Application for Leave to Apply for Judicial Review

Notification of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by The Honourable Mr. Justice Wilson Chan:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.In the Form 86 dated 9 June 2020, “Decision of 10.3.20 by EOC” being challenged appears to be the Equal Opportunities Commission (“EOC”)’s views set out in its letter dated 10 March 2020 (“Reply Letter”) in reply to a “service complaint” lodged by the Applicant on 11 January 2020 against an EOC officer regarding his handling and assessment of the Applicant’s disability discrimination complaint (“DD Complaint”). A letter acknowledging receipt of the service complaint was issued to the Applicant by the EOC on 14 January 2020. The relevant decision communicated by the EOC in its Reply Letter was that, in respect of the service complaint, the “EOC has viewed that [the EOC officer] has handled the [DD Complaint] in accordance with the operational procedures and that the case has been assessed in an impartial manner”. The Reply Letter did not contain the decision of “upholding its 11 Dec 19 letter” as stated in the Form 86. In the premises, the application by the Applicant is misconceived.

2.Moreover, even if, in substance, the decisions that the Applicant intends to challenge in the present application were “no extension of deadline set in its 12 Nov 19 reply” and “the conclusion on discontinuing its investigation of the Complaint”, which were conveyed to him by the EOC’s letter dated 11 December 2019 (ie not the Reply Letter dated 10 March 2020), I agree with EOC’s contention that the present application should be dismissed on the grounds that: (1) there was undue delay in the present application; and (2) none of the proposed grounds is reasonably arguable.

Grounds for judicial review

3.The “grounds” stated in the Form 86 were not clear. However, it appears that in substance the Applicant contends that:

(1)  it was unfair that the EOC did not extend the deadline of 26 November 2019 set out in the EOC’s letter dated 12 November 2019 (“Penultimate Letter”) because the Applicant only received the Penultimate Letter on 27 November 2019;

(2)  the decision of the EOC to discontinue investigation of the DD Complaint (“Discontinuing Decision”) was unreasonable; and

(3)  the reasons provided by the EOC to explain the Discontinuing Decision was inadequate because it failed to disclose and/or specify the information it relied on, together with its analysis on such information, in reaching such decision.

Issue of Delay

4.There was an undue delay in the present application in that it was made more than three months after the date when grounds for the application first arose on 11 December 2019. The Applicant did not provide any explanation for the delay. I agree there is no good reason for the Court to extend the period within which the application can be made.

Merits of the DD Complaint - the Applicant’s case and EPD’s response

5.The present application arises from the DD Complaint lodged by the Applicant against the Environmental Protection Department (“EPD”) under the Disability Discrimination Ordinance, Cap 487 (“DDO”) on 21 March 2018. A brief summary of the Applicant’s case and the EPD’s response is as follows.

6.The Applicant joined the EPD in August 1989. He suffered from depression and another illness (collectively “Disability”), the details of which are not relevant to the present application. Between March and August 2012, he was absent from the office for 10.5 days (“Absence”) without providing medical certificates as required.

7.In the DD Complaint, the Applicant alleged disability discrimination in that:

(1)  In March 2018, the EPD deducted HK$ 20,656 from the Applicant’s salary in February 2018 for the Absence.

(2)  The EPD refused to let him use his earned vacation leave to cover the Absence.

(3)  In September 2018, the EPD decided to assign the Applicant to a new position despite his objections based on medical reasons.

8.In response, the EPD claimed that:

(1)  It had knowledge that the Applicant suffered from anxiety depression in January 2007. From July 2008 to June 2009, the Applicant attended office for less than 10 days whereas he took over 230 days of sick leave with the support of medical certificates issued by a private medical practitioner.

(2)  To prevent possible abuse of sick leave arrangement, the EPD required the Applicant to submit medical certificates issued by a Government or Hospital Authority clinic or medical officer (“Valid Medical Certificates”) whenever he applied for sick leave. Since the Applicant failed to provide Valid Medical Certificates despite the EPD’s repeated requests, his applications for sick leave for the Absence were rejected.

(3)  It is untrue that the EPD did not permit the Applicant to use his earned vacation leave to cover the Absence as alleged. Since 2012, the Applicant failed to apply for vacation leave to cover the Absence despite the EPD’s repeated requests. In February 2018, after the EPD issued an ultimatum, the Applicant submitted a leave application form on which “days applied for” and other required information were missing. The EPD was therefore unable to process his leave application. Eventually, in March 2018, the EPD determined that the Absence was unauthorized and deducted the Applicant’s salary for February 2018 to cover the Absence in accordance with Civil Services Regulation.

(4)  According to the EPD’s posting policy issued in 2004, staff who have worked in the same group for more than 5 years would be subject to posting arrangement. Given that the Applicant had worked in the same group for more than 5 years since August 2012, he was included in the list of candidates to be considered in the annual posting exercise in 2018. The EPD had already reviewed the Applicant’s medical issues before deciding his new posting.

EOC’s investigation of the DD Complaint

9.When the EOC conducted investigation into the DD Complaint pursuant to the DDO, one of the main issues was to assess whether there was sufficient evidence to show that the Applicant was treated less favourably on the ground of his Disability when comparing with another person without a disability in similar circumstances (sections 6 and 8 of the DDO).

10.After reviewing all the information gathered from both parties, the EOC took the view that there was no sufficient evidence that the alleged unlawful acts were done on the ground of his Disability. Rather, it appears that:

(1)  the deduction of Applicant’s salary was caused by the fact that Applicant failed to comply with the EPD’s repeated requests to him to make a valid application for vacation leave to cover the Absence;

(2)  the Applicant’s allegation that the EPD did not permit him to use his vacation leave to cover the Absence was untrue;

(3)  The EPD followed its posting policy to assign the Applicant to a new post in a different group after the Applicant had worked in the same group for 5 years.

11.Based on the above findings, the DD Complaint does not have merits. The EOC therefore made the Discontinuing Decision on the ground of “lacking in substance” under section 80(4)(e) of the DDO.

EOC’s refusal to extend the deadline for the Applicant to reply

12.The EOC’s Penultimate Letter dated 12 November 2019 was to inform the Applicant that the EOC was considering discontinuing investigation and ask him to provide new information, if any, by 26 November 2019 before the EOC made a final assessment. Reasons for the EOC’s intended decision of discontinuing investigation were provided in the letter.

13.Consistent with previous correspondence with the Applicant, the Penultimate Letter was sent to the contact address provided by him. The EOC’s record showed that the Penultimate Letter was sent to the Applicant by registered post on 12 November 2019, the same day that it was issued.

14.The EOC issued a letter on 27 November 2019 informing the Applicant of the Discontinuing Decision since it did not receive any reply from the Applicant by 26 November 2019.

15.By an email dated 28 November 2019, the Applicant requested an extension of time to reply to the Penultimate Letter for the reason that he only managed to collect the Penultimate Letter on 27 November 2019. In the said email, he provided no explanation as to why he failed to collect the Penultimate Letter in a timely manner, nor did he indicate that he had new information to be provided to the EOC for consideration. Instead, he asked the EOC to provide him with the specific information that the EOC relied on in reaching the Discontinuing Decision together with its analysis within 7 days. He also threatened the EOC’s handling officer with lodging a complaint of misconduct in handling the DD Complaint.

16.In fact, all the information provided by the EPD had been forwarded to the Applicant for comment by the EOC’s letter dated 17 January 2019, and the Applicant provided his comments by his letter dated 25 March 2019. Therefore, an opportunity to make representation had already been given to the Applicant, and he had already made representation accordingly.

17.Extension of time for the Applicant to furnish his reply to the EOC had been previously given to him on at least three occasions. Further, after the Applicant provided his comments in March 2019, he had nearly 8 months to provide additional information to support the DD Complaint if he so wished before the Penultimate Letter was issued on 12 November 2019. However, he never indicated that he had new information to provide despite being notified by the EOC in August and October 2019 that the DD Complaint was under review. In the circumstances, I agree it was not unfair or unreasonable for the EOC, in its letter dated 11 December 2019, to refuse his request for extending the deadline to reply to the Penultimate Letter.

18.The Applicant had never indicated what new information he would have provided to the EOC if an extension of time had been granted to him. By failing to show that he had suffered a substantive prejudice by the EOC’s refusal to extend the deadline, the refusal could not amount to a breach of natural justice. As a whole, the EOC has handled the DD Complaint properly.

Reasonableness of the Discontinuing Decision and adequacy of the reasons given

19.As shown by the information summarised in paragraphs 5 to 8 above, I agree the EOC has sufficient evidential basis to form the view that the alleged unlawful acts were not done on the ground of the Applicant’s Disability. The Discontinuing Decision is not unreasonable in the public law sense.

20.The principles applicable in deciding whether the reasons given by a decision-maker are adequate in a public law challenge has been summarised by Anderson Chow J (as he then was) in Rai Rajendra Kumar v Director of Immigration [2019] 5 HKLRD 410 at §§17-19. In essence, reasons can be brief but must meet the requirement of fairness so that the person adversely affected by a decision should have an adequate indication of the reasoning process, enabling him to know whether the decision-maker has addressed his grievance and whether there may be a basis for challenging the decision.

21.The EOC provided its reasons for the Discontinuing Decision in the Penultimate Letter dated 12 November 2019. The three main alleged unlawful acts complained of by the Applicant (ie salary deduction, refusal to use vacation leave, new posting) were addressed by the reasons. Relevant information was referred to in the reasons to explain why the EOC took the view that the alleged acts did not amount to discrimination under the DDO. I agree that the reasons, taken as a whole, are sufficiently clear and adequate so as to meet the requirement of fairness as stated above.

Conclusion

22.The proposed judicial review is not reasonably arguable with a realistic prospect of success. For the above reasons, leave to apply for judicial review is refused.

Dated the 14^th day of June, 2022.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1