Re Wan Kam Wing

Case No.CACV 68/1985

Court

Court of Appeal

Date06 Jun 1985

Judge—

Case Document

100%Judiciary

CACV000068/1985

IN THE COURT OF APPEAL	1985, No. 68
	(Civil)

IN THE MATTER of an application by WAN KAM WING for leave to apply for Judicial Review

and

IN THE MATTER of a disciplinary inquiry by the Commissioner of Customs and Excise under the Customs and Excise Service (Discipline) Rules Cap. 342

_________

Coram: Cons, Fuad & Kempster, JJ.A.

Date of hearing: 6 June 1985

Date of delivery of judgment: 6 June 1985

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JUDGMENT

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Fuad, J.A.:

1. This appeal arises from the refusal by Rhind, J. on 18 April this year to grant leave to the Appellant to apply for judicial review.

2. This is how the matter arose. The Appellant is Mr. Wan Kam Wing, an Inspector of Customs and Excise, who has been in the service now for over 25 years. On 18 May 1984, he was served with a charge sheet charging him with two disciplinary offences, in accordance with the procedure laid down in the Customs and Excise Service (Discipline) Rules ("the Rules"), made under s.16 of the Customs and Excise Service Ordinance Cap. 342 ("the Ordinance"). The disciplinary offence alleged in the first charge was failing to obey two lawful orders given orally by a superior officer contrary to r.3(e) of the Rules, and that alleged in the second charge was prejudicing, by his conduct, the good order and discipline of the service contrary to r.3(m).

3. The Commissioner appointed a Superintendent under r.5(1)(b) of the Rules, read with s.7(2) of the Ordinance, to hear and determine the proceedings, and a Senior Inspector to act as prosecutor under r.6(1). The hearing began on 26 June 1984. The prosecutor called five witnesses and Mr. Wan himself gave evidence and called one witness. On the afternoon of the same day, the Superintendent announced his finding that Mr. Wan was guilty and stated he would tell him his "reasons and my judgment" on 28 June. This duly happened on that date.

4. Mr. Wan appealed to the Commissioner as provided by r.21 of the Rules. His appeal was dismissed on 3 September but one of the punishments (we do not know what they were) was remitted. A further appeal to the Governor failed on 24 November. I would remark in passing that I am by no means certain that when Part V of the Rules is read as a whole, an appeal lies to the Governor in the circumstances of this case, but in the light of the conclusion I have reached, the issue does not fall for determination.

5. Mr. Wan took out his application for judicial review on 13 March 1985. He sought an order for certiorari to remove to the High Court and to quash the decision made by the Superintendent on 28 June 1984. His grounds were:

	(a)	that the Superintendent had announced his finding of guilt without giving him a chance to address him as required by r.8(8) of the Rules; whereby he had been denied a fair trial;
	(b)	since the first charge did not make reference to standing orders, the Superintendent had erred in deciding that an order could be a "lawful order" within the meaning of r.3(e) whether it was a reasonable one or not;
	(c)	there was no evidence that the orders allegedly disobeyed were "lawful orders".

6. When the matter first came before Rhind, J. on 18 March 1985 he adjourned the hearing of the application and gave leave to Mr. Wan to file an affidavit to explain the reasons for the delay. In accordance with established practice, he ordered notice of the proceedings to be served on the Attorney General.

7. In his affirmation of 26 March, Mr. Wan, after giving the background up to 24 November 1984, said this:

"	4. I then sought Counsel's advice as to my further remedies in conference on 8th February 1985.
	5. I am informed by my Solicitors and verily believe that Counsel was briefed to draft the application herein on 12th February 1985.
	6. As Counsel needed time to read the record and as he also required further documents, the application herein could not be lodged until 13th March 1985.
	7. The reason why I could not seek legal advice earlier was because I was finding it difficult to raise the necessary legal fees."

8. After he had heard the application for leave to apply out of time, Rhind, J. in his "Ruling" said that he was satisfied that the three month period referred to in O.53, r.4(2) commenced to run on 28 June 1984 when the disciplinary proceedings were concluded. He noted that during the course of the day's submissions, it had come to his attention that it was not correct to say that the Applicant had first sought legal advice on 8 February 1985. He had in fact sought such advice for the purpose of lodging his appeal to the Commissioner. The judge had not been informed of the precise date when Mr. Wan had first sought such assistance, but it must have been before 3 September 1984 when his appeal was dismissed. The judge pointed out that his legal advisers, when first consulted, had not seen fit to seek leave for judicial review forthwith. Why they had refrained at that stage had not been explained.

9. The learned judge concluded his Ruling as follows:

"My own view is that if there is to be any review of internal proceedings in a disciplined force it should be conducted as swiftly as possible. A member of a disciplined force should either accept or challenge an adverse decision straight away. It can neither be conducive to good administration, nor to good discipline, to allow disciplinary decisions to be challenged ages after they were made. To allow late challenges creates uncertainty and serves to encourage morbid brooding over disciplinary measures, a state of affairs which can hardly be in the best interest of a disciplined service."

10. The Notice of Appeal against Rhind, J.'s decision gives the following grounds:

	(i)	the judge erred in holding that the 3 month period referred to in O.53, r.4(2) of the R.S.C. started to run from 28 June 1984;
	(ii)	his finding was against public policy in that it was likely to result in a multiplicity of concurrent proceedings;
	(iii)	the judge in reaching the conclusion that "it can neither be conducive to good administration nor to good discipline to allow disciplinary decisions to be challenged ages after they were made" erred in that:-

	(a)	the decision had not been challenged "ages" after it had been made, and
	(b)	he had failed to consider the effect on good administration and good discipline of an officer compelled to serve with a deep sense of grievance over what he considered were unfair disciplinary proceedings without being given the opportunity of having them tested in a Court of Law.

0.53, r.4(2) R.S.C. is in these terms:

"(2)

In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of paragraph (1) is 3 months after the date of the proceeding."

I think the meaning of 0.53, r.4(2) is quite clear and that the judge was right in holding that the three month period within which the application should be made ran from 28 June 1984. Mr. Wan was therefore 5 1/2 months late. Like the judge, I cannot accept that Mr. van Buuren's contention that time did not begin to run until the Governor had notified his decision on 24 November 1984. No complaint is made against what happened before the Commissioner or the Governor. The word "proceeding" in O.53, r.4(2) must refer to the hearing before the Superintendent.

11. I now turn to O.53, r.3(8) which is in these terms:

"(8)

Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceeding which is subject to appeal and a time is limited for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired."

It is clear, therefore, that the rules cater for the prejudice, dilemmas and difficulties suggested by Mr. van Buuren that were faced by the Appellant in view of rights of appeal within the administrative hierarchy.

12. In my view, the judge had an absolute discretion, to be exercised on ordinary principles, under O.3, r.5. Unlike the English O.53, r.4(1), our equivalent rule does not say "unless the Court considers that there is good reason for extending the period within which the application shall be made", and so the suggestion in the White Book, paragraph 53/1-14/28 (page 766 of the 1985 Edition) that the requirement that "good reason" be shown might limit the general powers of the Court to extend time under O.3, r.5, is not apposite.

13. Since the judge applied the law correctly, the Appellant must satisfy us that he exercised his discretion wrongly. He did not exercise his discretion in disregard of principle, nor did he misapprehend the facts or take into account irrelevant matters. No injustice will be occasioned as a result of his order. There are no special reasons on the merits that would make it desirable to allow the application for judicial review to proceed. I would, therefore, dismiss the appeal.

Cons, J.A.:

14. I agree with my Lord that O.53, r.3 makes it clear that the time runs from the conclusion of the proceedings before the Adjudicating Officer, that is, when the conviction which is the root of all the proceedings was recorded. The rules, as I read them, give rise to no problem which requires a public policy decision, as was suggested by Mr. van Buuren. With respect to him, his arguments are based on a misunderstanding of the different functions of this Court when exercising appellate powers and the High Court when exercising its power of judicial review. I, too, would dismiss the appeal.

Kempster, J.A.:

15. The Appellant being aggrieved by a disciplinary decision made on 26 June 1984 both as to the merits and as to the means by which the decision was reached, had distinct remedies available to him. On the merits he had a right of appeal within the perameters of the Disciplinary Rules to the Commissioner and possibly further. Those rights he exercised within the times provided by the Disciplinary Rules. On the means by which the decision was reached he had the right to apply for a judicial review of the disciplinary process in accordance with the provisions as to time to be found in O.53, r.4 of the R.S.C. In so far as these concurrent remedies could or might in any way prove embarrassing, O.53, r.3(8) provides the High Court with the appropriate discretion. In fact, not having complied with the rules as to time provided by O.53, r.4, as to the interpretation of which I agree with all that has fallen from my Lords, he made his application long out of time to Rhind, J. who refused it. The learned judge set out his reasons for such exercise of his discretion fully and not only do I find nothing to criticize in those reasons but I think that they were proper and, if I may say so, I would have come to the same conclusion myself. I agree that this appeal should be dismissed.

Representation:

Brian van Buuren (M/S Chung, Kwan, Chan & Evans) for the Applicant/Appellant.

N.L. Strawbridge for Crown Solicitor.