Lee Fun Shing v. The Director Offire Services

HCMP001855/1992

1992, NO. MP 1855

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Mayo in Court

Date of hearing: 26 March 1993

Date of delivery of judgment: 6 April 1993

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J U D G M E N T

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1. This is an application for Judicial Review. The Applicant who is a member of the Fire Services Department seeks a Certiorari quashing the findings of an Investigation held on the 8th April 1992 under Section 14 of the Fire Services Ordinance Cap. 95 and Consequential Declarations.

2. The facts are simple and in most important respects undisputed. The Applicant joined the Fire Services Department in 1972 as an Ambulanceman. He was promoted to being a Senior Ambulanceman in 1982.

3. In the evening of the 14th January 1992 he and members of his crew received an emergency call requiring them to attend at an address in the Ping Shek Estate, Kowloon.

4. On arrival at the address given, they saw an elderly Chinese gentleman. They were told by his son that he had fainted earlier in the evening and recently recovered consciousness.

5. The Applicant, who had received fairly extensive training in First Aid, examined the man and formed the opinion that he was not in a good condition and that he required immediate medical treatment.

6. He proposed to the son that his father should be taken immediately to the United Christian Hospital which is approximately 6 minutes drive from Ping Shek Estate.

7. The son said that as the family had a relative working at the Princess Margaret Hospital, they would prefer to have the patient taken to that Hospital.

8. It does not appear to be disputed that the princess Margaret Hospital is about 35 minutes drive from the address.

9. After some discussion the relatives indicated that they did not require the services of the Applicant. He then got them to sign a form of disclaimer and left.

10. Disciplinary proceedings were then instituted against the Applicant by his Department. The charge in the Disciplinary Charge Sheet read as follows :-

"You are charged that, without good and sufficient cause, you failed to carry out a lawful written order, contained in Amb Command Temporary Order No. 23/91 which is now incorporated in Amb Command Standing Order 3/1, in that you failed to comply with the request made by Mr. YU Fu-keung to convey his father to PMH at approx. 2032 hours on 14 January 1992 at Rm. 1132, Hung Shek House, Ping Shek Estate.

FS Ordinance Cap. 95
1st Schedule para. (2)"

11. The relevant part of Ambulance Command Temporary Order 23/91 reads :-

"3/1 General Conveyance and Treatment of Emergency Patients

(1) Subject to paragraphs 2 and 4, all emergency patients conveyed in Service ambulance should normally be taken to the designated hospital appropriate to the area in which the call originates.

(2) Ambulance Supervisors shall take an emergency patient to any hospital at the request of the patient or his relative.

(3) Upon receipt of the request at paragraph 2, if an Ambulance Supervisor considers that in view of the patient's condition, it would be advisable to take the patient to the nearest Accident & Emergency Department of a designated hospital, the patient or his relative should be so advised. Further, if the Ambulance Supervisor has prior knowledge that the hospital preferred by the patient or his relative is unwilling to accept the patient for treatment, the patient or his relative should also be so advised. If the patient or his relative still insists on the patient's being taken to that hospital, he should be requested to sign a request form (FSG 319) carried on the ambulance for this purpose."

12. The Judgment of the Presiding Officer of the Investigation was in this form :-

"Judgment Having heard all the evidence, I firmly believe that the defaulter had the intention not to convey the patient to any hospital other than UCH. The following points were in support :-

(a) There was no motive of the patient's relative to trump up a case to victimise the defaulter;

(b) The sequence of actions as stipulated in paragraph 2 and 3 of the Ambulance Command Temporary Order 23/91, which is now incorporated into Ambulance Command Standing Order 3/1, had not been carried out by the defaulter at all;

(c) The defaulter claimed that in view of the poor condition of the patient and for his best benefit, to convey the patient to UCH was more preferable than to PMH in terms of distance and time because the patient could be seen and treated by a doctor at UCH earlier. However, he eventually did not convey the patient to anywhere. Under that situation, he had in fact given up all the benefit of the patient. The claim of considering the best benefit of the patient, therefore, had served nothing more than an excuse.

Finding Guilty"

13. The Grounds in support of the application were :-

"1. The Applicant respectfully refers to his affirmation affirmed on 26th June 1992. The brief facts for the Application are set out at paragraph 6 thereof.

2. The investigation hearing was without jurisdiction as the charge against the Applicant is unlawful and void because :-

(I) Under Section 20 of the Fire Services Ordinance, the Director of Fire Services may only make orders which are not inconsistent with the provisions of the Fire Services Ordinance, Cap. 95.

(ii) The written order contained in Ambulance Command (Temporary) Order No. 23/91 is inconsistent with Section 7 of the Fire Services Ordinance, Cap. 95.

3. The Presiding Officer reached the decision which no reasonable tribunal, properly advised, could have reached:-

(I) He failed to consider whether there was a good and sufficient cause which was fundamental and formed an ingredient of the charge.

(ii) He found that the Applicant had not followed paragraph 3 of the Ambulance Command (Temporary) Order No. 23/91. This is inconsistent with particulars of the charge against the Applicant."

14. Mr. Leong for the Applicant submitted Temporary Order 23/91 was inconsistent with the duties of Fire Services Officers as laid down in Section 7 of the Ordinance.

"7. The duties of the Fire Services Department shall be to -

(a) extinguish fires; (Replaced, 55 of 1981, s.3)

(b) protect life and property in case of fire or other calamity; (Replaced, 55 of 1981, s. 3)

(c) give advice on fire protection measures and fire hazards as occasion requires; (Replaced, 55 of 1981, s. 3)

(d) assist any person who appears to need prompt or immediate medical attention by -

(I) securing his safety;

(ii) resuscitating or sustaining his life;

(iii) reducing his suffering or distress;

(e) convey -

(I) any person referred to in paragraph (d) to a hospital or other place where medical attention is available to him; and

(ii) in co-operation with the proper authorities, any person to or from any hospital or clinic to or from any other place, and administer care and attention to any person so conveyed;

(f) carry out such other duties as may be imposed on it by law or by any direction of the Governor; and

(g) do any thing which is necessary or desirable to carry out effectively any duty which is specified in this section or imposed under paragraph (f).

(Replaced, 29 of 1975, s. 5)

He attached particular importance to subsections (d), (e) and (g). He argued that if the relatives of a patient made an unreasonable request to the Ambulanceman this could very easily lead to a situation which frustrated the performance of the duties referred to.

15. He postulated several extreme examples of the sort of situations which could arise and the nature of the problems which may confront Ambulancemen.

16. The nub of the problems which may be encountered arise from the requirement for Ambulanceman to obey Orders from members of the public which may conflict with their Judgment of what the situation requires.

17. I was informed by Miss Shine for the Respondent that there were good reasons for the previous order which reposed in Ambulanceman a large measure of discretion being replaced by Order 23/91. While this may or may not be the case I do not think that I am able to enter into a consideration which very extend to policy matters.

18. The essential questions I have to consider are whether the Standing Order is illegal or irrational in a Wednesbury Sense.

19. I do not consider that the Standing Order can be illegal simply for the reason that hypothetical situations can arise where an Officer is placed in a difficult situation. I have no doubt that if an Officer disobeyed the directions given in the extreme examples postulated by Mr. Leong, no disciplinary action would be likely to be taken against the Officer. Alternatively if proceedings were commenced the Officer would be able to defend himself successfully.

20. In this connection it is noteworthy from the Judgment I have earlier cited that the Disciplinary Board came to the conclusion on the facts before them that the Applicant "had given up all the benefit of the Patient."

21. I am not convinced that the Standing Order is necessarily inconsistent with the duties laid down in Section 7 or that it is illegal.

22. The next question for me to consider is whether the Standing Order is irrational. I accept the submission made by Miss Shine that this is a formidable hurdle for the Applicant to surmount. The test was laid down by Lord Greene MR at p.233 of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1948 1 KB 223.

" In the result, this appeal must be dismissed. I do not wish to repeat myself but I will summarise once again the principle applicable. The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere the power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them. The appeal must be dismissed with costs."

23. I do not think that the Standing Order can be characterised as being so unreasonable that no reasonable authority could make such a Standing Order. There may well be good reasons why it should be necessary for an Ambulanceman to comply with the request made by a Patient or his relative to go to a particular Hospital. If the request is manifestly unreasonable I would expect the Ambulanceman to disregard it. In that event it may be necessary for him to justify his refusal at a subsequent time.

24. Mr. Leong did not strenuously pursue the issue on procedural impropriety. In my opinion he was right not to do so. I have no doubt that the Applicant was afforded a fair hearing.

25. For the reasons I have given I would dismiss this application. I make an order nisi that the Respondent is to have his costs.

Representation:

Mr. Alan Leong (Chung & Kwan) for Applicant.

Ms. L.M.A. Shine. S.C.C. (Attorney General's Chambers) for Respondent.