Tsang Kwok Wing v. Secretary for The Civil Service

HCMP003827/1996

1996, No.MP3827

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Hon Patrick Chan, J. in Court

Date of hearing: 3 February 1997

Date of handing down judgment: 9 April 1997

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J U D G M E N T

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1. The applicant was a Senior Hawker Control Officer with the Urban Services Department. On 13th December 1995, after a disciplinary hearing conducted by an Investigating Committee, he was "awarded" compulsory retirement by the Secretary for the Civil Service. He applies for a judicial review of this decision and seeks an Order of certiorari to quash such decision.

Background

2. The applicant joined the Urban Service Department in November 1977. His postings relevant to the present proceedings were as follows :

(1) in the Wong Tai Sin Office - from August 1987 to December 1990;

(2) in the Shum Shui Po Office - from December 1990 to April 1994; and

(3) in the Mongkok Office - from April 1994 until 5th August 1996 when was asked to retire.

3. The title of his post was Overseer (General Duty Team). He was under the supervision of two Senior Overseers and a Senior Health Inspector, while he supervised a team of 15 foremen and workmen. The duty of his team was to take enforcement action against illegal hawking activities. They were required to have routine patrol regularly and to conduct special operations outside office hours, either early in the morning or late at night. Sometimes when they finished work, it would be well after the normal office hours. In other words, the applicant and his colleagues often worked overtime. They were however not paid for their overtime but were allowed to take time-off which was described as "compensation leave".

4. There was an attendance book in each office. All officers were required to make a record of the times when they reported for duty and the times when they went off duty everyday. If it was not possible or convenient for any officer to record the time he went off work, he could either do it at a sub-office on that day if he was there or on the following day at the office at which he was posted.

5. It is not disputed that there was, regrettably, no official record of any kind of how much overtime each officer had worked and hence how much compensation leave had been accumulated by him. The original idea was that compensation leave would be taken shortly after the overtime. Each officer would have a notebook recording, amongst other things, the amount of overtime he himself had worked. Whenever he wanted to take compensation leave, he had to seek permission from his superior in advance. In other words, compensation leave was not to be taken by the officer as he pleased but could only be taken with the prior approval of his superior.

6. It is also not disputed that there was no official record of when such compensation leave was taken by the officers. However, it was the practice that there would be a note or entry to this effect in the attendance book. The officer who took compensation leave would also make a record in his own notebook of the date of such compensation leave. His superior would sign or endorse in that notebook. It would appear, from the evidence of the superiors given at the disciplinary hearing, that the making of notes or entries in the attendance book or the officer's notebook was not strictly complied with. At least some of the officers did not always do so. But there should normally be either a note or an entry in the attendance book or in the officer's notebook with the endorsement of his superior.

7. From time to time when an officer had reason to go off duty a little early, he would seek the approval of his superior. Such absence was described as "special leave". Approval would normally be given verbally and there would be no official record of such absence. It is only fair to point out that special leave was only for the convenience of the officers and would normally be not more than a short time. At least that was the understanding among all officers. There was no, or at least no satisfactory, record of such special leave since it was most of time given by verbal permission.

Investigation

8. Some time in 1994, the Department received a complaint against the applicant. Following from some internal inquiries, in October 1994, the applicant was asked to explain his unauthorized absence from duty on 69 occasions, making false entries in the attendance book with regard to the time he either reported for duty or went off duty on 64 occasions and having left Hong Kong whilst on sick leave. The applicant made a statement in response and explained that he left Hong Kong because he had suffered neck pain as a result of stress from work and went to Zhuhai in China for treatment. He said that his absence from duty was all approved by his superiors. He had accumulated a lot of compensation leave because of his overtime work. He had sufficient compensation leave to offset the time he had spent on receiving treatment. He said that because of lapse of time, he could not remember what happened in respect of those 69 occasions but he was sure that it was not unauthorized absence since all his departures from Hong Kong were during his special leave or compensation leave. He explained further that because he did not have any sick leave certificate, he entered his normal arrival and departure times in the attendance book. He said that he had forgotten whether he had gone to see a doctor or was on leave and had mistakenly written the usual time off in the attendance book. He said that his signature was a simple one and could easily be forged. It was possible that someone had forged his signature in the attendance book while he was on leave but he was not sure of that. With regard to leaving Hong Kong without permission during sick leave, he said that he did not know that he had to obtain approval from the Department.

9. His various superiors during the times when he was posted to different offices made various comments on his explanations.

10. Finally, it was decided that the applicant's explanation was not satisfactory and that a disciplinary hearing had to be held. The applicant faced three charges :

(1) being absent from duty without leave or permission on 69 occasions between March 1988 and January 1994;

(2) making false entries on the attendance book on 64 occasions; and

(3) leaving Hong Kong without permission while on sick leave.

11. The applicant pleaded guilty to charge (3) but not guilty to the two other charges.

12. Four witnesses gave evidence before the Investigating Committee. They were all his superiors during the relevant periods at different offices. Mr Ma Kwok Wing was his superior in the Wong Tin Sin office between March 1988 and November 1990. Mr Lau Chun Wah was his superior in the Shum Shui Po office between December 1990 and July 1992. Mr Tam Kam Tong was a superior in the Shum Shui Po office between August 1992 and April 1993. Finally Ms Cheung Sui Chun was his superior in the Shum Shui Po between June 1993 and January 1994. The applicant also gave evidence.

13. Having considered all the evidence and submissions, the Investigating Committee found the applicant guilty of the other two charges. It made a report of its findings to the Secretary for Civil Service. The Secretary decided to award the applicant compulsory retirement with deferred pension. The applicant was not satisfied with that decision and award. Hence, this judicial review.

14. The applicant seeks to challenge the finding of guilt made by the Investigating Committee. It is of course the Secretary for Civil Service who accepted such finding and made the "award" against the applicant. There is nothing to show that the Secretary had considered anything else other than the finding of the Investigating Committee. It is therefore the report of the Investigating Committee which has to be considered in this judicial review.

Burden and standard of proof

15. One of the main grounds relied on in this application is that the Investigating Committee was wrong to require the applicant to prove that he had permission or approval when he was absent on the days set out in the register. It was also wrong to require the applicant to prove that the signatures in the attendance books were forgeries. Counsel argues that it is for the complainant (the Department) to discharge such burden of proof. It is submitted that what the Investigating Committee said in its report gives the impression that it had merely looked at the documentary proof and not dealt with the evidence of the witnesses including the applicant. It is said that the Committee had wrongly expected that the applicant was to prove his own innocence.

16. After hearing the evidence from the witnesses and the applicant, the Committee said at p.245 of the bundle :

"Based on the dates as shown in the attendance books for Mr Tsang, his duty roster and movement records provided by the Immigration Department, it was firmly established that Mr Tsang was absent from duty on the 69 occasions listed in the first charge.

Mr Tsang argued that his absences were authorized because they were compensation leave or special leave taken with permission from his supervisors. However, he had not recorded any of the absences in question in the attendance book, nor had he been able to produce any documentary evidence to substantiate his claims. In the circumstances, Mr Tsang's allegation that all the 69 absences were covered by permission or leave was unfounded.

While noting that no proper system was established in Mr Tsang's offices in handling overtime and compensation records, the Committee was of the view that the malpractice could not be accepted as a reasonable explanation of Mr Tsang's absence from duty. On the evidence adduced by the Assisting Officer, which was not contradicted by credible evidence produced by the accused officer, the Committee concluded that Mr Tsang was guilty of the first charge."

17. It is clear that documentary evidence, namely, the attendance book, duty roster, leave record and movement records of the Immigration Department were placed before the Investigating Committee. These documents showed that the applicant was indeed absent and not in Hong Kong during the times he said he was working in the office. This was evidence showing that he was absent on those 69 occasions as set out in the charge. There was no record of any formal vacation or causal leave on those occasions. Nor was there any no record in the attendance books or any other book showing that the applicant's absence was compensation leave or special leave. The applicant gave his explanation in the form of his statements and evidence. These were considered by the Investigating Committee. All that the report meant to say was that because of the record and the evidence adduced by the assisting officer, unless there was anything coming from the applicant which could persuade the Investigating Committee to the contrary, the conclusion that can be drawn in the circumstances was that he was absent without permission or approval. The evidence adduced was sufficient for it to draw the inference of guilt. The Committee was satisfied that the applicant's evidence and explanation was not sufficient to displace that inference. I do not think that the Committee had required the applicant to prove his innocence. It must be borne in mind that members of the Investigating Committee were not lawyers. All they were doing was to express their views on the evidence in their own ways and as best they could.

18. With regard to the standard of proof, I do not think it can seriously be disputed that in this investigation, the livelihood (i.e. employment) of the applicant and his reputation are at stake. Hence, in my view, a very high standard of proof which is near to that of beyond reasonable doubt should be applied before he could be found guilty of the charges. On the other hand, if the applicant was required to prove anything, it must be the civil standard, i.e. the balance of probability. There is nothing in the report which indicates that the Investigating Committee had applied the wrong standard of proof.

Wrong findings of fact

19. It is submitted that the Investigating Committee was wrong in making some of the findings of fact. It is argued that the Committee had failed to give sufficient weight to the evidence of Mr Lau Chun Wah with regard to the making of a record of compensation leave in the attendance book. It is also alleged that the Committee had failed to find that Ms Cheung Sui Chun was evasive and not reliable. Several examples are given to illustrate that she was not to be believed : she had mixed up compensation leave with vacation leave; she was obviously wrong in saying that there was no official record for compensation leave; her evidence regarding the making of a record of compensation leave in the attendance book was inconsistent with the applicant's evidence; she was wrong to say that the applicant's staying late in the office should not be counted as overtime; her evidence was not consistent with regard to whether the special leave granted matched the days of unauthorized absence. It is said that Ms Cheung's evidence should not be given weight at all. Counsel also submits that the Investigating Committee was wrong in failing to notice that Mr Tam Kam Tong's evidence on whether an entry would be made in the attendance book was most evasive.

20. In summary, what Counsel has submitted is that the Investigating Committee was wrong to rely on the evidence of some of the witnesses and had not rejected some other pieces of evidence.

21. With respect, I do not think this is the correct approach in a judicial review. The Court is not hearing an appeal. It is exercising a supervisory function. It is asked to examine the decision-making process of the administrative tribunal. The Investigating Committee, like any other tribunal, had heard the evidence of the witnesses, considered the documents and records which were produced, heard the submissions made by the parties and then came to a conscientious decision. It had the benefit of observing the witnesses. It was in the best position to make an assessment as to who was telling the truth and who was more reliable. It was within its purview of inquiry to accept one witness rather than another. It is not the business of the High Court to examine all the evidence put before the Committee and to decide whether it was right or wrong to have believed any particular witness. The High Court can only interfere if the decision reached by the Committee is Wednesbury unreasonable.

22. The investigation against the applicant commenced as a result of a complaint to the Department and the ICAC. The main evidence against him came from the attendance book, leave records and the Immigration movement records. It is quite clear from these documents that the entries in the attendance book did not tally with those in the movement records. They showed that while the applicant was supposed to be working according to the attendance book, the movement records indicated that he was on his way out of Hong Kong passing through various checkpoints such as the Macau Ferry Terminal. This means that there were at least 64 entries in the attendance records which were incorrect. These entries were supposed to be made and signed by him. This formed the basis of the second charge.

23. In response to this charge, he raised two matters. First, there was an occasion that he and the other officers were asked to sign all the unsigned pages. He just put down the times he normally reported for work and went off duty and signed without checking against his own compensation leave record. He said that during those times, he was on authorised leave. Second, he said that since the attendance book was not securely kept, it was possible that somebody had forged his signatures while he was on leave but he could not be sure. At the hearing, he maintained that there could be forgeries of his signatures.

24. The first reason was hardly convincing. It was not a few entries but over 60. It is difficult to imagine that any responsible officer would simply sign and put down the normal times he went to work and went off duty on so many occasions. If he were telling the truth, he must have done this on more than 60 occasions. With regard to the second reason, the Investigating Committee did not make any finding that there were four forgeries. There were simply four entries of which the Committee was not sure. In respect of two, there was no direct relevance to the charge under consideration and in respect of the others, there was an apparent disparity between the sign-in and sign-out signatures. The Committee gave the benefit of the doubt to the applicant and found him not guilty of the charge relating to these two occasions.

25. I also find it very difficult to accept that any person would have forged the applicant's signatures on 60 odd occasions. It must be borne in mind that these occasions spread over a period from March 1988 to January 1994. During that long period, he had served under four different superiors and in two different offices. If they were forgeries, it would mean that there must be one or more than one persons who had forged his signatures over this period of six years and in different offices. Who would have done that? And for what purpose or motive?

26. Faced with the documentary evidence, it is certainly open to the Investigating Committee to make the finding that these entries in the attendance book were falsified. I cannot say that no reasonable tribunal would have come to such conclusion. It is not a conclusion which was Wednesbury unreasonable.

27. The first charge is of course different and separate from the second charge. However, as Counsel for the respondents says, they are not without relationship. I agree that not only are the 64 false entries related to the occasions when the applicant was not in the office or doing his duties, they also throw light on the first charge. The reason is that if the applicant had indeed been verbally given compensation leave or special leave, why was it necessary for him to falsify the 60 odd entries? Although there was no satisfactory record kept in the office, it is clear from the evidence of all these witnesses that there must either be a record in the form of a note or an entry in the attendance book whenever the applicant took compensation leave or there must be a record in his own notebook regarding such compensation leave. If the applicant had indeed taken compensation leave on these occasions, there was no need for him to subsequently falsify the sign-off times.

28. With regard to the taking of special leave, it is not disputed that if an officer finds it necessary to go off a little early on some urgent matters, verbal permission would be given by his superiors. There would be no record for such special leave. However, it has been accepted that for such kind of special leave, it would normally be a very short period of time, probably not more than a couple of hours. This is the case because if an officer is thinking of taking more than two hours or half a day off, that should not be the subject matter of special leave but of causal leave or compensation leave.

29. I have examined the particulars of the first charge, especially the times of unauthorized absence in terms of hours on those 60 odd occasions. I notice that on each occasion, the time from which the applicant was said to be not doing his duty or was not in the office was actually the time he passed through immigration checkpoints as recorded in the movement records of Immigration Department. This is because there was no way one could tell when the applicant left the office but only when he passed through the checkpoints. The record simply showed that on a particular day at a particular time the applicant was going through the immigration checkpoint while according to the attendance record, he should still be doing his duty or in the office. He had signed off duty at a later time. It is commonsense that it would require some time to go from his office in Wong Tai Sin or Shum Shui Po to any of the immigration checkpoints. On most of these occasions, the checkpoint was Macau Ferry Terminal. Taking an average of about 45 minutes to go from his office to the checkpoint, it would mean that on 19 occasions the applicant had already left off work for more than an hour or approximately two hours. It might still be argued that those were occasions when he had special leave. However, for the remaining 50 occasions, he would have left the office or left his duty for more than two to three hours. An examination of those times revealed that the applicant had gone off for the whole day on 5 occasions; for more than half a day on 22 occasions; taking the morning off on 3 occasions; and taking half day off on 20 occasions.

30. It would seem therefore that there was more than sufficient evidence before the Investigating Committee for it to draw the conclusion that the applicant was not taking either compensation leave or special leave on these occasions. I would say that the conclusion is almost irresistible. Having considered the materials placed before the Investigating Committee, I cannot say that the conclusion reached was so Wednesbury unreasonable as to call for an interference by the High Court.

Sentence

31. The applicant also appeals against the sentence. He was awarded early retirement with deferred pension. Counsel argues that in the light of his working record and his good recommendations during his career with the Department, and by way of comparison with another colleague, the sentence was too harsh.

32. I have before me an affirmation from the Deputy Secretary for Civil Service setting out the guidelines with regard to this type of "offence". It cannot be said that what the applicant had done in the present case was not serious. He had been absent from work and had falsified entries in the attendance book on over 60 occasions. That is certainly not the proper conduct of a responsible officer. The applicant was also in a position in which he was required to supervise some junior staff. This misconduct is clearly unacceptable. The kind of award or sentence to be passed by the Secretary for Civil Service was within the guidelines and his discretion. There is nothing to persuade me that he had exercised he discretion wrongly in the sense that he had taken irrelevant factors into consideration or had omitted to consider relevant factors. Bearing in mind that this is a judicial review, I do not think it is proper or in fact open to me to interfere with the exercise of such discretion which is entrusted to him under the Civil Service Regulations.

Conclusion

33. For the reasons which I have given above, I see no merit in the application. It must be dismissed. I would also make an order nisi that the applicant should pay the costs of the respondents.

Representation:

Mr Tracy Chan, inst'd by M/s Paul C.W. Tse & Co, for Applicant

Mr Robert Whitehead, inst'd by A.G., for Respondent