In Re Chan Tak Shing
Read the full judgment text of HCAL 25/1998 on BabelCite. This High Court CFI judgment was delivered on 15 September 1998.
1. The Order deals with the appointment, dismissal, suspension and discipline of public officers. The relevant parts of the Order say this -
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HCAL000025/1998 1998, No. AL 25 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CHAN TAK SHING Applicant
Coram: The Hon Mr Justice Findlay, in Court Date of hearing: 10 September 1998 Date of handing down of judgment: 15 September 1998 _______________ JUDGMENT _______________ The Decision This is an application to judicially review a decision of the Chief Executive of the Hong Kong Special Administrative Region communicated to the applicant, a serving police inspector, by a letter from the Secretary for the Civil Service dated 5 February 1998 that the applicant be retired in the public interest under section 12 of the Public Service (Administration) Order 1997 (the Order). The Order 1. The Order deals with the appointment, dismissal, suspension and discipline of public officers. The relevant parts of the Order say this -
The Procedure In chronological order, the procedure that was followed leading to the challenged decision was as follows -
Illegality The first point argued by Mr Dykes is that the Chief Executive committed an error of law in that he should not have proceeded under section 12 of the Order. The complaint was one of misconduct, so, Mr Dykes argues, it was more appropriate to use the procedure provided by sections 9 or 10 of the Order. This is especially so, it is said, because, under sections 9 or 10, the applicant would have had a better opportunity of presenting his case, with better procedural safeguards. Under sections 9 and 10 of the Order, the Chief Executive has form the opinion that an officer has been guilty of misconduct before any punishment may be inflicted. Under section 12, the Chief Executive has to be of the opinion that the termination of the officer's service is desirable in the public interest. It is perfectly clear on the papers before me why the decision was made to proceed under section 12 rather than sections 9 or 10. The simple fact of the matter is that there was insufficient evidence to establish that the applicant was guilty of participating in the robbery to the degree required. Nevertheless, there was sufficient evidence for the Commissioner to come to the belief that the applicant had so participated, and, therefore, that he could no longer trust the applicant. The basis on which the action under section 12 was taken was this lack of confidence in the applicant, and the basis for this lack of confidence was the evidence of the applicant's conduct. It cannot be said, in my view, that the Commissioner's attitude, and the Chief Executive's decision in support of that attitude, was in any way irrational. Indeed, Mr Dykes did not seek to argue that this was so. In my judgment, it would have been irrational for the Commissioner to contemplate, and the Chief Executive to allow, the applicant to continue as a serving police inspector in the light of the information before them. In these circumstances, it seems to me, it was entirely appropriate to proceed under section 12. Indeed, it would have been inappropriate to proceed under sections 9 or 10 because it would have doubtful if the Chief Executive could have formed the honest opinion that the applicant had been guilty of misconduct so that punishment was merited. Procedural Unfairness This complaint, as I understand it, rests on the basis that the applicant did not have the opportunity to comment on all the documents placed before the Chief Executive. In particular, the minute of 15 January 1998 and the "Comments on Written Representations by Inspector CHAN Tak-shing" were not disclosed to the applicant. Section 12 of the Order requires that "The officer shall be informed of the grounds on which his retirement is contemplated under this section and be given an opportunity to make representations.". The applicant was so informed and given that opportunity. The minute of 15 January 1998 and the "Comments" did not contain any new or additional grounds not made known to the applicant. The applicant was fully aware of the grounds and had every opportunity of commenting on them. It must be kept in mind that the ground was the Commissioner's absence of confidence in the applicant based on the suspicions he had formed arising from the applicant's conduct. Of that the applicant was fully informed and the applicant commented extensively on that ground. Mr Dykes argues that the Chief Executive should not have had before him any documents other than those contemplated by section 12. He says that subsection (2) contemplates that the Chief Executive should considered only "the report and . . . any representations submitted under subsection (1)". That seems to be right, but the "representations submitted under subsection (1)" include representations, not only from the applicant, but also those submitted to him "that the retirement of an officer is desirable in the public interest". In my view, nothing placed before the Chief Executive fell outside the parameters of the documents he was required to consider. Procedural Impropriety The next point raised by Mr Dykes is that the proper procedure provided under section 12 was not followed. The proper procedure, he says, involved the following steps -
2. Mr Dykes says that the Chief Executive did not call for any report, or, if there was a report, it was not placed before, or considered by, the Chief Executive. I do not think that it is necessary for the Chief Executive to call for a report before he is able to exercise his jurisdiction under section 12. It may be, of course, that the Chief Executive may wish to have a report if he considers that the representation does not contain sufficient information. Or, it may be that the representation is from one department, and the Chief Executive wishes to have a report from another department in which the officer has served. But it would be sheer nonsense to read the section as requiring the Chief Executive to call for a report when he does not see the need for one. As in this case, the officer may have served in only one department. The representation contains all the information the Chief Executive needs. Is it to be said that, in these circumstances, the section requires him to call for a report from the same department? Is he to say to the department - "I have all the information I need in your representation, but please give me a report containing the same information."? That does not make any sense. And it may be that there is no department in which the officer has served. The Order draws a distinction between a "government bureau" and a "department". What if the officer is a member of the secretariat, and has never served in a department? Does that mean that section 12 does not apply to him? I think not. The purpose of the report is to inform the Chief Executive if he so requires this. If he does not require a report, there is not need for him to go through the pointless exercise of calling for one. The section does not say that the grounds to be conveyed to the officer must be extracted from the report. In fact, the wording of the section leads more naturally to the conclusion that the grounds would come from the initial representation that the retirement is desirable in the public interest. The Result In the result, I find that there is no sound basis for any of the complaints raised by the applicant, and his application is dismissed. The Costs The question of costs has not be argued, but I see no obvious reason why they should not follow the event. I make an order nisi that the applicant pay the respondent's costs. JK FINDLAY Judge of the High Court Representation: Mr Philip Dykes, SC, instructed by Messrs Jesse HY Kwok & Co, for the applicant. Mr Nicholas Cooney, instructed by the Secretary for Justice, for the respondent. Remarks: |