Wong Ho Ching v. Director of Food and Environmental Hygiene

HCMP003835/2002

HCMP 3835/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3835 OF 2002

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Coram: Deputy High Court Judge Lam in Chambers

Date of Hearing: 14 March and 19 May 2003

Date of Judgment: 3 June 2003

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J U D G M E N T

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1.The Plaintiff in these proceedings is a Senior Health Inspector employed by the Defendant. She had applied for promotion in the 2000 promotion exercise and was dissatisfied with the result. She also had grievance about a verbal warning administered upon her in September 2002 and certain remarks contained in her appraisal report for the period between 1 April and 29 November 2001. On 20 September 2002, she commenced the present proceedings by issuing an Originating Summons praying for three declarations,

1) that the verbal warning for negligence of duty given to the Plaintiff by the Defendant on 3 September 2002 is void or invalid;

2) that the decision of the Chief Health Inspector Promotion Board 2000 of the Defendant that the Plaintiff was not fit for promotion is void or invalid; and

3) that the remark given by the Endorsing Officer on behalf of the Defendant in Part 8 of the performance appraisal report of the Plaintiff for the period 1 April 2001 to 29 November 2001 that the Plaintiff should be held responsible for having insufficient supervision to the street washing gang is a false accusation against the Plaintiff and the subsequent crossing out of the remark by the Defendant does not remove the unfairly prejudicial effect on the Plaintiff.

2.The legal representatives of the Plaintiff repeatedly inform this court that the Plaintiff's claim is based on private law and these declarations were sought on the basis of the employment relationship between the Plaintiff and the Defendant. Hence, this is not an application for judicial review and no leave has been sought under Order 53. In her Eighth Affirmation filed in these proceedings, the Plaintiff explained that her case was based on express terms of her contract of employment embodied in the Civil Service Regulations ["CSR"] and five implied terms,

1) that she had the right to get promotion;

2) that she had equal opportunity in getting promoted;

3) that no disciplinary action shall be taken against her unless it can prove beyond reasonable doubt that she had committed a distinct breach of an offence punishable under the CSR;

4) that the Defendant would not act in an unfair and inequitable way when carrying out investigation and deciding whether the Plaintiff was guilty of disciplinary offence;

5) that the Defendant would not make any unfair, inaccurate and untrue assessment and comments in her appraisal reports.

3.From the skeleton submissions of Plaintiff's counsel, it can be discerned that the Plaintiff argued that these implied terms stemmed from the implied duty of trust and confidence between an employer and employee as laid down in Malik v Bank of Credit and Commerce International SA [1998] AC 20.

4.On 10 December 2002, the Defendant issued a summons for the striking out of the proceedings. Mr Paul Lam, counsel for the Defendant, informed this court at the hearing on 14 March 2003 that he primarily relied on the contention that the claims of the Plaintiff were frivolous and vexatious although he would also argue that the claims disclose no reasonable cause of action.

5.Mr Joseph Lam (counsel for the Plaintiff) was unable to attend the hearing on 14 March 2003 due to physical ailment but the Plaintiff's solicitor Mr Edward Cheung told the court that he did not have difficulties to represent the Plaintiff at that hearing. As it turned out, Mr Paul Lam did not complete his submissions on that date and the matter was adjourned part heard. The hearing was resumed on 19 May 2003 and Mr Joseph Lam was able to represent the Plaintiff on that date.

6.Both Mr Cheung and Mr Joseph Lam told this court that the Plaintiff would not claim for damages against the Defendant. The remedies sought were confined to the three declarations. Mr Joseph Lam accepted that this court should consider the striking out application by reference to the Plaintiff's merits in respect of the three declarations.

7.However, in the course of his submissions, Mr Joseph Lam proposed to modify declarations (1) and (2) by replacing those set out in the Originating Summons with the followings,

1) That the Defendant has negligently, unreasonably and unfairly issued a verbal warning on 3 September 2002 to the Plaintiff without complying with the Public Service (Administration) Order, the Public Service (Disciplinary) Regulation, the Procedural Manual on Discipline and the FEHD Administrative Circular No.42/2000;

2) That the Chief Health Inspector Promotion Board 2000 has acted unfairly, arbitrarily, capriciously or inequitably in arriving at its conclusions about the performance of the Plaintiff.

8.Based on the material placed before the court and the submissions by the parties, the three declarations could be divided into two categories. Declarations (1) and (3) are related to the investigations concerning the alleged shortcomings of the Plaintiff in the supervision of the street washing gang and the findings of the Defendant as a result of such investigations. These led to the subject remarks referred to in declaration (3) and the verbal warnings in declaration (1). On the other hand, declaration (2) related to a distinct matter, the decision of the Promotion Board in the promotion exercise of 2000.

9.As far as declarations (1) and (3) are concerned, it seems to me that the main concern of the Plaintiff was the blemish on her records and her main complaint was that she had not been given full opportunity to put forward her defence to the charge against her. Hence, in her Fifth Affirmation filed herein, she attempted to put forward an explanation which she said should satisfactorily answer the misconception that the street washing gang was being idled. She alleged that the investigating officer had jumped to premature conclusions.

10.The Plaintiff seems to have overlooked the fact that she had a right of appeal in respect of the verbal warning. This right is enshrined in Paragraph 4.7 of the Procedural Manual on Discipline issued by the Civil Service Bureau under CSB Circular 19/93 pursuant to Regulation 5 of CSR and Paragraphs 10, 16 and 17 of the FEHD Administrative Circular No.42/00. Such right was explained to her by the officer administering the warning when the warning was given as evidenced by the written report of such warning (exhibit "WHC-3").

11.Under the relevant rules, the Head of Department, viz. the Defendant had the power to review the warning and this was also set out in the written report. The Plaintiff misunderstood that she had the right to review (instead of a right to appeal). Unfortunately, the same mistake was adopted by her solicitors. Hence, in a letter dated 10 September 2002, the Plaintiff's solicitors wrote to the Defendant saying that the Plaintiff had reviewed the warning and concluded that it was void or invalid. The letter demanded the Defendant to withdraw the warning.

12.When this mistake was brought to the attention of the court at the hearing, the possibility for making such an appeal was explored. The Defendant very reasonably and fairly through counsel informed the court that the Defendant would be willing to consider such an appeal albeit the appeal is being brought out of time. Mr Joseph Lam very wisely accepted that offer on behalf of the Plaintiff and agreed to lodge an appeal within 14 days from 19 May 2003. Since her rights and wrongs regarding the allegations against her in the supervision of the street washing gang would be ventilated and vindicated in that appeal, the Plaintiff did not pursue her claims for declarations (1) and (3).

13.I shall however need to come back to declarations (1) and (3) on the question of costs.

14.Turning to declaration (2), it is necessary to set out some indisputable facts. It is noteworthy that the Plaintiff is seeking to challenge the decision of the Promotion Board in the 2000 promotion exercise. The exercise started by a letter dated 3 October 2000 sent to all Senior Health Inspectors informing them of the exercise. Those who wished not to be considered could inform the Appointments Section of the department. A criterion of at least five years' substantive service was adopted and the Plaintiff was included in the officers shortlisted. CSR 109(1)(a) spelt out the relevant considerations for the board. The board was convened from 16 to 18 October 2000. Appraisal reports of the shortlisted candidates were placed before the board and summaries of such reports were given to the members of the board in advance. The board also took into account of personal knowledge of its members on the character, ability and experience of the candidates. The board's decision was set out in a report produced as exhibit "HML-16". Ten officers were recommended to be substantively promoted to the rank of Chief Health Inspector. Attached to the report were assessments of each individual officers. The board did not recommend the promotion of the Plaintiff.

15.After endorsement by the Public Service Commission, the result of the exercise was announced on 26 March 2001 and put into effect. Hence, the Plaintiff was aware that the board did not recommend her promotion since that date. Mr Joseph Lam accepted that the Plaintiff did not raise any complaints until 10 August 2002 when her solicitors wrote to the Defendant alleging that the decision of the board was flawed.

16.It is quite remarkable that if the Plaintiff had genuine grievance about the result of the 2000 promotion exercise, she took no action until such a late stage. By 10 August 2002, those promoted officers have been performing their duties as Chief Health Inspectors for more than one year. Moreover, there had been another promotion exercise for 2001 and that board was convened on 18 March 2002. Notwithstanding so, the Plaintiff saw fit to seek a declaration from this court in terms of declaration (2) set out in Paragraph 1 above. Mr Joseph Lam has not been able to explain satisfactorily to me what were the legal implications of declaring that the decision of the board was void or invalid and whether it would affect those who had been promoted. Further, although the 2000 board did not recommend her promotion, the board did not actually say she was not fit for promotion. The board's assessment was that if the Plaintiff could keep up her effort, she would earn a chance for consideration for advancement in the next promotion exercise. It seems to me that the board considered there were better candidates in the 2000 promotion exercise and there is no justification for inferring any negative connotation against the Plaintiff from the result of the exercise. It was perhaps due to such difficulties that Mr Joseph Lam modified his declaration (2) to the one set out in Paragraph 7 above.

17.The Plaintiff applied for ex parte injunction before Sakhrani J on 30 September 2003 upon the issue of the Originating Summons. The order sought was as follows,

"That the Defendant be restrained and an injunction is hereby granted restraining him, whether by himself, or by his servants or employees or subordinates or colleagues or any of them whosoever or otherwise howsoever from approving or putting into effect the decision and/or recommendations of Chief Health Inspector Promotion Board 2001 of Food and Environmental Hygiene Department."

18.Hence, the Plaintiff recognized that the promotion exercise in 2000 was water under the bridge and she should be more concerned with the exercise of 2001. The Plaintiff gave notice to the Defendant of such application. At the hearing before Sakhrani J, Government Counsel appearing for the Defendant informed the Plaintiff that the department could "identify a promotion vacancy in the year 2000 if the Plaintiff could successfully establish her case for promotion". Based on that information, the Plaintiff agreed to withdraw the application for injunction. This was recorded in a letter dated 30 September 2002 from the Government Counsel to the Plaintiff's solicitors.

19.The Plaintiff was of the view that it was essential for her to get a declaration in term of Paragraph 2 in the Originating Summons (as set out in Paragraph 1 above) in order to establish her case for promotion. But as I have observed in the course of arguments, this court would not be the proper forum for deciding whether the Plaintiff had established her case for promotion. For obvious reason, this court cannot sit as upper tier of the promotion board with a view to substitute the board's decision with its conclusions on the merits of the Plaintiff's promotion. Other persons who might be affected (viz. other candidates) are not before this court. Nor does this court have the necessary information or knowledge to come to a fair conclusion on such matter. It would be wholly inappropriate for this court to attempt to take on such a task.

20.Mr Paul Lam must be correct in his submission that the Plaintiff would not get an automatic promotion even if this court were to grant a declaration in term of Paragraph 2 in the Originating Summons or its modified version. At the most, she would only get a chance to be reconsidered for promotion. But even without such declaration, she would be considered for promotion in subsequent promotion exercises (as she did in the 2001 exercise). If I understand correctly, the contention of the Plaintiff was that there was a material difference, namely the effective date of the promotion. It is suggested that by virtue of the reference to a promotion vacancy in the year 2000 in the letter of 30 September 2002, if the Plaintiff succeeded in her challenge to the 2000 promotion board's decision, and if on reconsideration, she were recommended to be promoted on the material as before the board in 2000, her promotion would take effect on the same basis as other candidates in the 2000 promotion exercise.

21.I do not propose to decide whether such letter has such effect although I must confess I have serious doubt about how a promotion could take effect retrospectively when the Plaintiff has not been performing the duties of Chief Health Inspector in the past two years. But I do not find it necessary to come to a conclusion on this point. For reasons given below, I am satisfied it is plain and obvious that the Plaintiff could not obtain such a declaration or its modified version from this court.

22.The Plaintiff's attack on the 2000 promotion exercise is a narrow one. The process adopted by the board as outlined in Paragraph 14 above was not disputed by the Plaintiff. Her allegation is basically that the individual assessment of the board in respect of her ("WHC-6") attached to the report of the board ("HML-16") was not an accurate summary of her appraisal reports. In particular, she objected to the assessment that her appraisals only shown her to be "near outstanding" instead of "outstanding". She also complaint about the observation in that assessment that in the report ended for the period 28 June 1999 (wrongly dated 1997 in the assessment), the Countersigning Officer only considered that she had managed her job and staff properly and effectively.

23.As to the first objection, it is quite clear that there is no merit in it. The board had set out in Paragraph 12 of their report the criteria adopted by them in distinguishing outright "outstanding" reports from other appraisal reports. It was by reference to that criteria that the Plaintiff's appraisal was categorized as "near outstanding" instead of "outright outstanding". The Plaintiff has not suggested that such criteria had not been applied across the board in respect of all candidates. I fail to see how the Plaintiff could level any criticism to the board's decision on this basis. Still less do I see how this could lead to the conclusion that the board has acted unfairly, arbitrarily, capriciously or inequitably.

24.As to the second objection, the comment in the assessment has to be read in context. The whole sentence in the assessment was as follows,

"... though the Reporting Officer commended highly on her ability of staff management, the Countersigning Officer only considered that she had managed her job and staff properly and effectively."

25.If one compared the appraisal of the Reporting Officer with that of the Countersigning Officer, it can be seen that the Countersigning Officer was comparatively more reserved about commending the Plaintiff. I do not regard the remarks in the assessment as unjustified.

26.In any event, it cannot be disputed by the Plaintiff that the actual appraisal reports had been considered by the board and in fact the Countersigning Officer was a member of that board. There is therefore no question of the board misunderstood the appraisal by the Countersigning Officer. It seems to me that the whole process adopted by the board was fair and just and there was no substance in the criticism that the decision was unfair, capricious, arbitrary or inequitable.

27.These would be sufficient to dispose of the Plaintiff's claim regarding declaration (2). However, lest this case be cited as a precedent that the court would readily review the decision of an employer on promotion of staff and grant declaratory relief relating thereto, I want to make a couple of additional points. As mentioned, the Plaintiff consciously elected not to ask for damages in respect of the alleged breach of implied duty by the Defendant regarding the 2000 promotion exercise. The Plaintiff is still working for the Defendant and she is certainly not contending that she would accept the breach as a repudiation of her contract of employment. It is said that the breach was a breach of the implied duty of trust and confidence, the nature of that in the context of promotion I will have something to say later. In face of such a breach in March 2001, or even assuming that the Plaintiff could reasonably claim that she did not discover the breach until she learnt of the assessment attached to the report in July 2002, she elected to continue with her employment. She did not exercise her right to rescind the contract nor to seek damages.

28.The situation is somewhat similar to what happened in Macari v Celtic Football & Athletic Co Ltd [1999] IRLR 787. It was held by the Court of Session in that case that if an employee is faced with a breach of the implied term of trust and confidence by his employer but chooses to continue to work and to draw his salary, the employee must do the work in accordance with the terms of the contract. Hence, he could not justify his subsequent disobedience of a lawful instruction from the employer and the employer was entitled to summarily dismiss him for failing to comply with such instruction. At p. 799, Lord Caplan said,

"If the pursuer felt that his trust and confidence had been so shaken that he could not carry on with his work, he had the option of rescinding the contract. On the other hand, if he continues to work and draws his salary, the counterpart obligation is that he provides the contractual services he is paid for. If an employer commits acts in breach of the Malik implied term, then an employee might choose to ignore this and work on. If he does so, he signals that he has elected not to exercise any right he may have at that point to rescind, but rather is prepared to tolerate the conditions of work and let the contract continue. Of course, circumstances could arise which might revive his right to rescind. The employer may commit further acts in breach of the contract or materially aggravate the situation. If the former breach continues, the employee may give notice that he is no longer prepared to work on unless the illegitimate conduct on the part of the employer ceases. However, if he has elected to continue his employment, while it continues he must perform the duties of his employment."

29.Mr Paul Lam submitted that for a breach of the Malik implied term, an employee could seek either rescission or damages. But the Plaintiff is seeking neither. He submitted that in such circumstances, the court should not entertain the Plaintiff's claim for declaratory relief.

30.It seems to me that in substance, the Plaintiff is seeking relief to facilitate her promotion in 2000. She claimed she was not promoted by reason of the breach of implied duty on the part of the Defendant. But for the offer by the Government Counsel on 30 September 2002 (I have already expressed my reservation as to its effect in practical terms), I do not think she could achieve that by remedies obtainable from this court. She could claim damages and/or rescission. But I do not see how this court could order the Defendant to promote her in place of another successful candidate. In other words, in the absence of the offer of 30 September 2002, it would be a futile exercise to grant any declaratory relief when the Plaintiff did not seek damages or rescission. Normally, a court would not embark on such an exercise.

31.This conveniently brings me to my second observation. The Plaintiff tried to deduce a right to promotion by reference to the Malik implied term. I fail to see how one can argue that such a right exists. At this juncture, it is perhaps opportune for me to recap what was so often called the Malik implied term. Lord Steyn formulated it as follows in Malik v BCCI [1998] AC 20 at p. 45F,

"It is expressed to impose an obligation that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."

32.An examination of the English cases prior to Malik showed that this implied duty initially manifested itself in situations where employees claimed the conducts or behaviour of the employers were such that they could no longer maintain the level of trust and confidence essential to an employment relationship. In most cases, the employee claimed that by reason of the breach, he was constructively dismissed. A good discussion of the English cases can be found in Harvey on Industrial Relations and Employment Law, Volume 1, Section A paras. 442 to 550 and Section D1 paras. 429 to 462. For the purpose of understanding the genesis of such a duty, I find the judgment of Employment Appeal Tribunal in Woods v WM Car Services [1981] ICR 666 at p. 670-2 instructive. It can be seen that this duty initially emerged in a very different context from the selection of staff for promotion. This court is asked to test the new frontier for the application of such a duty.

33.As Lord Steyn said at p. 46D in the judgment of Malik,

"...the implied obligation as formulates is apt to cover the great diversity of situations in which a balance has to be struck between an employer's interest in managing his business as he sees fit and the employee's interest in not being unfairly and improperly exploited."

34.I have not been able to find a single case in which this duty has been considered in the context of a promotion exercise. In a sense, promotion is extraneous to the original contract of employment. One usually does not find provision in an employment contract stipulating that after a certain period an employee would be promoted or be considered for promotion. Although in many large organization or business entities employers conduct promotion exercises from time to time to fill up vacancies, it is equally prevalent that job vacancies are filled up by recruitment from outside. Moreover, there are many small businesses in Hong Kong in which promotion of staff is not conducted in a well-structured or sophisticated manner. It is also common occurrence that in family businesses, those related to the proprietors enjoyed some preference in being appointed or promoted to higher posts. All these seem to be inconsistent with any general right to promotion, whether stemming from the duty of trust and confidence or otherwise. After all, when an employee is engaged, his employer only promises to employ him for a particular post. The employer does not promise him that he would be promoted in future if he out-performed others.

35.Moreover, even for large entities, promotion often involves many factors and it would almost be impossible to be exhaustive or wholly objective. Promotion exercises invariably require assessment of the character, ability, performance and competence of various candidates and their respective suitability to the vacant post. Different employers may give different weightings to each of these factors. Under the general law, I do not believe there is any duty on the part of an employer to give reasons for preferring one candidate to another in a promotion exercise. Bearing these in mind, it is difficult to suggest that an unfavourable result of a promotion exercise could by itself constitute conduct calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

36.As presently advised, although I would not rule out completely the possibility of an employee successfully evoking the Malik duty in the context of promotion, I can see a lot of difficulties in his way. But I would leave the point open for argument in the future.

37.In the present case, I think Mr Joseph Lam did not seriously argue that there was any implied right to promotion although this was referred to in the Eighth Affirmation of the Plaintiff. He did not include this implied term in his draft Statement of Claim submitted to this court. In his Skeleton Submission, in respect of the promotion exercise, he confined his formulation of the cause of action as follows,

"The Defendant has acted unfairly, arbitrarily, capriciously and inequitably in concluding that the Plaintiff was not fit for promotion to the rank of Chief Health Inspector in the promotion exercise in 2000, thereby committing a breach of the implied term [of mutual trust and confidence]."

38.Insofar as the Plaintiff is still contending that she had a right to promotion, I have no hesitation in holding that this is a thoroughly bad point and the earlier that she is disabused as to that the better. I am quite satisfied that the matters she referred to, in particular those set out in her Ninth Affirmation cannot support the existence of such a right. This is plain and obvious.

39.But this is not the end of the matter. The Plaintiff also relied on an implied term that she had equal opportunity in getting promoted in her Eighth Affirmation. Mr Joseph Lam again did not plead such an implied term in his draft Statement of Claim. He rather framed the implied duty negatively in the manner as stated in Paragraph 37 above. Hence, Mr Joseph Lam did not advance a submission that there was a general implied duty of equal opportunity. I therefore should not be too concerned about that. I would only recorded that it has not been argued before me as to how wide this alleged duty of equal opportunity is supposed to encompass and whether it is wider than the protection afforded by the three pieces of legislation in Hong Kong concerning discrimination, namely Sex Discrimination Ordinance (Cap. 480), Disability Discrimination Ordinance (Cap. 487) and Family Status Discrimination Ordinance (Cap. 527). It is indeed an interesting issue whether the implied duty of trust and confidence could encompass a duty of equal treatment and there are cases suggesting that this may be possible in at least some aspects of the employment relationship (see BG v O'Brien [2001] IRLR 496; FC Gardner Ltd v Beresford [1978] IRLR 63). But there has not been any authority on this point in the context of promotion and the matters I referred to in Paragraphs 35 and 36 above will have to be taken into account in charting the limit of the implied duty of trust and confidence in promotion context. I would leave the issue open since there is a specific provision in the CSR which governs the present case.

40.CSR 109(1)(a) provides,

"Selection of officers for promotion ... is decided on the criteria of character and ability, any qualification prescribed for the promotion rank, and experience. Seniority should not be given weigh unless no candidate stands out as the most suitable officer for promotion. All eligible officers, irrespective of their terms of appointment, are considered on equal terms...."

41.Mr Paul Lam therefore quite properly accepted that the Plaintiff could complain if she had not been given equal treatment in the 2000 Promotion Exercise. However, for reasons already canvassed above, I agree with his submission that there is no substance in the Plaintiff's allegations that she had been discriminated against in that exercise.

42.Mr Joseph Lam relied on the following dicta from my decision in Wong Huey Lan v Golgate-Palmolive (HK) Ltd, HCLA 77 of 2001, 11.3.2002, at para. 17 of the judgment,

"If the Respondent did not assess the performance of an employee rationally, properly or in good faith, again the assessment could be challenged and reviewed by the court."

43.That was said in a context where an employee's bonus was calculated by reference to several factors, one of which being the rating for the employee's overall function/individual objective rating. One can readily see the application of the implied duty of trust and confidence in such a context. I have recently applied that in a similar context in Wong Shun v. General Security (HK) Ltd, HCME 4/2002, 11 April 2003. But different considerations may apply in the context of promotion. Unlike the right to bonus in that case, I do not think an employee can say he has a right to promotion. Before a similar approach could be adopted, the court must be satisfied that the implied duty of trust and confidence entails a duty to consider all candidates for promotion on equal footings. This is a controversial issue which awaits decision in the future.

44.Since it is plain and obvious to me that there is no viable basis to support the Plaintiff's claim for declaration (2), I am satisfied that I should strike out the same pursuant to Order 18 rule 19 (3). As the Plaintiff is not pursuing the other relief, I shall dismiss the Originating Summons.

45.On the question of costs, I have heard submissions from counsel in advance. I see no reason why costs should not follow event in respect of declaration (2). As to declarations (1) and (3), I think the Defendant should also be entitled to costs for the following reasons,

(a) Although the Plaintiff's complaints about the verbal warning and the remarks in the appraisal report will be investigated in the forthcoming appeal, it is quite obvious to me that the Plaintiff should have exhausted her remedy by way of appeal before she launched these proceedings.

(b) The only ground that I can perceive reasonable grievance on the part of the Plaintiff is that she had not fully defended herself before the warning was administered. But I think she could hardly blame the Defendant for that when she had been asked by the Quality Assurance Section to give a statement concerning the complaint against the lapse in supervision of the street-washing gang and a statement was provided by her on 11 December 2001. Her complaint of no caution having been administered against her before the statement was taken is clearly devoid of merit.

(c) In the exercise of discretion, I fail to see any justification for this court to grant declaratory relief to the Plaintiff on this ground when there were means to redress her grievance which she chose not exercise. Mr Joseph Lam failed to convince me that there was good ground to justify the exercise of my discretion in another manner.

(d) The appeal procedure is clearly a better avenue to redress such grievance than the current proceedings. She would be able to make further submissions to the officer hearing her appeal and that officer would be better placed to assess the merits of those submission and to decide whether the Plaintiff should be found guilty of any disciplinary offence and what would be the appropriate punishment if she were guilty. The outcome of that appeal would also vindicate the Plaintiff in her personnel record.

(e) The Plaintiff relied on several misconceived arguments in support of her application. Mr Paul Lam had to spend considerable time to deal with those. The submission of Mr Joseph Lam that all disciplinary matters, no matter how minor it is, have to be dealt with by the formal enquiry procedure laid down under the Public Service (Administration) Order is plainly absurd and Mr Joseph Lam acknowledged so although he maintained this is the legal requirement. If he were right on that, a department head could not even administer a verbal warning without any consultation with the Public Service Commission. I have no hesitation in rejecting the submission of Mr Joseph Lam that the distinction between formal and informal disciplinary actions set out in the Procedural Manual for Discipline is ultra vires as being in conflict with the Public Service (Administration) Order. I read these two documents as being complimentary to each other rather than in conflict with each other. Nor do I see any merit in the Plaintiff's argument that she should be counselled before warning was considered as an option. Paragraph 5(i) of the FEHD Administrative Circular No.42/2000 is clearly meant to be a guide rather than a must to be applied mechanically in every case. The circumstances under which the warning and the remarks were made were plainly very different from those in which a manager made an inappropriate remark about an employee in Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84 (see the judgment of Arnold J at p. 85 at the end of para. 4). I think Mr Joseph Lam's reliance on that case is misplaced.

(f) The Plaintiff had been told about the right to appeal and it was only by reason of her mistake and also those advising her that this option was not pursued nor explored. I do not think the wording of the report of verbal warning was misleading in this respect. Further, even allowance were given to her by reason of that, there could not be any mistake when one read Paragraphs 23 and 41 of the First Affidavit of Ho Miu Ling filed on 2 November 2002. Despite that the Plaintiff still pursue with her claims for declaration (1) and (3) and substantial costs were incurred and time wasted by the parties on these claims after 2 November 2002.

(g) The Defendant had indicated in a letter dated 18 July 2002 that it would delete the remarks in the appraisal report which formed the subject matter of declaration (3). Yet the Plaintiff insisted on seeking such a declaration from the court. I am not impressed by the submission of Mr Joseph Lam that significance should be attached to the phrase "at this moment" in the letter. This had not been raised as a concern by the Plaintiff or those advising her until the hearing on 19 May 2003. Had that been the real concern and had the Plaintiff brought that up with the Defendant, I am sure that the problem could have been resolved without resort to litigation.

46.Therefore, I order that the Originating Summons be struck out and that the Plaintiff shall pay the Defendant the costs of these proceedings, such costs to be taxed if not agreed.

47.Regrettably, the way in which these proceedings have been conducted on behalf of the Plaintiff bears the hallmarks of an action launched without careful consideration being given to the legal basis and merits of the Plaintiff's claims and what would be the appropriate remedies. The Plaintiff chose to adopt the originating summons procedure instead of commencing the action by writ. The lack of pleadings left this court in the dark as to the legal basis of the Plaintiff's claims. At the first call-over hearing on 13 November 2002, Mr Cheung was unable to offer much assistance to the court in that regard. The call-over was adjourned to 3 December 2002 to enable the Plaintiff to clarify the position in a further affirmation. The Eighth Affirmation was filed as a result. The formulation of the implied duty in that Eighth Affirmation is different from the formulation in the draft Statement of Claim prepared by Mr Joseph Lam. As mentioned, the declarations sought have also been amended. It may be that if more thoughts were given to the relevant legal principles and available options before the commencement of proceedings, parties may be able to resolve their differences without resorting to litigation and substantial legal costs could be saved. I sincerely hope that in the future litigants and those advising them would seriously and carefully consider whether there are better alternatives to resolve their differences which may be more effective and cheaper before legal proceedings are commenced.

Representation:

Mr Joseph Lam, of Messrs Donald Yap, Cheng & Kong, for the Plaintiff

Mr Paul Lam, instructed by Secretary for Justice, for the Defendant