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HCMP000676/1978
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IN THE HIGH COURT OF JUSTICE
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MISCELLANEOUS PROCEEDING
NO. 676 OF 1978 |
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In the matter of an application by THOMAS CORD for leave to apply for an Order of Certiorari
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In the matter of a Notice of Termination of Employment of THOMAS CORD with the Government of Hong Kong dated 25th day of September 1978 by Alasdair Sinclair of the Government of Hong Kong Secretariat
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In the matter of the Police Force Ordinance Cap. 232 of the laws of Hong Kong
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In the matter of Conditions of Service for Overseas Officers
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Coram: Leonard & Cons JJ.
Date of Judgment: 22 June 1979
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JUDGMENT
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Leonard, J.:
1. This Motion as originally framed was
"for an Order of Certiorari to remove into the High Court for the purpose of its being quashed a written notice dated 25th September 1978 delivered by the Government of Hong Kong to the applicant terminating the services of the applicant in the employment of the Government of Hong Kong with effect from the date of receipt of such written notice by the applicant and purporting to terminate such employment in accordance with paragraph 17(i)(a) of the Memorandum on Conditions of Service for Overseas Officers".
In the course of the hearing an application was made for leave to amend the notice of motion by substituting for the expression "The Government of Hong Kong" where it first appears the words "Secretary of the Civil Service". It would appear that some such amendment is necessary if the applicant is to have any possibility of success. By section 10 of The Crown Proceedings Ordinance all
"civil proceedings by or against Crown in the Supreme Court shall be instituted and proceeded with in accordance with rules of court".
In the definition section of that Ordinance the term
"'civil proceedings' does not include proceedings of a nature such as in England are taken on the Crown side of the Queen's Bench Division of Her Majesty's High Court of Justice."
The remedy of certiorari is therefore not available against the Crown or "The Government of Hong Kong". We deferred ruling on this application when it was made but permitted the argument to continue.
2. The facts giving rise to this application are as follows: The applicant, Thomas Cord, joined the Royal Hong Kong Police Force on the 31st of October 1969 as a Probationary Police Inspector. After 3 years' service he was confirmed to the permanent and pensionable establishment and in due course was promoted to the rank of Senior Inspector of Police. In November 1975 he was transferred from the permanent and pensionable establishment to contractual terms of service with effect from the 31st of October 1969 and since November 1975 he has remained in the Royal Hong Kong Police Force as a Senior Inspector. In the course of his career he has received a number of Commanding Officer's Commendations and has been promoted on trial to the rank of Chief Inspector. In 1977 he passed the qualifying examination for promotion to the rank of Superintendent. Although he was told by a superior officer that a recommendation that he would be promoted to the rank of Chief Inspector had gone forward he was not promoted and despite inquiry was not told why he had not been promoted. On the 21st July 1978 he received a letter from the Secretary for the Civil Service in the following terms:
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Dear Sir, |
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I have to inform you that consideration is being given to terminating your service in accordance with paragraph 17(i)(a) of the Memorandum on Conditions of Service for Overseas Officers (G.F. 341) attached to the letter dated 20th January 1976 offering you appointment. |
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The Commissioner of Police has recommended that your service be terminated on the grounds that you have failed to meet the high standard of conduct and propriety demanded of a Police Officer of your rank and service in the Royal Hong Kong Police Force, in that you entered into an undisclosed financial and proprietary interest in the Pop Inn Nightclub, later known as the China Globe Nightclub, and associated with persons of undesirable character, such business interests and associating being incompatible with your duty as a Police Officer. |
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The letter is to inform you of the grounds on which the termination of your service is contemplated and to give you an opportunity to make representations which will be considered, together with the report from the Commissioner of Police, before a decision is taken. Your representations should be forwarded to me through the Commissioner of Police within seven days of your receipt of this letter. |
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If the decision is taken to terminate your service, you will be eligible for the vacation leave and gratuity that you will have earned, terminal baggage allowances at the appropriate rate, and homeward passages to your country of origin. |
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Yours faithfully," |
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His solicitors' replied to this letter on the 25th of July 1978 asking that certain matters be taken into consideration before any decision was finally reached. They pointed out that since he was to be eligible for vacation leave and the gratuity he had earned it was clearly not suggested that his services were terminated for misconduct. This letter goes on to make a number of representations on his behalf and to deny that he had had at any time an interest in the nightclub mentioned and furthermore on the question of association with persons of undesirable character it pointed out that
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As you have not been any more specific than this our Client is at a loss to know to whom you are referring. It is one of the more unfortunate aspects of police work in a busy city, that officers are frequently obliged to associate with persons of undesirable character; indeed that is often in the very nature of their work. However, our Client denies that he has formed any such liaisons in his private life and none which are incompatible with his duty as a Police Officer. |
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If you would care to inform us of the grounds upon which you allege our Client's interest in the Pop Inn Nightclub and supply us with the names of those persons of undesirable character with whom it is suggested our Client associated, we are instructed that he would be happy to answer further to these allegations." |
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His solicitors followed this letter by a letter of the 31st of July 1978 pointing out that he had received regular increments which should only have been awarded if his service had been satisfactory concluding
"We .... hope that these present observations may be incorporated into our Client's representations." (my emphasis)
The applicant heard no more about the matter until the 25th of September 1978 when he received a letter in the following terms:
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Dear Sir, |
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I have to inform you that, after careful consideration of the representations submitted on your behalf by your solicitors on 25th and 31st July 1978, your service is terminated with effect from the date you receive this letter by payment of one month's salary in lieu of notice in accordance with paragraph 17(i)(a) of the Memorandum on Conditions of Service for Overseas Officers (G.F. 341) attached to the letter dated 20th January 1976 offering you appointment. |
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You will be granted the vacation leave and gratuity that you have earned, terminal baggage allowance at the appropriate rate, and a homeward passage to your country of origin. |
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Yours faithfully," |
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It was this letter which the applicant sought to have quashed in these proceedings. His complaint was that he had not been given sufficient information to give him a fair opportunity to correct or contradict the allegations made against him; that the notice of termination of his services was therefore contrary to the Rules of Natural Justice against which he could obtain no relief other than an order of certiorari. The interesting question as to whether or not he could not equally well or perhaps more effectively have obtained the relief he sought by an application for a declaration was not widely canvassed before us since it was contended by the Crown that he was not entitled to relief through either channel. As to the question whether or not there had been an offence against the canons of natural justice counsel for the applicant contended that the letter of the 25th July 1978 was clearly not to be regarded solely as one of representations but as a request for further information to enable the applicant to make complete repeesentations. Crown Counsel relied upon the contention that the remedy of certiorari does not lie to quash the decision of a body exercising purely administrative or domestic functions. The Secretary for the Civil Service was, he suggested, exercising a purely administrative function: that the relationship was that of master and servant and no other and that the position of the applicant depended entirely upon his contract of service that as a servant he had no right to be heard the relationship being both in fact and in law contractual. It is therefore necessary for me in considering these contentions to go first to the terms under which the applicant accepted employment.
3. When the applicant opted to change from the permanent and pensionable establishment to employment as a "contract officer" he received an offer under cover of a letter of the 20th January 1976. The letter offered him further employment as Senior Inspector of Police on agreement:
"on the terms and conditions set out in this letter and in the attached 'Memorandum on Conditions of Service' (G.F. 341)"
The employment offered was to comprise two tours, that is to say, a tour of 2½ years' resident service plus vacation leave followed by a second tour of 2½ years' resident service plus vacation leave. With reference to the date of commencement of each tour the letter stated
"In this connection, it should be noted that it is assumed that after vacation leave following the first tour of resident service, you would return to begin resident service for the second tour, unless at any time before the end of the first tour:
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the Government gives you notice of termination of your service under paragraph 17 of the attached memorandum (G.F. 341); or |
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you give notice of your intention to resign under paragraph 15 of the attached memorandum (G.F. 341)." |
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G.F. 341 the enclosed Memorandum on Conditions of Service contains the following relevant terms:
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2. |
(i) |
The officer is subject to Colonial Regulations, Government Regulations, Departmental Instructions and to any Special Ordinances or Regulations which apply to the office or to the Department tow which he is appointed." |
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Paragraph 16 under the heading "Discipline" provides in its first subparagraph the following:
"For the purposes of discipline, an officer is subject to Colonial Regulations, Establishment (Disciplinary) Regulations, Establishment Regulations and to any special Ordinances or Regulations which apply to the Department or office to which he is appointed."
Sub-paragraph (iv) of this regulation requires disclosure of investments. Paragraph 17 of this document under the heading "Termination of Appointment" provides as follows:
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(i) |
The Hong Kong Government may terminate the service: |
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of an officer serving on agreement at any time by giving him three months' notice in writing or by paying him one month's salary in lieu of notice; |
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of an officer serving on probation at any time by giving him one month's notice in writing or by paying him one month's salary in lieu of notice." |
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The paragraph goes on to deal with such matters as physical and mental incapacity. Sub-paragraph (iii) reads:
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If the Officer is in Hong Kong at the time his services are terminated under either (i) or (ii) above and the reason for termination under sub-paragraph (i) above is not misconduct, passages to his country of origin will be provided for himself and his family (sibject to the same limitations as appear in Section 11 of this Memorandum), provided that he claims and avails himself of such passages within one month from the date of the termination of his services. He shall have no further claim on the Government." |
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The remaining sub-paragraphs are irrelevant to our considerations. Paragraph 18 reads as follows:
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18. |
Dismissal or Punishment for Misconduct etc. |
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An officer is liable to disciplinary punishment (including dismissal) if he neglects or wilfully refuses to perform his duties or in any manner misconducts himself. |
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Upon dismissal, an officer forfeits all rights, privileges and terminal benefits of office. |
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It is to be particularly noted that an officer who is dismissed will thereupon cease to be eligible for passage to his country of origin. |
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Upon dismissal, an officer on agreement shall be liable to repay on demand to the Government that proportion of the cost of passages to Hong Kong (including associated baggage and travelling expenses) provided in that tour for himself and his family which the uncompleted portion of the full tour bears to the full tour, and the outstanding balance of any recoverable advances of salary which he may have received." |
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It is to be noted that the Secretary for the Civil Service did not purport to act under this paragraph and it was apparently bearing sub-paragraph (iii) of it in mind that the letter of the 25th July 1978 from the applicant's solicitors to the Secretary for the Civil Service pointed out that
"clearly it is not suggested that his services are to be terminated for misconduct."
Having regard to the references in this Memorandum to Colonial Regulations, Government Regulations, Departmental Instructions and to any special Ordinances or Regulations which may apply to the office it is necessary for me to consult these various documents to see if they contain any matter which is relevant to the termination of the applicant's employment or which in any way detract from the relationship of master and servant set up by these conditions of service. I turn first to the Police Force Ordinance. As one might expect emphasis is there given particularly to matters of discipline; thus the administration of the Police Force is vested in the Commissioner subject to the orders and control of the Governor; Police Officers are prohibited from belonging to Trade Unions; they are obliged to serve at any place in the Colony or on board any vessel in the service of the Government. The duties of police officers are set out. Provisions are made for the constitution and payment of the force. Section 14 provides
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An inspector may be appointed and promoted by the Commissioner. |
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An inspector who has completed 10 years' services as a police officer but who has not been confirmed in his appointment as inspector may be reverted in rank by the Commissioner in accordance with the provisions of section 25." |
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This would appear not to apply to the applicant who had been confirmed in his appointment. Section 15 of the Ordinance provides:
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Subject to section 13(1)" (which deals with gazetted police officers which the applicant was not) "a police officer may be dismissed under the provisions of this Ordinance or by virtue of the rights reserved by section 38." |
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Distinction is made between dismissal and termination of service for Section 16 provides:
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The service of any police officer may be terminated in accordance with the Colonial Regulations on the ground that, having regard to the conditions of the public service, the usefulness of the police officer thereto and all other circumstances of the case, such termination is desirable in the public interest." |
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It is to be noted that this section is permissive; it does not say nor do I take it to mean that "such service shall not be terminated save in accordance with the Colonial Regulations". By section 25 the Commissioner is given powers of dismissal or discharge from the Police Force of an inspector "at any time prior to the confirmation in his appointment" "by giving him three months' notice in writing or paying to him one month's salary in lieu of notice." This section contains a proviso relating to inspectors who have completed 10 years' service as a police officer and protects them from discharge but not from reversion in rank. It is of interest that the provisions as to discharge under this section of inspectors who have not been confirmed in their appointments are precisely the same as are the powers reserved to Government by paragraph 17 of the Memorandum on Conditions of Service in respect of contract officer. An inspector who has not completed 10 years' service or who has not been confirmed in his appointment may be discharged by the Commissioner paying to him one month's salary in lieu of notice. A "contract" inspector's services may be dispensed with in precisely the same way according to the terms of his contract. By section 38 of the Ordinance nothing contained in it
"shall be construed to limit the right of the Crown or the Government to dismiss or terminate the appointment of any police officer and without compensation."
By section 45 of the Ordinance the Governor-in-Council is enabled to make regulations to be called "Police Regulations" which, inter alia, prescribe or provide for conditions of service. I can find no other provisions in the Police Force Ordinance which are of relevance. The Police (Discipline) Regulations sets up an exhaustive code for the investigation into disciplinary offences committed by both junior police officers and inspectors. By Regulation 27 if it appears to the Commissioner that the nature of the offence is so aggravated that dismissal is merited provision is made for a report to the Governor. I cannot see that these regulations in any way affect the right to terminate a "contract" officer's services. It would therefore appear that there is nothing in the Ordinance or the regulations made under it which suggests that a contract inspector enjoys a status under the Ordinance which can relieve him from any of his liabilities under his contract of employment. Again I can find nothing to that effect in Government Regulations (now termed Civil Service Regulations). Regulation 309 expressly provides that the service of an officer on agreement may be terminated in accordance with the terms of his agreement and thus throws us back to the agreement for the ascertainment of the officer's rights.
4. I turn to the Colonial Regulations. Those relating to discipline of public officers in Hong Kong are to be found in Appendix II Colonial Regulation 55. Put shortly they provide for the dismissal of a public officer for misconduct after the holding of an investigation in accordance with regulations to be made by the Governor and approved by the Secretary of State. They do not deal with the termination of the employment of a contract officer and indeed Note I to the Colonial Regulations themselves provides that
"The main conditions of employment of a contract officer are covered by his contract but the contract usually provides that the officer is subject to Colonial Regulations and local general orders in force for the time being so far as these are applicable."
The contract so provides in this case. However Colonial Regulations do not deal with "termination of service" a term inappropriate to officers on the permanent establishment.
5. In view of all this I am left in no doubt but that on the 21st July 1968 the Government of Hong Kong would have been fully entitled contractually to terminate the applicant's service in accordance with paragraph 17(i)(a) of the Memorandum on Conditions of Service.
6. His position was in no way to be equated with that of Mr. Ridge in Ridge v. Baldwin(1) for Mr. Ridge was appointed with the approval of the Secretary of State to the office of Chief Constable being one of five candidates interviewed by the Watch Committee which purported summarily to dismiss him. As Lord Reid observed at page 65
"A chief constable is not the servant of the Watch Committee or indeed of anyone else."
Prior to making this observation he had said
"The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them."
It was because of this passage that I have been at pains to sift through all the relevant provisions in order to determine if they present any such restriction. I can find none. Later at page 66 he has this to say after an examination of the authorities:
"I fully accept that where an office is simply held at pleasure the person having power of dismissal cannot be bound to disclose his reasons. No doubt he would in many cases tell the officer and hear his explanation before deciding to dismiss him. But if he is not bound to disclose his reason and does not do so, then, if the court cannot require him to do so, it cannot determine whether it would be fair to hear the officer's case before taking action."
In the instant case the Government had a contractual power to terminate Mr. Cord's services without giving reasons or affording to him an opportunity to be heard. It chose instead to tell him what was under consideration and why and to offer him an opportunity of making representations. He did make representations but he also asked for further particulars without which, he complains he could not make adequate representations. The court cannot require that these further particulars be given. Can it nevertheless determine whether the action of Government in exercising its undoubted contractual right is fair? Clearly to my mind Mr. Cord does not come within the third class of case referred to by Lord Reid, i.e. dismissal from an office where there must be something against a man to warrant his dismissal, as did Mr. Ridge. Can he be brought into this class by the supererogative act of the Secretary for the Civil Service in affording him the opportunity of making representations while at the same time denying him the opportunity of making representations which he would regard as adequate? Mr. Corrigan argues that he can. He has referred us in particular to the following from Kanda v. Government of The Federation of Malava(2) at page 337
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In the opinion of their Lordships, however, the proper approach is somewhat different. The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxim: Nemo judex in causa sua: and Audi alteram partem. They have recently been put in the two words, Impartiality and Fairness. But they are separate concepts and are governed by separate considerations. In the present case Inspector Kanda complained of a breach of the second. He said that his constitutional right had been infringed. He had been dismissed without being given a reasonable opportunity of being heard. |
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If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them." |
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In that case the right to be heard was established. In this case it has not been. All that has been established here is that the Secretary for the Civil Service afforded to Mr. Cord the opportunity to be heard and did not, if his view of the correspondence be correct, afford him an adequate opportunity. In Pergamon Press Ltd.(3) inspectors in whom reposed with the duty to make a report 'which may have wide repercussions' and 'may ruin reputations or careers' were held to be under a duty to act fairly. "This is a duty which rests on them, as on many other bodies, even though they are not judicial, nor quasi-judicial but only administrative" (per Lord Denning M.R. at page 399).
7. Reliance was placed on the following passage which appears in the judgment of Sachs L.J. in that case (at page 403):
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To conclude that there must be an appropriate measure of natural justice, or as it is often nowadays styled 'fair play in action,' in the present case is thus easy. That was, indeed, something which was well recognised by the inspectors, who expressly so stated more than once in the course of the proceedings. The real issue, however, is whether that measure should in relation to section 165 investigations generally, or, alternatively, as regards this particular investigation, be reduced by the courts to some set of rules, or whether it should be left to the inspectors, who are men of high professional qualifications, in their discretion to proceed with that fairness of procedure that is appropriate to the particular circumstances of the case as it may develop. |
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In the application of the concept of fair play, there must be real flexibility, so that very different situations may be met without producing procedures unsuitable to the object in hand. That need for flexibility has been emphasised in a number of authoritative passages in the judgments cited to this court. In the forefront was that of Tucker L.J. in Russell v. Duke of Norfolk (1949) 1 All E.R. 109, 118, and the general effect of his views has been once again echoed recently by Lord Guest, Lord Donovan and Lord Wilberforce in Wiseman v. Borneman (1971) A.C. 297, 311, 314, 320. |
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It is only too easy to frame a precise set of rules which may appear impeccable on paper and which may yet unduly hamper, lengthen and, indeed, perhaps even frustrate (see per Lord Reid in Wiseman v. Borneman, at p. 308) the activities of those engaged in investigating or otherwise dealing with matters that fall within their proper sphere. In each case careful regard must be had to the scope of the proceedings, the source of its jurisdiction (statutory in the present case), the way in which it normally falls to be conducted and its objective." |
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Here again, one meets the necessity to have regard to the "source of jurisdiction". The source of jurisdiction the exercise of which is sought to be impugned here is contractual and the relationship terminated that of master and servant - the "master" being the Hong Kong Government - one of the contracting parties and "the servant" being the applicant.
8. Vidvodava University of Ceylon v. Silva(4) is direct authority for the proposition that a servant cannot obtain an order of certiorari if the master terminates the contract
"The law is well settled that if, where there is an ordinary contractual relationship of master and servant, the master terminates the contract the servant cannot obtain an order of certiorari. If the master rightfully ends the contract there can be no complaint: if the master wrongfully ends the contract then the servant can pursue a claim for damages."
Per Lord Morris of Borth-y-Gest at page 79. If this and the observations of Lord Reid which I have quoted earlier be accepted it is an end of the matter. Some doubt has been thrown on its generality by Malloch v. Aberdeen Corporation(5) in the speech of Lord Wilberforce at page 1595
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What is the test of whether the appellant is entitled to a hearing, or to state his case? In the judgments in the courts below and also in argument at the Bar, this was put largely in terms of the question whether the relation between the appellant and the education authority was that of master and servant, or was some other relation. If Mr. Malloch was merely a servant, then, it was said, the law is that he can be dismissed without a hearing; and his remedy lies only in damages. That the relationship between the appellant and the respondents was simply that of servant and master was the opinion of the Lord Ordinary, and the same approach is implicit in the judgments of the Inner House. An alternative argument has been that as he could be dismissed at pleasure he could not demand to state his case. |
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The argument that, once it is shown that the relevant relationship is that of master and servant, this is sufficient to exclude the requirements of natural justice is often found, in one form or another, in reported cases. There are two reasons behind it. The first is that, in master and servant cases, one is normally in the field of the common law of contract inter partes, so that principles of administrative law, including those of natural justice, have no part to play. The second relates to the remedy: it is that in pure master and servant cases, the most that can be obtained is damages, if the dismissal is wrongful: no order for reinstatement can be made, so no room exists for such remedies as administrative law may grant, such as a declaration that the dismissal is void. I think there is validity in both of these arguments, but they, particularly the first, must be carefully used. It involves the risk of a compartmental approach which, though convenient as a solvent, may lead to narrower distinctions than are appropriate to the broader issues of administrative law. A comparative list of situations in which persons have been held entitled or not entitled to a hearing, or to observation of rules of natural justice, according to the master and servant test, looks illogical and even bizarre. A specialist surgeon is denied protection which is given to a hospital doctor; a University professor, as a servant, has been denied the right to be heard, a dock labourer and an undergraduate have been granted it; examples can be multiplied (see Barber v. Manchester Regional Hospital Board (1958) 1 W.L.R. 181, Palmer v. Inverness Hospitals Board of Management, 1963 S.C. 311, Vidvodava University Council v. Silva (1965) 1 W.L.R. 77, Vine v. National Dock Labour Board (1957) A.C. 488, Glynn v. Keele University (1971) 1 W.L.R. 487). One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), these must be confined to what have been called 'pure master and servant cases,' which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, then, in my opinion, whatever the terminology used, and even though in some inter partes aspects the relationship may be called that of master and servant, there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void. |
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This distinction was, I think, clearly perceived in two cases in this House. In Vine v. National Dock Labour Board (1957) A.C. 488, 500, dealing with a registered dock labourer, Viscount Kilmuir, L.C., said that the situation was entirely different from the ordinary master and servant case and referred to his status as a registered worker which he was entitled to have secured. And Lord Keith said, at page 507: |
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This is not a straightforward relationship of master and servant.' |
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The dock labour scheme gave the dock worker a status, supported by statute (1.c. pp. 500, 508-9). In Ridge v. Baldwin (1964) A.C. 40, Lord Reid developed point in an illuminating way. Cases of dismissal, he said, at p.65, appear to fall into three classes. Fist, there are pure master and servant cases - these are governed by the law of contract and there is no right to be heard.
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But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them.' |
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Secondly, there are cases where an office is held at pleasure (I shall return to this category). And, thirdly, there is the case where a man cannot be dismissed unless there is something against him - in this he has a right to be heard. |
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On the other hand, there are some cases where the distinction has been lost sight of, and where the mere allocation of the label - master and servant - has been thought decisive against an administrative law remedy. |
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One such, which I refer to because it may be thought to have some relevance here, is Vidyodava University Council v. Silva (1965) 1 W.L.R. 77, concerned with a university professor, who was dismissed without a hearing. He succeeded before the Supreme Court of Ceylon in obtaining an order for certiorari to quash the decision of the University, but that judgment was set aside by the Privy Council on the ground that the relation was that of master and servant to which the remedy of certiorari had no application. It would not be necessary or appropriate to disagree with the procedural or even the factual basis on which this decision rests: but I must confess that I could not follow it in this country in so far as it involves a denial of any remedy of administrative law to analogous employments. Statutory provisions similar to those on which the employment rested would tend to show, to my mind, in England or in Scotland, that it was one of a sufficiently public character, or one partaking sufficiently of the nature of an office, to attract appropriate remedies of administrative law." |
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The employment here rests not on statutory provisions but on contract. I do not consider it open to me to enlarge on or insert provisions or exceptions in that contract. It is a contract made by the applicant with the Government of Hong Kong. The offer comes in a letter to the applicant written "for Secretary for the Civil Service" just as does the letter terminating the applicant's service. The Secretary for the Civil Service in making the offer and in giving notice of termination acted as agent for the Hong Kong Government and in a purely administrative capacity. To seek the remedy of certiorari against him is to seek it against the Government of Hong Kong against whom it does not lie.
9. Would a remedy lie if a declaration was sought? Mr. Corrigan submits that it would because the Government by its first letter had indicated to the applicant that it was embarking on a quasi-judicial procedure and thereafter acted unfairly. I can understand that the applicant may well have been left with a sense of grievance but I do not accept that the correspondence discloses "unfairness". The applicant made no objection to the terms in which the first letter was couched. He made representations in two letters in reply to it. He asked for further information so that he might make further representations. He was not given that further information. We do not know why not and cannot insist on knowing. Crown Counsel as is his right has not discussed the question of unfairness being content to argue that the remedy of certiorari does not lie. In this connection he also brought our attention to In re YEUNG Lam(6) where the remedy was found not to lie against the exercise of a statutory power vested in the Commissioner of Police to revert a police officer in rank. The power there was dependent on the statutory provision rather than on any contract but both Rigby C.J. and Blair-Kerr J. were of the opinion that a power could not change in character because of the way in which it was exercised and Blair-Kerr J. observed at page 269
"If a power may be exercised administratively, its character does not change because the person wielding the power chooses to act judicially in any particular case. If the power is an administrative power, it is so for all purposes and on all occasions."
The dichotomy between administrative and quasi-judicial functions may no longer be as sharp as it once was but one must still look at the power to determine if the remedy sought lies.
10. To sum up. I consider that the power here was contractual that it was unfettered by statute or regulation and that it was exercised in accordance with the contract. It was exercised by the Hong Kong Government through its agent and certiorari does not lie against the Hong Kong Government or its agent exercising its contractual powers and that the Secretary for the Civil Service donned and then doffed quasi-judicial robes is immaterial. I would dismiss this application with costs.
Cons, J.:
11. I am in agreement with what has just been said. In order to succeed in these proceedings against anyone the applicant must establish one of two things:
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that his relationship under the contract was something more than that of "pure master and servant": see per Lord Wilberforce, Malloch v. Aberdeen Corporation(1) at 1595; or |
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that his contractual terms conferred on him expressly or by necessary implication the right to be heard before dismissal or termination: ibid at 1597. |
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In my view he has done neither. It is true that an "element of public service or employment" is accepted by Lord Wilberforce as possibly taking the relationship beyond that of "pure master and servant". And I would accept that in one sense service as a police officer does contain that element. But so in that sense does the service of every civil servant or person employed by a public body. There must be some limit and in my view it was marked out by Lord Reid in Ridge v. Baldwin(2) at 65 when he referred to "some statutory or other restriction as to the kind of contract which (the public body) can make with its servants, or the grounds on which it can dismiss them". The analysis by my brother Leonard shows that in the present instance there is none.
12. An alternative argument was based on what counsel called "quasi estoppel", by reason that the Government asked for representations but then failed to afford the facility for adequate representations. I can readily understand the present feelings of the applicant. He will forever consider that he was dismissed for unproven misconduct. But the basic principle of any estoppel is that the conduct complained of has led, or misled, someone to act to his own detriment. That was not so here. The applicant was not led to alter his position in any way by the letter of the 21st July. This argument must fail accordingly.
Representation:
Mr. Anthony Corrigan (Hampton, Winter & Glynn) for applicant.
Mr. H.J. Somerville & Mr. P. Graham, C.C. for Crown/respondent.
(1) (1964) A.C. 40.
(2) (1962) A.C. 322.
(3) (1971) Ch. 388.
(4) (1965) 1 W.L.R. 77.
(5) (1971) 1 W.L.R. 1578.
(6) (1968) H.K.L.R. 454.
(1971) 1 W.L.R. 1578.
(1964) A.C. 40.
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