Iqbal Hussain Khan v. Attorney General

HCA002683A/1971

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 2683 OF 1971

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Coram: Cons J.

Date of Judgment: 15 November 1974

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JUDGMENT

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1. Mr. Khan, the plaintiff in this action, joined the Hong Kong Police Force, as it then was, in July 1952 as a constable. In February 1963 he was promoted to Corporal, which I understand was the equivalent of the rank of Sergeant which he now holds. It was at first a trial promotion for one year. In due course it was confirmed. In 1968 he attended a selection course at the Police Training Contingent in Fanling. He did well in the course and left with a strong recommendation for promotion to the Inspectorate (Exhibit 13). He tells me that in fact he obtained the highest marks among all those who attended.

2. Presumably upon that recommendation Sergeant Khan was promoted to the rank of Inspector with effect from the 1st June 1968 on trial for three years. He was sent immediately to a Probationary Inspectors' Training Course at the Police Training School, Aberdeen. There were ten students in that particular course. Some were direct recruits from overseas, some were from Hong Kong, and some, like Sergeant Khan, promoted from the ranks. The general instructor for the course was an Inspector Tidey, although other officers dealt with specialised subjects. Naturally this was not the only course being held at the Police Training School at that time and the Commandant of the whole was a Senior Superintendent Morrin.

3. The purpose of the course is to train participants for their future duties as officers in the Police Force and at the same time assess their suitability as such. It lasts 26 weeks and is divided into three stages. Examinations are held at the end of each stage, the final one at least being set and marked by Force Training Officers having no direct connection with the Training School or the particular course involved. In addition fortnightly tests are set by the school instructors. At the end of each of the three stages an assessment conference is held comprising all the instructors concerned in that particular stage and following this a joint report is written upon each participant by the course instructor and School Commandant. These reports in due course form part of the personal file of the officer concerned and follow him throughout the rest of his career in the Police Force. It is natural the Commandant and the class instructors make every effort to see that all who enter the course pass out successfully at the end. A high rate of failure would reflect to their own discredit. However from time to time there are some who in their opinion do not or will not make the grade. In this case the Commandant reports the matter to the Commissioner of Police and the person concerned is either discharged from the Force or reverted to his original rank, whichever is appropriate. The decision is technically made by the Commissioner of Police or his deputy, although I expect that on most occasions he respects the advice received from the School Commandant.

4. This resume of the course I have taken from the evidence of Mr. Morrin. I have no doubt that it accurately reflects the position as it was in the beginning of June 1968 when Sergeant Khan attended. His start was not auspicious. He tells me that in an initial test held immediately upon entry he did extremely well and was top of the class. But the records show that by the second fortnightly test he was a very poor bottom, well below both the pass mark and the next lowest member of the class. He just managed to scrape through the examination held at the end of the first stage. However, there had been several incidents which had aroused in Mr. Tidey doubts as to his overall suitability to hold the rank of Inspector (Exhibit 11). These doubts were echoed by Mr. Morrin who made them the subject of a special report to Police Headquarters (Exhibit 7). As a result of this report the Commissioner sent Sergeant Khan a formal warning letter (Exhibit 6). This recited his poor examination results and what was said to be a reluctance on his part to appreciate or accept the higher responsibilities of his new rank. It indicated that unless there were a marked and sustained improvement in both aspects consideration would be given to reverting him to his original rank.

5. There was improvement. A few weeks later Mr. Tidey reported a marked improvement in Sergeant Khan's general attitude and behaviour although he was still having difficulty on the academic side, possibly due to concern over his precarious position (Exhibit 9). The report at the conclusion of the next stage was in similar terms, but it again stressed Mr. Tidey's doubts that Sergeant Khan possessed those qualities which distinguish an officer from the rank and file (Exhibit 10).

6. At the end of the third stage Mr. Morrin recommended to the Commissioner of Police that Sergeant Khan should not be allowed to pass out from the course. This was not because he had failed to obtain pass marks in any of the later tests. He had done so. Indeed in the final fortnightly test he achieved exceptionally good marks and came top of the class. There is a suggestion that this result was not obtained by proper means and a report thereon was made to the local station and to the Commissioner of Police (Exhibit 12). It is not possible to say if this in itself had any effect upon Mr. Morrin's judgment. It was mentioned in his report to the Commissioner of Police (Exhibit 2), but basically his advice was that quite apart from the examination results Sergeant Khan had not overcome these deficiencies of character or temperament which made him unsuitable to hold the rank of an officer. Mr. Morrin's opinion was apparently shared by the remainder of the School staff. The report was sent to the Commissioner on the 20th November. The following day Mr. Rolph, the Deputy Commissioner, issued an order reverting Sergeant Khan to his substantive rank. Mr. Rolph gave no reason for the reversion, nor did he give Sergeant Khan an opportunity to be heard as to why the order should not be made. It is said that these omissions amounted to a denial of natural justice and Sergeant Khan seeks a declaration that the reversion is unlawful and of no effect and other declarations consequent thereon.

7. It is not possible to list categorically all those circumstances in which the Court will insist that the principles of natural justice, and in particular that part which is summed up in the phrase "audi alteram partem", should be applied. One of the well known classes is that of dismissal from office. Mr. Somerville, for the defendant, in an admirably clear and concise submission has suggested that the present case is not within that class, because reversion is something less than dismissal and carries no tangible consequence. With respect to him I cannot agree. I assume the appointment carried with it some increase in salary. There would also be the matter of prestige. Dismissal and reversion are of course different to some extent, but the difference is only that of degree.

8. Then it is said that the principle has no application to an office held at pleasure or where the discretion given is absolutely unrestricted. As a general rule that is so, although the Court will not confine itself to the immediate words alone but will take into account the whole framework and context of the employment: Malloch v. Aberdeen Corporation⁽¹⁾. However I do not think it necessary to explore this aspect. To my mind the present case does not turn upon the nature of the dismissal. It turns upon the nature of the office. And that is essentially a trial office, an office held for the time being to enable the Commissioner to assess the holder and see if he is fit to hold it permanently. It brings temporary advantages but confers no substantive status, as did for example, membership of the University in R. v. Aston University Senate⁽²⁾. I cannot see in this respect the distinction suggested by the Sergeant between "Probationary Inspectors", which is the term applied to persons recruited directly at that level, and "Inspectors on Trial", which is a term reserved for those, like the Sergeant, who come up from the ranks. The latter may, as he suggests, have to undergo a more rigorous selection process but I cannot accept that that process is final. If so there would be no point in making appointments on trial. Sergeant Khan says that he is the first such person ever to have been reverted in rank. If this is so it is a tribute to the selection process. It does not alter the character of the position. I am enjoined by the Privy Council in Durayappah v. Fernando⁽³⁾ to consider first of all the nature of the position held by the person complaining of injustice. I have done so and have come to the conclusion that it is not of a nature to which the principle sought applies.

9. In view of this conclusion it is not necessary for me to rely upon the Full Court decision of In re Yeung Lam⁽⁴⁾. This is a curious case. Strictly speaking it establishes only that in circumstances similar to the present neither mandamus nor certiorari will lie. But its authority may go further, for the reasons given for the decision are reasons generally accepted as excluding the audi alteram partem principle, namely that the power given to the Commissioner of Police was purely administrative and was one unfettered by any statutory requirement. These conclusions were reached upon an argument conceded by counsel for the applicant which, with every respect, appears to overlook the comments of the House of Lords in Ridge v. Baldwin⁽⁵⁾. Then there was a ready acceptance of the suggestion that misuse, or even deliberate abuse, of that power was immaterial. This was a view not taken by the English Court of Appeal in R. v. Lord Leigh⁽⁶⁾ where a police authority misused powers it retained over one of its pensioners, and seems contrary to the general principle that the law looks to substance rather than form. Yet, despite conclusions that on their face would seem fatal to any approach, two of the members of the Full Court indicated that the applicant may have fared better if he had sought a declaration rather than a prerogative writ.

10. It would not be proper to leave this action without commenting upon one matter of fact seriously in dispute, that is the extent to which Sergeant Khan was made aware of his shortcomings and possible reversion before the conclusion of the course at Aberdeen. The records alone indicate several occasions when this was done. The course started on the 3rd June. On the 3rd August, at the end of the first stage, Mr. Morrin interviewed each participant, discussed his progress and read to him his stage report (Exhibit 8 note 3). By that time Mr. Morrin had already received a separate written and unfavourable report upon Sergeant Khan (Exhibit 11). The joint stage report (Exhibit 5) lists some of the matters complained of and concludes with the words "He will need to make a much greater effort and show a positive response to his training if he is to make the grade". The emphasis is my own. The warning letter to which I have already referred was handed to Sergeant Khan on the 19th August. The following joint stage report, read to him on the 27th September (Exhibit 8 note 7), again concludes with the proviso that he might not complete the course successfully. There are several other reports made by Mr. Tidey to Mr. Morrin to Police Headquarters to support these records. Sergeant Khan maintains that all these documents have been subsequently fabricated in order to substantiate the case against him. I do not accept this is so. And I base my decision partly upon the difficulties inherent in such an undertaking and partly upon my assessment of the police officers concerned. I am satisfied that from the end of the first stage onwards Sergeant Khan was well aware of the views of his instructors and that there was a good chance he would be rejected.

11. I do not think it necessary or desirable that I should comment upon the suggestion that the eventual rejection was attributable to the Sergeant's refusal to respond to corrupt overtures made to him by members of the staff of the Training School. This has no relevance to the question of whether or not he should have been given the opportunity to make prior representation to the Commissioner. It may have relevance in the context of bias, in the sense that the Deputy Commissioner did not make an honest exercise of judgment. But that could only be if it were suggested that the Deputy Commissioner was also party to the corruption. That suggestion has not been made. For this reason I did not allow Sergeant Khan to go into the matter at length. I allowed him to put it to his witness as if it were cross-examination as to credit, but by the same token treated the denial as conclusive for the purposes of this hearing.

12. It only remains to consider the point raised in para.9 of the statement of claim, that Mr. Rolph was not within the definition of "commissioner" when he made the reversion order. By section 3 of the Ordinance that word includes "a deputy commissioner". In the Gazette of the 4th October 1968 Mr. Rolph was appointed "Acting Deputy Commissioner of Police (Administration)" and I have not been directed to any variation of that appointment before the 21st November. I can find no reference in the Ordinance to acting appointments as such. Fossibly this aspect has some administrative importance but as far as the law is concerned a person is either a Deputy Commissioner or he is not. I am satisfied that Mr. Rolph was and this point must fail.

13. For these reasons I am not able to grant the declarations sought. The defendant is to have costs.

Representation:

Iqbal Hussain Khan, plaintiff, in person.

H.J. Somerville, C.C., for defendant.

(1) [1971] 1 W.L.R. 1578 at 1597

(2) [1969] 2 Q.B. 538

(3) [1967] 2 A.C. 337

(4) [1968] H.K.L.R. 454

(5) [1964] A.C. 60 at pp.75 and 130

(6) [1897] 1 Q.B. 132