Read the full judgment text of on BabelCite. was delivered on 15 November 1974 before Cons J..
Administrative law – natural justice – audi alteram partem – reversion of police officer from trial inspector rank – whether opportunity to be heard required – Supreme Court of Hong Kong – trial office – declaration sought – action dismissed with costs. Police officer promoted to Inspector on trial for three years attends 26-week Probationary Inspectors' Training Course in three stages with examinations and joint reports; held that the position of Inspector on Trial, like Probationary Inspector, is a temporary trial office conferring no substantive status, and is essentially a trial office to enable the Commissioner to assess the holder's suitability for permanent appointment. Following the Privy Council's guidance in Durayappah v. Fernando, the court considered first the nature of the position and concluded it is not one to which the audi alteram partem principle applies; although reversion and dismissal differ only in degree, the dispositive question is the nature of the office, not the nature of the dismissal, and the court declined to follow the reasoning in In re Yeung Lam to the extent it suggested that prerogative writs were the only remedies. Whether reversion from rank required application of the principles of natural justice and an opportunity to be heard – held no, because the office was a trial office and the principles of natural justice did not apply. Whether Mr. Rolph, appointed Acting Deputy Commissioner of Police (Administration) in the Gazette of 4 October 1968, fell within the definition of 'commissioner' under section 3 of the Ordinance when he made the reversion order on 21 November – held yes, since 'commissioner' includes a deputy commissioner and the Ordinance makes no provision for acting appointments, so a person is either a Deputy Commissioner or not. Sergeant Khan had been kept well aware of his shortcomings from the end of the first stage onwards through interviews, joint stage reports and a formal warning letter, and the court rejected his allegation that records had been fabricated. The court did not find it necessary to consider the suggestion that the rejection was attributable to refusal to respond to corrupt overtures by training school staff, as that could only be relevant to bias if the Deputy Commissioner were also party to such corruption, which was not suggested. Declarations refused; defendant to have costs.
Legal issues: Application of audi alteram partem to reversion from trial inspector rank · Distinction between reversion and dismissal for natural justice purposes · Validity of reversion by Acting Deputy Commissioner
Outcome: Action dismissed; the plaintiff was not granted the declarations sought.