Lam Yuk-ming and Others v. Attorney General
Read the full judgment text of HCMP 825/1979 on BabelCite. This High Court CFI judgment.
1. This action is brought by 26 persons employed in the Department of Medical and Health of the Hong Kong Government and who hold the offices of either Senior Dispenser, Dispenser, Probationary Dispenser or Student Dispenser. Some of them have already given many years of the service to the Crown. Indeed, the two most senior have each completed a quarter of a century in its employment. Others are much more recently joined. The grade of Dispenser within the Government does not call for any profess
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HCMP000825/1979
----------------- Coram: Cons, J. Date of judgment: 12th March, 1980. ----------------- JUDGMENT ----------------- 1. This action is brought by 26 persons employed in the Department of Medical and Health of the Hong Kong Government and who hold the offices of either Senior Dispenser, Dispenser, Probationary Dispenser or Student Dispenser. Some of them have already given many years of the service to the Crown. Indeed, the two most senior have each completed a quarter of a century in its employment. Others are much more recently joined. The grade of Dispenser within the Government does not call for any professional qualifications, although a student must receive three years' training within the Department before he may qualify for appointment as Dispenser. Those plaintiffs who are already Dispensers, and at least one of the students, belong to an association known as "The Hong Kong Medical and Health Department Pharmaceutical Staff Association". The Association has been pressing for improvement of the Dispensers' lot within Government grade and pay structured. There is also some dispute as to what are or ought to be the proper boundaries of a Dispenser's duties. However it does not seem to have made much headway and in September last year it advised its members to take active industrial action, That was on the 10th September. The action was called off on the 16th of the next month, on the understanding that the Association's complaints would be investigated by the Standing Commission on Civil Service Salaries and Conditions of Service. The Commission issued its report soon after. The recommendations did not satisfy the Association, and on the 9th November it sent a letter to the Secretary for the Civil Service containing detailed criticisms of the report and concluded by referring to a resolution reached at an extraordinary general meeting of the Association that
The Association did not wait for the answer. On the 14th November, which was a Wednesday, it wrote again to the Secretary for the Civil Service informing him that its members would work to rule in certain ways as from the 16th, that is the Friday, and warned that if this elicited no response from Government within one week the Association would have to escalate its actions. The certain ways mentioned in the letter included a refusal to work evening clinics and a refusal to undertake manufacturing duties. Accordingly, on the Friday, all the plaintiffs save one refused to perform one or other of those duties and were in due course suspended, most of them on the 26th November. The refusal of the odd plaintiff out was for some reason not made until the 4th December and the was suspended on the 6th of that month. All the plaintiffs received a letter in the terms set out below. The Letters were written in accordance with a decision taken the day before by the Acting Governor
The Regulation 611 referred to in that letter provides as follows:
The suspensions were lifted on the 7th January this year. By these proceedings the plaintiffs now seek various declarations, together with damages for breach of contract or alternatively their pay for the period of suspension. The declarations are in substance that the Secretary for the Civil Service had no right to suspend them without pay. 2. The Attorney General justifies the suspension by reference to the Letters Patent which relate to this Colony. Article XVI says this:
Counsel for the plaintiffs answers this in simple fashion(1B). He says that the undoubted power of the Crown to dismiss at pleasure does not carry with it the right to suspend at pleasure and without pay. He cites the decision of the High Court of Australia in Hunkin v. Siebert(1). He argues that when it comes to matters involving pay the Crown is in no better a position than any other employer. For this he relies upon a decision of the Court of Appeal of Guyana in Nobrega v. The Attorney General of Guyana(2), and the decision of this court in Choi Sum v. The Attorney General(3). And lastly that an ordinary employer has no power to suspend his servant without pay unless that power is conferred upon him by statute or provided for in the contract itself. If authority is needed for that final proposition it is to be found in Hanley v. Pease & Partners, Ltd.(4)or McArdle v. Scotbeef Ltd. (5). Thus the Crown cannot arrogate to itself, or pass to the Governor of this Colony, a power that the law does not grant to the Crown and that therefore the Crown does not possess. 3. It is accepted that at common law the Crown has power to suspend a person from the actual performance of his office. It was said by the Australian judges to be a power of great antiquity and they referred, amongst others, to Slingsby's Case(6). There the King sought to suspend one Mr. Slingsby who held the office of The Master of the Mint. Lord Nottingham thought the King was entitled to do so, upon the authority of many precedents, although the King would continue to be liable for the salary that the office carried. Other examples of a suspension of this kind are referred to in an article by Mr. D.W. Logan(7) . Yet this is not a prerogative which applies to the Crown alone. It was said by Lord Nottingham to be "a liberty which every subject hath, to refuse the service of any man whom he doth not like." a right that has continued to modern times: see Konski v. Peet(8). It would have been a useful right to the Crown in those days long past, when not only was an office often granted for life, but was treated in much the same way as a grant of land which the holder could thus sell or otherwise deal with as he liked. The holder could only be removed for misconduct. 4. On the other hand there are two authorities which suggest that suspension from office also deprives the holder of the profits of that office. One is a dictum from a dissenting judgment of Holt; C. J. in Philips v. Bury(9) (although the decision of the majority was reversed subsequently by the House of Lords). He was concerned with persons who had been suspended from their fellowships of Exeter College, Oxford. It was a question of whether their consent to an expulsion from the College was still necessary. He said at p.189:
5. Another case is Bunter v. Cresswell(10) which had to decide whether a sequestration order continued to operate upon the profits of his benefice once a clergyman had been suspended. I find both those cases too particular in their circumstances to be of any general assistance. 6. At much the same period in time - in 1838 to be exact - the Attorney and Solicitor General of England were consulted on the question whether the Governor of South Australia had the power to suspend any colonial officer appointed by an Order in Council, and whether notwithstanding an Act of Suspension any such officer would continue de jure to hold his appointment. They wrote:
7. However they give no authority for their opinion and for my part I have come to the conclusion that at common law the Crown had no particular right to suspend without pay. Its one exceptional right was and is a right merely to dismiss at pleasure. That is necessary in the public interest: Dunn v. Reg.(11). 8. The Attorney General has not sought to argue further in this respect. What he says is that the position is different in Hong Kong because Hong Kong is a ceded territory. In that case, as he puts his proposition, "a new local law is created". He refers to Commonwealth and Colonial Law by Sir Kenneth Roberts-Wray, at p. 157 under the heading "The Prerogative in Conquered and Conquered Colonies:
The authority is Campbell v. Hall(12). At p. 931 Lord Mansfield says this:
Counsel for the plaintiffs does not challenge this proposition of the Attorney General, at least no tin this court. He is content to reserve his right to argue otherwise elsewhere. In my view this authority concludes the matter. If the Crown has a right to put all the inhabitants to the sword or to exterminate them, then surely it has the right to suspend from office any whom it has spared and put into office in its service. And it has the right to delegate that power to the Governor of this Colony. They only question then is whether by the use of the word "suspend" simpliciter in the Letters Patent the Crown has intended the suspension to be without pay. 9. In Wallwork v. Fielding(13) the Watch Committee suspended a police officer under powers conferred by the Municipal Corporations Act, 1882, The officer sued to recover pay for the period during which he had been suspended. All three Lords Justices agreed that he was not entitled to it. Lord Sterndale put it this way at p.71:
In the Canadian case of Vaillancourt v. The King (referred to in I.L.M. Richardson, "Incidents of the Crown-Servant Relationship" (14) ) Audette, J. asked:
In my view this approach is to be preferred to that of the ancient authorities which I have referred to earlier. By the time the Letters Patent were given the medieval concept of public office had passed away. It was no longer a form of property that, once granted as a favour, the grantee could deal with unilaterally as his own. It had already become a mutual relationship of employer and employee, each of whom had rights and obligations. It follows naturally then that if the obligations are suspended, so are the concomitant rights. For these reasons I am satisfied that the Crown has in Hong Kong the prerogative power to suspend a public officer at pleasure and without pay. 10. And I should say here, for the sake of the record, that counsel for the plaintiffs does not at this level challenge the proposition that the dispensers are public officers in this sense. Nor does he dispute that the Government's right in this respect is unfettered. But on these points also he reserves his right to argue to the contrary elsewhere. 11. It is of course open to the Crown to dispossess itself of a prerogative power. Campbell v. Hall, to which I have already referred is a good example. By a Proclamation, followed by Letters Patent, the Governor of the then newly captured island of Grenada was "authorized to establish a legislature. and, with its advice and consent, make laws". By other Letters Patent, given subsequently, but before the legislature had been brought into being, the King attempted to impose a particular tax upon goods exported from the island. It was held by the Privy Council that he could not do so for he had
12. Can the Crown likewise dispose of its power by simple contract? The Attorney General says not. Yet there is room for argument. In Campbell v. Hall the Crown was bound by its own Proclamation and Letters Patent. Both are recognised forms of law making. But so, in principle, is a contract, even though the "laws" made by it apply only to the immediate parties. If one of those parties is the Crown, should it not also be bound ? Provided of course that the person making the contract on its behalf has the authority to do so. The Governor of Hong Kong may have that authority, by virtue of Article XIV of the Letters Patent. It is often said that the Crown cannot fetter its future executive action. But that has no relevance to suspension: the Crown is protected by the implied right to dismiss. 13. If this indeed be the case, it is then argued that by the introduction of disciplinary provisions into the Civil Service Regulations the Crown in Hong Kong has in fact deprived itself of its inherent power to suspend, in the same way that it had in South Australia by assenting to the Public Service Act, 1916: see Hunkin v. Siebert. Whether this is so or not will depend upon whether or not the regulations have contractual force, a question that remains to be definitively settled. In Choi Sum v. Attorney General I took the view that they did not. But I did not have the benefit of any argument to the contrary, for counsel on both sides urged me to the same end. In the Court of Appeal the Solicitor General put forward the opposite view. Unfortunately the court did not find it necessary to deal with the point. For myself I still find it difficult to view as part of a true contract provisions which can be completely changed at will by one party alone. But apart form that aspect no provisions can carry binding legal effect unless both parties thereto intend that they shall. That intention must be looked for in the documents that have been used. Regulation 2 says this:
In my view that language leaves no room for doubt. I am not prepared to read the words "they have no force in law" as meaning merely that they have no statutory force. The reservation to the Governor of the true interpretation of their meaning, which in true contracts is a matter for the courts, is another indication of non contractual intent. That view is reinforced by the language of some of the Memoranda of Conditions of Service which have been shown to me. Most provide that:
In my view the regulations referred to include the Civil Service Regulations. I have no hesitation in concluding that by the use of such words in the Regulations and Memoranda the Crown has evinced an intention not to be bound by those regulations in the sense that they could be enforced against the Crown in a court of law. 14. I should perhaps add in passing that success in this particular argument would have availed the plaintiffs nothing. They would have been left to face an effective Regulation 611. 15. There are two further matters that I should touch upon. The first is the question of natural justice. It is said that Article XVI confers a disciplinary power - with which I agree, the final words make this clear - and that in the exercise of such a power the Crown is bound to abide by the rules of natural justice, including the audi alteram partem rule. I do not wish to say much on this point for it was only mentioned rather than argued before me. I shall just say this, As I understand the law natural justice requires in circumstances of this nature that the Crown must act fairly, and that as I am at present advised by the affidavits filed in these proceedings, the Crown has acted fairly. The Association's case had been clearly and fully presented in its correspondence with the Secretary for the Civil Service. Ample warning had been given to each individual plaintiff of what might happen if he or she took the action contemplated. There has been no suggestion of what more the Crown might have done. 16. The second point is this. In his letter of suspension the Secretary for the Civil Service purported to rely upon Regulation 611. That was an error since his authority is derived from the Letters Patent. The Attorney submits that the error is not material. He relies upon the case of Rodwell v. Thomas(15) where a civil servant was dismissed after disciplinary proceedings of a kind which he claimed were improper to the particular charge brought against him. That defect in procedure - if indeed it was a defect - was held to be immaterial, for in any event the Crown had its right to dismiss at pleasure. The Attorney could perhaps also have drawn an analogy with the common law rule that a master who summarily dismisses his servant for one reason may later justify that dismissal for some other quite different reason, even thought that other were not known to him in the first instance(16). No suggestion has been made that the reference to the regulation misled the plaintiffs into the action they took or that they were prejudiced thereby. I am satisfied that it has no material effect. 17. In coming to my conclusions in this matter I have not taken into consideration in any way the merits of the action taken either by the plaintiffs or by the Secretary for the Civil Service. I have confined myself solely to what I think are the legal consequences of what occurred. In my view the law does not support the declarations that the plaintiffs seek. Nor does it give them any right to damages or pay for the period they were suspended. Accordingly their action must be dismissed. Representation: Denis Chang and Andrew Li (Francis Chaine & Co.) for the plaintiffs. J.C. Griffiths, Q.C., P. Graham and P. Cheng, Crown Counsel, for the defendant. (1) [1934] 51 C. L. R. 538 (1A) which relates to the tenure of office of Judges (1B) These Letters Patent were issued in 1917. A power of suspension Her Majesty in 1843. (2) [1967] 10 West Indian Reports 187 (3) [1976] H. K. L. R . 609 (4) [1915] 1 K. B. 698 (5) [1974] Scots Law Times 78 (6) 36 E. R. 821 (7) [1945] 61 L. Q. R. 240 at 253 (8) [1915] 1 Ch. 530 at 537 (9) (1788) 100 E. R. 186 (10) (1850) 117 E. R. 317 (11) [1896] 1 Q. B. 116 at 119 (12) Extracts from 1 Cowp. 204 are set out in Commonwealth and Colonial Law by Sir Kenneth Roberts -Wray at p. 929 (13) [1922] 2 K. B. 66 (14) (1995) 33 Canadian Bar Review 424 at 441 (15) [1944] 1 K. B 596 (16) see Batt, Master & Servant, 5th edition 100 |