Re Yuen Chak Teng

HCMP001477/1988

M.P. No. 1477 of 1988

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Hon. Mr. Justice Mayo in Court

Date of Hearing: 14th & 15th November 1988

Date of Delivery of Judgment: 23rd November 1988

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JUDGMENT

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1. The Applicant is seeking a judicial review in respect of disciplinary proceedings which were taken against him. He is a Principal Officer in the Correctional Services Department.

2. It was alleged that he knowingly made an inaccurate statement in an official document. The alleged incident occurred late in the evening of the 16th of April 1987. It was stated that the Applicant made a false entry to the effect that a colleague had supervised the removal of an inmate from the Special Unit at Hei Ling Chau to the Hospital there.

3. The Applicant makes a number of complaints concerning the disciplinary proceedings which were conducted against him. The proceedings were protracted over a period of many months and the Adjudicating Officer did not deliver his findings until the 23rd of December 1987. The Applicant then appealed unsuccessfully.

4. At the commencement of the hearing, Mr. Chong for the Applicant sought leave to amend the papers so as to enable him to include the findings of the Adjudicating Officer in the scope of the review in addition to the dismissal of the appeals. Mr. Marshall for the Respondent did not oppose this application and I granted the leave sought.

5. Also at the beginning of the hearing, Mr. Marshall informed me that the Respondent was prepared to concede that it was right that an Order of Certiorari should issue in respect of Ground 3(i)(a), together with (c) which were as follows:

6. What had happened was that at the conclusion of the hearings the Adjudicating Officer Mr. Shek himself attended at scene of the alleged incident for a view. The main burden of the Applicant's defence had been that his colleague Mr. Au had indeed been present and supervised the removal of the inmate. He had claimed that it was dark on that evening and it was for this reason that the witnesses who had been called by the Respondent had not seen Mr. Au. Unfortunately Mr. Shek had not confined himself to a physical examination of the scene. He also entered into a conversation with Mr. Wai who is referred to in the said grounds concerning the lighting conditions on the night in question.

7. The Applicant did also make other complaints concerning the conduct of the disciplinary hearing and the appeal process. I am, however, entirely satisfied that these other complaints are without foundation. On account of the conclusion I will be reaching it is not necessary for me to go into detail and give reasons for the conclusion I came to concerning these other complaints.

8. The only issue which remained between the parties on the main complaint was the form of the order which was appropriate in the circumstances.

9. Mr. Chong argued that I should quash the said findings as well as the decisions of the Respondent on the 20th of April and the 11th of May 1988 dismissing the Applicant's appeal.

10. The consequence of my making such an order would be to necessitate any further      proceedings being instituted de novo.

11. Mr. Marshall, on the other hand, argued that the defect which had occurred was curable. He placed reliance upon Rule 255H o?ê the Prison Rules which reads:

"225H. For the purpose of any appeal against a finding, the Governor may-

and the Commissioner may, where the appeal lies to him, do any of those things and may also himself take the evidence or part thereof again or take the additional evidence.

12. He submitted that the correct and just approach to adopt would be for me to order that the Commissioner who has authority delegated to him from His Excellency, the Governor, should direct the Adjudicating Officer to take Mr. Wai's evidence again and then afford the Applicant an opportunity of availing himself of such rights as he may be entitled to.

13. According to Mr. Marshall I should not make any order on the original disciplinary hearings. It would then be possible for the Respondent to rectify the situation without delay.

14. The basis of Mr. Marshall's submission was that the disciplinary proceedings were in effect a two-tier process. It was evident from the authorities he referred to that where as a result of an appeal procedure a complainant had had a fair hearing the Court would not interfere.

15. Mr. Marshall placed particular reliance upon a passage appearing in the judgment of Lord Wilberforce in the Privy Council case of Calvin v. Carr 1980 Appeal Cases 574 at page 592:

"Although, as will appear, some of the suggested inconsistencies of decisions disappear, or at least diminish, on analysis, their Lordships recognise and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be "cured" through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so. There are, however, a number of typical situations as to which some general principle can be stated. First there are cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned. Examples of this are De Verteuil v. Knaggs [1918] A.C. 557, 563; Posluns v. Toronto Stock Exchange and Gardiner (1965) 53 D.L.R. (2d) 193; In re Clark and Ontario Securities Commission (1966) 56 D.L.R. (2d) 585; In re Chromex Nicked Mines Ltd. (1970) 16 D.L.R. (3d) 273; and see also Ridge v. Baldwin [1964] A.C. 40, 79, per Lord Reid.

At the other extreme are cases, where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment, etc.) the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage. This was the result reached by Megarry J. in Leary v. National Union of Vehicle Builders [1971] Ch. 34. In his judgment in that case the judge seems to have elevated the conclusion thought proper in that case into a rule of general application, In an eloquent passage he said, at p.49:

"If the rules and the law combine to give the member the right to a fair trial and the right of appeal why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? ... As a general rule ... I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body."

In their Lordships' opinion this is too broadly stated. It affirms a principle which may be found correct in a category of cases: these may very well include trade union cases, where movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first - probably branch - level an essential condition of justice. But to seek to apply it generally overlooks, in their Lordships' respectful opinion, both the existence of the first category, and the possibility that, intermediately, the conclusion to be reached, on the rules and on the contractual context, is that those who have joined in an organisation, or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect."

16. Mr. Marshall submitted that it was clear from this that where a defect had occurred in the original proceedings it could be rectified on a subsequent appeal. This being the case it would be possible for the Respondent to rectify the irregularties which had occurred in the instant case if I made an appropriate order.

17. I regret that there is a serious flaw in this argument. As I see it, there is a world of difference between an appeal body rectifying a defect which has occurred in the past and my ordering that it should do so in the future. I have no doubt that in a situation such as presents itself in this case the correct approach to adopt is the approach of Megarry J. in Leary v. National Union of Vehicle Builders 1971 1 Ch. page 34 at page 48:

"In this connection I referred counsel to the decision of Gale J. and the Ontario Court of Appeal in Posluns v. Toronto Stock Exchange and Gardiner (1964) 46 D.L.R. (2d) 210, 322-333, and (1965) 53 D.L.R. (2d) 193,212-214, a decision, I now find, that was ultimately affirmed by the Supreme Court of Canada: (1968) 67 D.L.R. (2d) 165. Coupled with the other authorities cited to me, this case leaves me in little doubt that if there is a defect of natural justice, the proper course is for the body to which the jurisdiction is confided to rehear the matter de novo, rather than treat any further hearing as an appeal or, a fortiori, let the matter be consigned to some appellate tribunal or other body. No doubt if the trial body has a variable membership, so that the actual members sitting for the rehearing differ from those at the original hearing, this is all to the good. But this is not essential; nor is it essential (one possible reading of Lord Reid's words [1964] A.C. 40, 79, notwithstanding) that there should be any formal annulment of the former decision before starting afresh. The sheet should be made as clean as possible: but I think it should be the same sheet and not a different one. What is required is a venire de novo and not the process of appeal, whereby the person aggrieved may be treated as bearing the burden of displacing an adverse decision which, for lack of natural justice, ought never to have been reached. At the same time, like Gale J., at p. 333, and the Ontario Court of Appeal, at p. 213, I should be slow to regard references in the second hearing it being an "appeal" or "review" as establishing that the second hearing was not a true rehearing. The question is whether it was in subtance a rehearing, and not whether is was correctly described by laymen."

18. There are other reasons why I considered this to be the correct approach. In particular, I am by no means satisfied that Rule 255H really contemplates a two-tier approach to disciplinary proceedings in the prison service. My reading of the rule is that what is contemplated is that the Commissioner is in effect exercising a supervisory function over the process.

19. There are other difficulties if I accept Mr. Marshall's argument. If the matter is referred to the Commissioner under the rule it may have the effect of depriving the Applicant of his rights of appeal. This is not an insignificant matter in the present case as lighting conditions at the time are of crucial importance to the line of defence which the Applicant was advancing.

20. For the reasons I have given I have come to the conclusion that the correct order for me to make is to grant an order quashing the entire disciplinary findings. I so order.

21. Subject to any submission which may be made I order that the Applicant will have his costs.

Representation:

Mr. K.M. Chong instructed by Michael Chan & Co. for Applicant.

Mr. William Marshall & Miss M. Guarna of A.G.'s Chambers for Respondent.