Mohamed Yaqub Khan v. The Attorney General

HCA000329A/1980

Action 1980 No. 329

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mortimer, J.

Dates of Hearing: 6th-20th & 23rd-25th September 1985

Date of Delivery of Judgment: 17th October 1985

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JUDGMENT

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1. The 10th May 1978, was a Wednesday, Superintendent Khan, the plaintiff in this case, then of the Royal Hong Kong Auxiliary Police Force, was on duty at his post as a Divisional Superintendent at Wong Tai Sin. During the course of the day he got a message. It was from Mr. Redpath, the Chief Superintendent of Police and Chief Staff Officer for the Royal Hong Kong Auxiliary Police Force, saying that Mr. Redpath wanted to see him. He wanted to see him at the Auxiliary Police Headquarters in Wanchai as soon as Superintendent Khan came off duty. Superintendent Khan arrived at about 4 p. m. and left shortly afterwards as Mr. Khan. He was handed a letter dismissing him from the force. It was simple and to the point. It was, from Mr. Redpath who signed it for the Commissioner of Police. It read:

"Dear Mr. Khan,

I am directed by the Commissioner of Police to inform you that, by the authority of the Secretary for Security in exercise of His Excellency the Governor's powers under Section 9(1) of the Royal Hong Kong Auxiliary Police Force Ordinance, Chapter 233 of the laws of Hong Kong which have been delegated to him, you are dismissed from the Royal Hong Kong Auxiliary Police Force with effect from Wednesday, 10th May, 1978. "

2. It was the end of one saga and the beginning of another. The second led to these proceedings. The proceedings are in themselves a long story and I do not propose to go through all the matters that are set out in the pleadings and documents before me. Suffice it to say that there was a considerable amount of correspondence because Mr. Khan wanted to know why he had been dismissed from the force, why no reasons had been given and why he had not been allowed a hearing before he was dismissed. He had a great deal to say about what had happened to himself during the time that he was in the force and as to why he thought the dismissal was unfair.

3. One letter is of importance. It was a letter dated the 5th February 1979 from Mr. Davies. It was written after Mr. Khan had petitioned His Excellency in October 1978. The letter said (among other things):-

That is only one example of a very great deal of correspondence to Mr. Khan and from him to various people and, for the purposes of this case, it is not necessary for me to go into any of that correspondence in detail. Mr. Khan gave evidence and I will deal briefly with some of his evidence.

4. Broadly Mr. Khan submits this. First, he was never dismissed lawfully because only His Excellency the Governor or his lawful delegate has the power to dismiss him and neither the Governor nor anyone delegated by him actually dismissed him. He then says if I am wrong about that then the dismissal was unlawful because of the manner in which it was carried out. He says the dismissal must have been a disciplinary matter and there was no disciplinary enquiry and the procedure laid down in ordinances for such an enquiry was not used. He says thirdly that the dismissal was unfair because he was not given any right to be heard and he was not given any indication of the things that were alleged against him so that he might make answer to them. He says that should have all taken place before any decision was made. A lawyer would say that he was not dismissed in accordance with the principles of natural justice.

5. Then he says if he is wrong about that then the exercise of the discretion to dismiss him was unreasonable in that it was not soundly based, matters were taken into account that should not have been taken into account and more particularly it was a dismissal which was in bad faith. In any event, he says, the whole decision was wrong. lawyers refer to that as being in breach of the Wednesbury principle.

6. So it is that he comes to court asking for a declaration which gives effect to his claim that he was not lawfully dismissed and certain other crders which would be consequential.

7. The Attorney General who for the purposes of these proceedings is the defendant, says that he is not entitled to any such declaration. The powers which His Excellency had to dismiss him were unfettered, they were properly delegated and lawfully exercised.

8. Let me turn now, quite briefly, to Mr. Khan's history in the Auxiliary Force before dealing with those questions of law.

9. He joined the force as a special constable as long ago as the 26th August 1952. The special constabulary led him into the Auxiliary Force and, in due course, in January 1963 he was promoted to be an Inspector. In 1967, he received the Colonial Police Long Service Medal. He became an acting Superintendent in May 1968. In April 1970 he was placed on the reserve of gazetted officers. There he remained for some considerable time. He became a Superintendent in January 1972 because the rank of acting Superintendent was done away with. There is an enormous amount of information and evidence in the papers before me of difficulties which arose in the course of Mr. Khan's service. Those, I think, are properly consigned to history up to the time that he was placed on the reserve of gazetted officer's list in April 1970. Thereafter, efforts were made by various people to persuade him, for reasons that perhaps do not matter now, to resign but he did not.

10. He was on the reserve for a considerable time until 1975 and he points out in his evidence that an officer should only remain on the reserve according to the Ordinance or Regulations for twelve months. In 1975 he was posted to Pol/Mil/H.K.I. Of this he has considerable complaint. He lived in Kowloon and he was given tours of duty at various places two months at a time all over the island. As he lived in Kowloon it was very difficult for him to attend his duty. He told me and there is no reason to think it was otherwise, that on field days when he had to be on duty at 7 a. m. it was necessary for him to rise at about 4 a. m. in order to ensure that he was there on time. This tour of duty, two months at a time in various places, he did between sometime in 1975 and April 1977. There was a good deal of correspondence and complaint by him about this. He says that the whole pattern was to harass him and make his service so inconvenient that he would resign. Superintendent Khan was more tenacious than it was thought because he persisted in his duties. The correspondence included a letter to the Governor at p.141 of the Bundle, dated the 24th January 1977. I mention it because many of the complaints that appear in that letter he repeated in the course of his evidence.

11. I mention a number of complaints to indicate that these are matters that in considering this case I have had very much in mind. I mention them as salient matters.

12. There was an incident of which he complains and it can be described as the drug ring incident. Sometime in March 1975 Mr. Khan reported his suspicions to the Narcotics Bureau about a flat situated somewhere near where he lived. He had not reported this to his superiors which was surprising, but he had his own reasons for that. There was a mix up about whether he was trying to hide his address and his telephone number and there were misunderstandings. Allegations were made against him and these were the source of considerable friction between Mr. Khan and others. Before leaving that I would think that it was just the sort of situation where errors had been made and it is not possible for me to say, at this length of time, having only heard part of the account whose errors or how they arose, but allegations were made which may not have been justified against Mr. Khan.

13. Then there was the vexed matter of the irregular pay claims. He was called to the C.I.D. Hong Kong Island and questioned by an officer about a number of alleged irregular pay claims. That interview took place on the 18th October 1976. It was recorded and the record is in the papers p.122-128. Although it was recorded at the time and signed by Mr. Khan, he says it is not a correct record. He says that where it says he was shown a number of documents he was not shown them. He made his explanations from documents which he had with him. He later made further explanations in writing on the 25th October 1976. Consequential upon this, on the 16th November, he reported a number of other officers in respect of irregularities in pay claims. So far as Mr. Khan was concerned there the matter rested. Therefore, when he was posted on the 1st April 1977 he took the view (and who can blame him for it) that the slate had been wiped clean. When he was posted there as a Divisional Superintendent he says he was told that it would be better for him not to pursue all these matters about irregular pay claims (I understood this to refer both to the irregular pay claims that he had reported himself and to those which had been alleged against him. ) and that he was to concentrate on his duties and re-establish himself.

14. Unfortunately, at the time of his posting an extraordinary episode had already begun in relation to Mr. Khan's service as an Auxiliary Force Superintendent. This relates to an enquiry which he was conducting himself outside the confines of the force into the activities of a loan shark. The story speaks for itself and it is set out in some detail in documents in the case. These are documents which emanate from Mr. Khan himself. I am not going to go through them all. If it is ever becomes necessary they set out the matters that I have in mind. It is a very unusual story. Sometime in April 1975 Mr. Khan was approached as an Auxiliary Officer by two people who had got involved with a loan shark. They reported that they were being required to pay large sums by way of interest and they were being threatened. The story was that the activities of the loan shark were such that people were being beaten up and put in danger, and women were being forced to work as prostitutes to repay the money. So this was a case not only of simple loan sharking but of violence, blackmail and prostitution.

15. Mr. Khan says that he reported this matter at Yaumati Police Station but to make the situation even worse, he came to the conclusion that officers at Yaumati were involved. Therefore Mr. Khan says that he decided to conduct his own investigation. He told no one else, although there were other officers (not many) whom he trusted. He did not tell them. He conducted his own enquiry. The manner of his enquiry calls for the expression of surprise because he then borrowed money from the loan shark (he says) in order to discover his modus operandi. Nothing was said by him about those matters at all until he has posted to Wong Tai Sin as Superintendent.

16. Then during the months following July he reported the matter. Some kind of ambush was set up and the so-called loan shark was arrested. He, the loan shark, it appears had quite a different account. The account does not matter. I am not going to repeat it, save to say that the loan shark was a registered money-lender although he probably was not acting properly in all respects.

17. Mr. Khan was asked for explanations of this conduct in cross-examination. The explanations of this extraordinary conduct were not acceptable. The explanations gave rise to more questions than they answered. He said that he was not in breach of Police General Orders in carrying out this private investigation which he was doing out of his public spiritedness because when he was off-duty he was not subject to those general orders. The relevant order is set out in the documents at p.862(a). Standing Order No. 32 makes the Auxiliary Force subject to the Police General Orders where they relate to matters of police conduct and discipline, constabulary duties, practices and procedures. Chapter 6(11) reads:-

"A Police officer shall not attend any interview or interrogation or take part in any investigation, raid or operation other than in the pursuance of his duty. Except in a case arising during an off-duty period in which an officer may be obliged to take action without being able to consult his senior officers, a Police officer shall not under take or continue enquiries into any official matter while off-duty without the prior approval of the officer to whom he is responsible. "

Mr. Khan says well this was not an official matter and that he was off-duty. My views are invited. I think that it clearly was an official matter; he had tried to report it to Yaumati Police Station and he thought the happenings at that Station were very serious. He was pursuing enquiries off-duty which were clearly against the spirit and the letter of that General Order.

18. It is not for this court to make any findings about the effect of that conduct on any decisions that were made. " Decisions about conduct in the Police Force are matters entirely for senior officers and in the end the Governor or his delegate. I must say in passing that I doubt whether any senior officer would be able to countenance this conduct of which Mr. Khan told the court. It would indicate at the very least a very serious error of judgment on his part in relation to his duties.

19. There were other matters in his evidence which he asked me to consider. I do. There were a number of matters on the question whether his dismissal was bona fide. He points out, (I only use it as an example) that there was in his personal file a record of convictions concerning another Mr. Khan. In the course of an interview he was challenged about it. In due course the matter was put right but he says to the court "How did it get into my file unless someone was trying to make things look black for me". There were other incidents in relation to his uniform and in relation to his warrant card which he mentioned.

20. Let me turn now to the issues in the case. Many of these issues relate simply to the law and to what can be inferred from the documents in evidence.

21. The first matter is this, was the plaintiff dismissed by the Governor in accordance with section 9(1) of the Hong Kong Auxiliary Police Force Ordinance Chapter 233. The relevant part of the section reads:-

"Gazetted officers may be ..... dismissed by the Governor. "

The plaintiff alleges that he was not dismissed by the Governor at all. He says that he was in reality dismissed by other police officers. Of course, His Excellency the Governor could not exercise all the powers that are imposed upon him personally. So powers are delegated and the purported delegate in this case is the Secretary for Security. Through his advisers, Mr. Khan says first that there is inadequate evidence in the disclosed documents to show that the Secretary for Security was properly delegated. Let me consider that point.

Section 63(3) of Chapter 1 provides:-

"Where any Ordinance confers powers ..... upon the Governor and such power is exercised .... by any public officer, the Governor shall unless the contrary is proved be deemed to have delegated such public officer under subsection (1) to exercise the power ..... "

This throws the burden of proof upon Mr. Khan.

22. A document has been disclosed and was referred to in evidence. It is p.1099. It shows that on the 15th December 1975 Sir Denys Roberts, then the Acting Governor, approved a delegation of power under section 9(1) of Chapter 233. The existing delegation is set out in the documents at p.1102 and also the delegation which had taken place sometime earlier, can be inferred from that document. I am satisfied, having looked at it, that there was an existing delegation of authority under the hand of the Governor which included the Secretary for Security and nothing to the contrary has been advanced. I am satisfied, therefore, that the delegated authority was proper.

23. The next question is: Was the plaintiff dismissed by the Secretary for Security in pursuance of this delegated power? Mr. Khan says that the Secretary for Security merely "agreed" or "approved" the dismissal and that he says it is not enough because the Regulation requires him to be "dismissed by the Governor". I am asked to compare the wording of Ordinance 24 of 1927 section 7(1). That section reads:-

"The Deputy Superintendents and Assistant Superintendents may be appointed and promoted by the Captain Superintendent with the approval of the Governor and may be dismissed by the Governor. "

I am asked to note that appointments and promotions under this subsection are by the Captain Superintendent with the approval of the Governor but dismissal is by the Governor. So it is said that the simple approval of what has taken place is something quite different from actual dismissal by him.

24. Now, looking at the documents to examine what in fact happened; first, it is clear that the Secretary for Security was not the only officer who possessed this delegated power. Inevitably recommendations have to be put forward by one officer to another. The Secretary for Security could not personally investigate, he has to have matters put to him. It is clear from the documents that the recommendations that were put to him were that he should exercise his powers under section 9(1) of Chapter 233. There was a recommendation from Mr. Blackburn acting for the Commissioner of Police at p.173 of the Bundle in which he says:-

"I recommend that he, Mr. Khan, be dismissed by His Excellency the Governor under section 9(1) of Cap. 233 as being in the public interest. "

That was the recommendation. It is clear from p.906 which is part of a file on which notes were placed that the matter had been considered by the Deputy Secretary who was Mr. Barnes at that time. He put forward the file with a note to the Secretary for Security in which he said:-

"I recommend you exercise your delegated powers to dismiss Khan under section 9(1) of Cap. 233. "

He included other documents.

25. It is clear from the document that the Secretary for Security considered this matter personally. At P.906 he writes on the document under M.24:-

"I agree that Mr. Khan should be dismissed under section 9(1) of Cap. 233. "

This is dated 3rd May. A point was taken about the date. The decision was relayed by Mr. Barnes on behalf of the Secretary for Security to the Commissioner of Police. At P.188 Mr. Barnes, writes for the Secretary for Security to the Commissioner of Police. He said among other things:-

"In response to your recommendation and under the authority delegated to me, I approve the dismissal of Mr. Khan. "

He then deals with the section again. The question is, who actually dismissed? In other words, who actually took the decision? On the evidence before me, it is clear that the Secretary for Security took the decision on the 3rd May 1978 and that decision was then relayed through proper channels. It was put into effect on the 10th May because it was rightly thought that the decision which had been taken would not take effect until Mr. Khan was informed.

26. I am not assisted by the distinction in Ordinance 24 of 1927. That simply sets out who was to take the decision. Where it had to have the approval of the Governor, the Captain Superintendent would take the decision and then put it up for approval and it would either go ahead or not. If a dismissal has to take place by the Governor then the Governor has to take the decision or his delegate.

27. It was said further that it was not proper to leave the implementation of the dismissal by the Secretary for Security to others. In my view, that is not a tenable point. It is clear that the Secretary for Security has to act through others but it was his dismissal and it was relayed properly through Mr. Redpath and others on the way.

28. It does not affect the manner in which the decision was made or who took it when in the course of later correspondence, police officers write saying things which are apparently contrary to what I have decided. ' Mr. Blackburn, for example, writes at p.204 in the course of considerable correspondence which took. place after this dismissal:-

"Careful consideration has been given to the points you raise but it is not proposed to vary the decision which is based upon your general unsuitability to hold office. "

On p.272 there is a further example. In June 1978 Mr. Blackburn writes:-

"In any event, your retirement from the Auxiliary Police Force is based on general unsuitability to hold office rather than on duty performance in any one particular post and this has been a further determining factor in my decision. "

There are references which are the other way, which indicate that the decision was the Secretary for Security under delegated power. In the end these references are not relevant. One has to consider who took the decision. That is quite clear on the evidence I have seen and whatever was said later could not alter the nature of that decision.

29. I may say in passing that in the course of the correspondence which took place after the dismissal, there was some misunderstanding about Mr. Khans rights. The question was whether he could make representations to a police officer under Section 26 of the Ordinance in relation to what had happened when he had been dismissed by the Governor. I say no more about that, it cannot affect the decision in this case.

30. The next matter is raised by those representing Mr. Khan but not by Mr. Khan himself from what he said in evidence. It submitted on his behalf that the Colonial Regulations apply to his case. It submitted that if he is a "public officer" within the meaning of the Regulations then those parts of the Regulations which have disciplinary procedures apply to him. I hope counsel will forgive me for not spending time on this. The point is bad. The Colonial Regulations do not apply to a gazetted officer in the Royal Hong Kong Auxiliary Police Force. A reading of the Regulation themselves shows that they are quite inappropriate, for example, Regulations 54-66 which apply only to officers confirmed on pensionable establishment. Indeed, the Royal Hong Kong Police Standing Order No. 7 (it is on p.831) says in terms that the Civil Service Regulations do not apply in this case. To be contrasted is the position of regular gazetted officers because the Civil Service Regulations do apply to them by section 13 of the Police Force Ordinance Cap. 232. There is no similar provision for Auxiliary gazetted officers and let me lay that point to rest once for all.

31. I turn now to that part of the case upon which most of the submissions were based. The question is this: Was the exercise of this power of dismissal unlawful so that the court will interfere. It is submitted that this power of dismissal ought to be exercised fairly in accordance with the principles of natural justice. It submitted that the power was not so exercised and, therefore, that the court ought to say that it is a requirement and that the power was exercised unlawfully. Pausing for a moment, it is to be noted that this does not involve an enquiry into whether the Secretary for Security's decision to dismiss was a correct one on the evidence or an incorrect one. If the law impinges upon this power at all, it only impinges upon the manner in which the power is exercised and not whether the decision was correct or incorrect. So, was the power exercised unlawfully in the sense ought it to have been exercised fairly and in accordance with the principles of natural justice?

32. Let me dispose of two matters. First, it is not suggested that Mr. Khan was given any warning of the basis of his dismissal. He was not given any opportunity to make any kind of representations before dismissal was made. He was not given any right to be heard if he had one, so if he was entitled to them, he was not afforded those rights. Second, it is not suggested by either side that this was a dismissal under the prerogative of the Crown and I need not consider the prerogative again in the course of this judgment save in passing later. This was the exercise of the power under section 9(1), it was either exercised under that section or not at all.

33. Any consideration of this aspect of the case must begin with a decision as to the nature of the power which was being exercised. For, of course, courts do not interfere save on established principle. If, therefore, the power is absolute and no reasons have to be given and no indication of the reasons to be relied upon is necessary, there may be no room for, and no purpose to be served by, the court seeking to impose requirements about natural justice.

34. Further, dismissal cases have to be considered as a category. The general statements of law which appear in cases dealing with a wide variety of subject matter can be misleading. I will return to that again for in 1964 Lord Reid found it so and in the circumstances, if I from time to time have found it so in the course of this case, perhaps I can be forgiven.

35. Let me turn then to what must be the foundation of any judgment in relation to this matter. It is the section itself. I have already read it. I will not repeat it. The power as stated is unfettered in the sense that there are no limits or conditions set in the section which are a necessary pre-condition of its exercise.

36. In many instances, where powers are granted under legislative provisions those powers are limited by the legislation. They may be exercised in specified circumstances or for specified reasons. In this case it is submitted on behalf of Mr. Khan that the power under section 9(1) is limited. It is submitted that it may be exercised only where something is shown against the person being dismissed.

37. First, I am asked to consider the word "dismissal" itself. I am asked to say that this word carries "per se" implications of misconduct which have to be established before the power is exercised. Of course, in construing one section of the Ordinance I have to consider that section in the light of all the provisions of the Ordinance.

38. In particular, I am asked to consider again No. 24 of 1927. It is submitted that some assistance can be found in construing section 9 of the present Ordinance by a consideration of section 17 of the 1927 Ordinance which reads:-

"Every member of the Reserve, who, when the Reserve is not called out for active service, wilfully neglects or fails to carry out his duty shall be liable to be reprimanded and summarily dismissed from the Reserve. "

It is the word "summarily" that I am asked to consider in particular. It is pointed out that the word "summarily" does not appear in section 9 of the present Ordinance. However, a full reading of section 17 of the 1927 Ordinance shows that it is not of great assistance in a consideration of the nature of the power under the present provision. It is to be noticed that the power set out in section 17 is not an unfettered power. It has to be shown before a man can be reprimanded or dismissed under section 17 that he has wilfully neglected or failed to carry out his duty. It is only when that is shown that the power arises at all.

39. What the meaning of "summarily" is, in those circumstances, I am not going to decide. It is not necessary. It may mean that the person who has failed to carry out his duty and is liable to be reprimanded or dismissed, may be dismissed under that section without a hearing. I know not. It does not arise in the present case. It is to be noted if that section is of any assistance at all in construing the present one, that the power under section 17 is limited.

40. Further, I am asked to consider, as I must, the whole of section 9 and in particular section 9(4) and the legislative history of these provisions. Subsection 4 reads:

"The Governor may require any gazetted officer to retire from the Force if it appears to him that such officer is unable to discharge. efficiently the duties which he is or may be called upon to perform as a member. "

The reasons for that provision being inserted in the Ordinance are of historical interest and I have been invited to consider that history. The history is this. The Police Reserve ceased to exist after the Japanese occupation. The Commissioner of Police disbanded the force soon after the occupation. In fact, he had no power to do so for that power rested solely with the Governor (as one might expect) but of course the Governor was not able to act during the occupation. So when the occupation had come to an end in 1946 matters were regularized and the new Regulations, the 1946 Regulations, were brought in and one of the provisions was (it is section 3):-

"Notwithstanding the provisions of the Principal Ordinance, save as hereinafter provided, any person who became a member of the Reserve prior to the 1st January, 1942, shall be deemed to have ceased to be a member of the Reserve after the 1st January, 1942. "

(I have digressed because that particular section is of no importance in the present case, it is of historical interest. ) Relative to that, when the force was reformed those who had been members before were able to join again but there had been a passage of time and it was envisaged that some members may not be able to carry out their duties and it was thought that some provisions should be made whereby they could leave the force or be required to leave the force without being dismissed. That is the reason why the predecessor of subsection 4 was originally inserted by way of amendments in 1946 and it remains in the present Ordinance.

41. It is submitted that I may look at the Objects and Reasons for this legislation in order to discover what was its purpose and, thereby, I may be assisted in the construction of this passage. I have been invited to consider Elson-Vernon Knitters Ltd. v Sino Indo-American Spinners Ltd. [1972] H. K. L. R.468. The principles set out therein, I respectfully follow.

42. Of course, having read the Objects and Reasons, it cannot assist in construing clear words of the section but it is submitted on behalf of Mr. Khan that I should look at No. 6 of the Objects and Reasons which says:-

"The present law permits only of termination of service by the Governor or Commissioner by dismissal which expression carries an imputation of misconduct. Occasions may often arise where as a result of matters beyond a member's control his efficiency is so impaired as to render him unable to carry out his duties and Clause 7 of the Bill permits of compulsory retirement in such cases. "

That is the fore-runner of section 9. (4). One is faced here, however, with the clearest possible words. The power set out is simple and it is unfettered. I say it is unfettered because one can compare in this section, subsection 1 and subsection 4. In Subsection 1 the power is expressed without fetter. Subsection 4, however, does have a fettered power. The governor may require an officer to retire if it appears to him that such officer is unable to discharge efficiently the duties which he is called upon to perform. In other words, the Governor may only exercise that power when he has decided that the member is unable to efficiently discharge his duties. The power does not arise under any other circumstances.

43. Now faced with that, I find it impossible to say that because the Objects and Reasons set out in 1946 in relation to that amendment (which was the origin of subsection 4) commenting on the word "dismissal", I can find that that is grounds upon which I should read into or imply into the clear words of section 9(1), some limitation of the power. The word "dismissal" from the force does not of itself, in my judgment, mean that dismissal can only take place because misconduct is found. The power is unfettered, reasons do not have to be given and it must follow that there is a power of dismissal for reasons other than any kind of misconduct.

44. For this I find considerable support in the decision in Re Yeung lam 1968 HKLR p.454. It was a decision under section 14(4) of Cap. 232 of the Police Force Ordinance, which reads:

"A non-commissioned officer may be reverted in rank by the Commissioner. "

It was held by the Full Court that that provision was unfettered by any statutory requirements as to its use or its exercise. By inference I find considerable support from that case. The senior puisne judge, Mr. Justice Rigby, when considering the case of Ridge v. Baldwin said at P.461:-

"But as I have earlier pointed out, that case is readily distinguishable in that the power of the watch committee to dismiss was qualified by the necessity for a prior finding by them that, in their opinion, the Chief Constable was "negligent in the discharge of his duty, or otherwise unfit for the same". No such qualification or restriction fetters the Commissioner (and the Deputy Commissioner exercising his powers under section 5 of the Ordinance) under section 14(4) in his absolute right to revert an non-commissioned officer in rank; nor is he required to give any reason why he has done so. "

45. It is then submitted that I must look at sections 13, 14 & 15 of the Ordinance because by implication they impose a fetter not upon the power but upon its exercise. Those provisions are that:-

"13. For the purpose of inquiring into disciplinary offences, the Commandant may convene a Board of Discipline .... "

and then sets out the members.

"14. Any member, other than a gazetted officer, who is found guilty by a Board of Discipline of having committed any of the following disciplinary offences - (then set out) shall be liable to certain penalties. "

It is to be noted that section 14 does not apply to gazetted officers but it would appear that section 13 does, so there can be an enquiry under section 13 into a disciplinary offence by a gazetted officer but the Board does not have power to act. Presumably the Board only has power to report.

46. I have to define the powers under section 9(1) in relation to those provisions. However, as section 9(1) is not, and cannot, be limited by the necessity of a finding or even an allegation of misconduct or any disciplinary matter, I cannot accede to the submission that I have to decide that the powers under section 9(1) are limited by implication by those other provisions.

47. I am satisfied that the powers are unfettered and I am satisfied that it is not a pre-condition of the exercise of the power under section 9(1) that those disciplinary section should be implemented. They are not relevant to section 9(1).

48. There have been considerable submissions by the plaintiff to the effect that if the Ordinance or Statute is silent as to a requirement of acting fairly or acting in accordance with natural justice, then the court will supply the deficiency. I mention this because it is important to understand the limitations of this submission. What the cases say is that where the Ordinance or Statute is silent as to the procedure which has to be adopted in order to act fairly or in accordance with natural justice then the court will not be limited from interfering and the court will supply the procedure which has to be followed. This, of course, may vary considerably from case to case in accordance with the type of power that is being exercised. These are procedural requirements and it is important not to be confused by the words in various cases which deal with procedural matters as opposed to the power itself. For, if a power is fettered without the Statute setting out any procedure the court finds it easy to impose the requirement of procedural fairness.

49. As I have indicated in cases where the exercise of the power of dismissal is being considered, it is advisable to consider them first of all in a category of their own. Other types of case, where the fairness principle has been applied, have from time to time, been misleading.

50. One starts an examination of the dismissal cases by considering the speech of Lord Reid in Ridge v. Baldwin 1964 A. C.40. The classic statement of the law appears on p.65. Lord Reid says:-

"It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a minister ought to do in considering objections to a scheme may be very different from what a watch committee ought to do in considering whether to dismiss a chief constable. So I shall deal first with cases of dismissal. These appear to fall into three classes: dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an officer where there must be something against a man to warrant his dismissal."

I pause to consider into which of those three classes of case Mr. Khan falls. The first class, dismissal of a servant by his master; it is agreed Mr. Khan was not in that category. What about the second two? It is submitted by the Attorney General that he falls into the category of a person holding an office during the pleasure of the Crown, the second category. Mr. Khan submits that he falls into the third category, that is dismissal from an office where there must be something against a man to warrant his dismissal.

51. The answer to this question can be found in one place, and one place only, and that is in the nature of the power in Section 9(1) of the Ordinance. I ask, therefore, in dismissal from this office of Superintendent, must there be something against him in order to warrant his dismissal so that he falls into the third category? I have already answered that question by a consideration of the section itself. In my judgment, he held this office "at pleasure" and prima facie (I say prima facie because there are other considerations to which I must have regard. ) therefore, he can be dismissed "at will" without requirement of natural justice or any other formality.

52. I now return briefly to the same speech of Lord Reid. He deals with master and servant on Page 65 and then continues:-

"The present case does not fall within this class because a chief constable is not the servant of the watch committee or indeed of anyone else. Then there are many cases where a man holds an office at pleasure. Apart from judges and others whose tenure of office is governed by statute, all servants and officers of the Crown hold office at pleasure, and this has been held even to apply to a colonial judge (Terrell v. Secretary of State for the Colonies). It has always been held, I think rightly, that such an officer has no right to' be heard before he is dismissed, and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason. That was stated as long ago as 1670 in Rex v. Stratford-on-Avon Corporation, where the corporation dismissed a town clerk who held office durante bene placito. The leading case on this matter appears to be Reg. v. Darlington School Governors although that decision was doubted by Lord Hatherley L.C. in Dean v. Bennett, and distinguished on narrow grounds in Wilis v. Childe. 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. "

Before leaving the case on p.129 Lord Hodson says this:-

"I entirely accept the reasoning underlying the judgments of the Lords Justices that if a statute gives an unfettered power to dismiss at pleasure without more that is an end of the matter. The topic is, however, not as simple as would seem. "

So, as I have said, prima facie Mr. Khan held his office "at pleasure" and was dismissible" at will" without any requirement that there should be a hearing or any procedural fairness. I say prima facie because, of course, this branch of the law has developed with very great pace since 1964 and I must consider whether the passage is Lord Reid's speech remains good law and applicable to this case. I have been served in this hearing with a banquet of cases, perhaps sometimes I have indicated that they were more suitable for a gourmand than a gourmet, nevertheless, I must pay tribute to the industry of counsel and their helpful and persuasive arguments in a case which has been beautifully presented on both sides.

53. In considering those cases, I have first considered whether there are any cases on dismissal where the court has required the requirements of natural justice to be observed when the power being exercised was unfettered. In other words, when the dismissal fell into Lord Reid's category two rather than category three. An examination of these cases shows that, in only one such case cited to me, has the court found it right to require the rules of natural justice to be observed when they were not.

54. Let me turn to the cases themselves. Much reliance was placed by Mr. Mills-Owen on Durayappah v. Fernando 1967 2 A.C. 377. I pause to note that the power there being exercised was not an unfettered power. The headnote sets out the section being considered:-

"If..... it appears to the Minister that a municipal council is not competent to perform, or persistently makes default in the performance of, any duty or duties imposed upon it ..... "

Quite clearly the power arises only when certain things are shown to the Minister.

55. I turn to p.349 of the advice of the Board. Lord UpJohn was considering the case of Ridge v. Baldwin:- (Supra)

"Outside well-known cases such as dismissal from office, deprivation of property and expulsion from clubs, there is a vast area where the principle can only be applied upon most general considerations. For example, as Lord Reid when examining Rex v. Electricity Commissioners pointed out, Bankes L. J. inferred the judicial element from the nature of the power and Atkin L. J. did the same. Pausing there, however, it should not be assumed that their Lordships necessarily agree with Lord Reid's analysis of that case or with his criticism of Nakuda Ali v. Jayaratne. Outside the well-known classes of cases, no general rule can be laid down as to the application of the general principle in addition to the language of the provision. In their Lordships' opinion there are three matters which must always be borne in mind when considering whether the principle should be applied or not. These three matters are: first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise' the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other. It is only upon a consideration of all these matters that the question of the application of the principle can properly be determined. "

Then he turned to consider the particular facts. In Durayappah the Board were not, as I have said, considering an unfettered power and if those principles set out there are to be applied to this case, they are all relevant but there is one which is of greatest possible importance. It is "in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene." The answer is, when that is applied to this case, that there is no fetter and he is entitled to intervene without reasons and in any bona fide circumstances.

56. The next matter that I must consider is this: in setting out their test in that particular case was the Privy Council, in anyway, doubting the classic statement of the law in Ridge v. Baldwin? There is a case (The Queen v Wilson exP-Donaldson) in which it was thought that that was the position. As I shall demonstrate by reference to a later case (Chief Constable of Worth Wales v Evans) that was not the situation at all. The classic statement of the law in relation to dismissal cases in Ridge v. Baldwin (subject to some extension in particular instances) is still good law.

57. I was asked to consider Malloch v. Aberdeen Corporation [1971] 1 WLR at p.1578. This was a dismissal case and the question which arose was under what power was the dismissal effected? Was the power an absolute and unfettered power or was it a fettered power? The decision of the House of Lords on that matter is clear. Again it was Lord Reid. At P.1581 at h he said:-

"In the Public Schools (Scotland) Teachers Act 1882 certificated teachers are said by section 3 to "hold office" under school boards and their dismissal without "due deliberation" is forbidden. In particular it is enacted that no dismissal shall be valid unless three weeks' notice of a meeting to consider a motion for dismissal is given both to every member of the board and to the teacher. I can see no possible reason for requiring notice to the teacher other than to give him an opportunity to prepare his defence, and it appears to me to be implicit in this requirement that the teacher shall be entitled to submit his defence to the board. Moreover, a school board refusing to hear the teacher whom it proposed to dismiss could hardly be said to proceed with due deliberation. "

So it is clear from the statutory provisions there being considered that the power was not unfettered. He continued:-

"Then it was said that it is inconsistent that a body should be entitled to act at pleasure but nevertheless bound to hear the teacher before acting. I can see no inconsistency. Acting at pleasure means there is an obligation to formulate reasons. Formal reasons might lead to legal difficulties. But it seems to me perfectly sensible for Parliament to say to a public body: you need not give formal reasons but you must hear the man before you dismiss him. In my view, that is what Parliament did say in the 1882 Act. "

I should not leave this without referring to the same page in another passage where he says:-

"The right of a man to be heard in his own defence is the most elementary protection of all and, where a statutory form of protection would be less effective if it did not carry with it a right to be heard, I would not find it difficult to imply this right. Here it appears to me that there is a plain implication to that effect in the 1882 Act. The terms of that Act have been altered by later legislation, but I can find nothing in any later Act which can reasonably be interpreted as taking away that elementary right. "

Again in that case it can be seen that the provisions of the Act being considered are paramount to a consideration of what is required in the exercise of the power. The consideration is first whether the power is unfettered and secondly, under what conditions it may be exercised.

58. The Australian case The Queen v. Wilson; Ex parte Donaldson (1978) 19 A. L. R. at p.235 was cited. Again this was the dismissal of a police officer. I turn to p.241 dealing with certain Regulations, the Chief Justice Bowen says:-

"I do not find it necessary to decide what is the present position after these amendments of the right of the Crown to dismiss members of the Police Force at pleasure. Assuming, without deciding, that the Crown continues to possess that right, the question arises whether section 45(2)(a) of the Police (Disciplinary Provisions) Ordinance 1972 effects a delegation of that right to: the Commissioner. If there has been such a delegation, the Commissioner is entitled to exercise the power on the recording of a conviction of the necessary kind against the member to be dismissed. The question is entirely a matter of the proper construction of the relevant Ordinances. "

Further at line 43 he says:-

"That sub-section confers a disciplinary power on the Commissioner in respect of a conviction of a member for an offence and enumerates the penalties which may be imposed, the most serious of which is dismissal. As the power to dismiss under section 45(2)(a) is but part of a wider power conferred on the Commissioner by the sub-section, it becomes apparent that section 45(2)(a) is not an independent provision by which the power of the Crown to dismiss members of the Police Force at pleasure is delegated to him. Rather, section 45(2)(a) confers de novo on the Commissioner a power to dismiss in the specified circumstances. "

And so here again there was a limited power in which, of course, a right to be heard had to be required because it could only be exercised in those specified circumstances.

59. Before I leave the case of Wilson I wish to mention in passing a passage at p.243 in which the learned Chief Justice says this:-

"The decision in Ridge v. Baldwin provided the impetus necessary to remove the question of whether natural justice was required to be afforded, front process whereby the action affecting rights was classified as judicial quasi-judicial or administrative. "

Those classifications have passed into history in our law. But he goes on:-

"In Durayappah v. Fernando [1967] 2 AC 337; [1967] 2 All ER 152, the Privy Council abandoned this process of classification and in a well-known passage referred to three important matters which the courts should bear in mind when deciding whether or not natural justice is required to be afforded. It was said at P.349: "These three matters are: ...."

Then he sets out the well-known passage in Durayappah. If it were thought that this passage in Durayappah has thrown doubt on the lawn in Ridge v. Baldwin, that is not correct for reasons to which I will refer.

60. I turn now to the case the Chief Constable of The North Wales Police v. Evans 1982 1 WLR at p.1155. This is the case in which a Chief Constable dismissed a probationer constable under Regulation 16(1) of the Police Regulations 1971. The Chief Constable thought that he had absolute power to act and said so when he acted, I read from the headnote:-

"The decision of the chief officer of police to discharge a probationer constable was not absolute but qualified, exercisable only if he considered that the constable was not fitted to perform the duties of the officer or was not likely to become an efficient or well conducted constable and in accordance with the rules of natural justice; that it had been the duty of the chief constable to deal fairly with the applicant in relation to the adverse factors on which he had been proposing to act; and that he had failed in the performance of that duty because those supposedly adverse factors had never been put to the applicant."

The point of the case was that the chief constable thought he had absolute power but he did not have such power and the court decided that he had to give the constable the advantage of natural justice in making his decision.

61. There are passages in the speech of Lord Brightman where he refers to Ridge v. Baldwin. At 1172 H he said, "I turn first to the decision of this House in Ridge v. Baldwin where I find useful guidance on the proper approach to this type of case. " Then he deals at some length with the classic statement of the law. Clear it is that Ridge v. Baldwin was still regarded in 1982 by the House of Lords as good law in dismissal cases.

62. In completing this review I do not leave, out of consideration DeVenteiui v. Kroggs 1918 A. C. 557 where the power was limited. "On sufficient ground shown" were the words. I can leave that case.

63. Let me turn now to the case which I mentioned earlier as the one dismissal case which was cited to me where it was held that although there was an unfettered power that power could only be exercised in accordance with the provisions of fairness and natural justice. The case is In re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police 1978 88. D. L. R.671. A decision of the Supreme Court of Canada. This was a case where a probationary police constable was dismissed and the power to dismiss was not fettered. The unfettered power is to be contrasted with the limited power that there was to dismiss a police officer. I refer to the headnote:

"The Chief Justice and Justices Ritchie, Spence, Dickson and Estey: Judicial and quasi-judicial tribunals are required to observe the rules of natural justice which afford extensive procedural protection to persons affected by decisions of such tribunals, including the right of notice, of a hearing and of counsel.

Tribunals acceptably exercising executive or administrative powers are not bound by the rules of natural justice as such. However, they are nevertheless under a general duty of fairness which at least requires them to inform a person holding a public office of the substance of the reasons for his dismissal and give him an opportunity to respond, either orally or in writing.

The effect of s.27(b) of the Regulations is not to preserve the common law right of a board of police commissioners to dispense with the services of any probationary constable at their pleasure, i.e. without a hearing. Moreover, a police officer holds a public office and, while he cannot claim the procedural protection afforded to an officer with more than 18-months service, he should be treated fairly, not arbitrarily. Thus, he should have been informed of the reasons for his dismissal and given an opportunity to respond. "

That was the decision of the majority.

64. There was a dissenting judgment by Mr. Justices Martland, Pigeon, Beetz and Pratte: Also in the headnote:-

"Under s. 27(b) of the Regulations a police officer's employment is, during the first 18 months, at the pleasure of the board. In those circumstances the decision of the board to dispense with the officer's employment is purely administrative and, in the absence of any statutory requirement, it is not obliged to give reasons for the dismissal or to give him an opportunity of being heard."

That case is a useful illustration of two views that were being expressed. It was a majority decision and the Supreme Court were split 5-4.

65. On a proper view of the principles in this jurisdiction it is my judgment that the minority in that case would be followed. The reasons for this I have already set out and they concern the power that is being exercised. So I decline to follow that case. Indeed, I am bound in this jurisdiction not to follow that case.

66. Before I finish dealing with the submission that Mr. Khan ought to have been afforded natural justice and fairness in the exercise of this power, let me deal in passing with a number of other cases which were not dismissal cases, but which I was invited to consider.

67. I was invited to consider the well-known case of Cooper v. Wandsworth Board of Works P.182 because it is one of the classic cases in this branch of the law. I am invited to consider submissions in relation to the Attorney-General v. Thomas D'Arcy Ryan 1980 A,C. 718. I have been invited to consider The Queen v. Gaming Board for great Britain 1970 2 Q.B.417 and Barnsley Borough Council, Ex parte Hook 1976 W. L. R.1056.

68. Now each of those cases, it is to be noted, deals with the exercise of power which is fettered power. Power that can only be exercised under certain specified conditions. They are therefore not of a direct assistance to me in deciding how the power in this case should be exercised. In Barnsley Borough Council Ex parte Hook, although that did not involve a statutory power, it was decided that once a market holder had been granted the right to have a market stall that right could not be taken away from him without good cause. Quite apart from other criticisms of the way in which the decision was taken it was held that the Barnsley Borough Council did not have an unfettered power to remove the right of this market holder from having his stall.

69. I cannot leave this aspect of the case without considering further line of authority in this somewhat complicated aspect of administrative law. This line of authority is usefully explained in a case from this jurisdiction. It is the Attorney-General of Hong Kong and Ng Yuen Shiu 1983 2 A. C.629. Before I turn to the case the proposition for which there is this line of authority is this: That even where there is unfettered power to act a person affected by the exercise of that power may have a reasonable or legitimate expectation that certain procedural matters will be complied with before that power is exercised. If so, the Court may require those procedural matters to be complied with. This line of authority that goes back to 1969, in a judgment of Lord Denning in Schmidt v. The Secretary of States for Home Affairs 1969 2 Ch. Div. 149. That is the origin of this line of authority but a consideration is required of what is a reasonable or legitimate expectation that something will be done before the power is exercised; and it also requires a consideration of whether there is any evidence in this case of such a legitimate expectation.

70. Turning to the case of Ng Yuen Shiu and the advice of the Board at page 636:

"The applicant who was born in China entered Hong Kong illegally from Macau in 1967. In 1976 he was removed to Macau but re-entered illegally shortly afterwards and remained. By 1980 he was the part-owner of a small factory in Hong Kong. In October 1980 the government announced changes in its immigration policy. It abandoned its 'reached base' policy whereby illegal entrants had been allowed to remain once they had reached the urban areas without being arrested and it stated that those who had entered illegally would be repatriated. It gave power to the Director of Immigration to make removal orders against them. The announcement created fears among the illegal entrants living in Hong Kong who had entered from Macau and who were of Chinese origin that they would be repatriated to China. On their petitioning the Governor a senior immigration officer made an announcement of the government policy which it was intended should be applied to them. That included the statement that each illegal entrant from Macau would be interviewed and his case 'treated on its merits'. Having been questioned by an immigration officer, the applicant was detained and the Director of Immigration then made a removal order against him without giving him an opportunity of making any representations as to why he should not be removed. The applicant applied to the High Court for orders of certiorari to quash the removal order and prohibition restraining the director from executing it. The Full Bench of the High Court refused the application. On the applicant's appeal the Court of Appeal granted an order of prohibition preventing the director from executing the removal order until he had given the applicant an opportunity to be heard.

On the Attorney-General's appeal to the Judicial Committee:-

Held, dismissing the appeal, that where a public authority charged with the duty of making a decision promised to follow a certain procedure before reaching that decision, good administration required that it should act by implementing the promise provided the implementation did not conflict with the authority's statutory duty.

The narrower proposition for which the applicant contended was that a person is entitled to a fair hearing before a decision adversely affecting his interests is made by a public official or body, if he has 'a legitimate expectation' of being accorded such a hearing. The phrase 'legitimate expectation' in this context originated in the judgment of Lord Denning in Schmidt. It is in many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v. MacKellar (No.2) (1977) 137 C.L.R.396, 404, Barwick C.J. construed the word 'legitimate' in that phrase as expressing the concept of 'entitlement or recognition by law'. So understood, the expression (as Barwick C.J. rightly observed) 'adds little, if anything, to the concept of a right'. With great respect to Barwick C.J., their Lordships consider that the word 'legitimate' in that expression falls to be read as meaning 'reasonable'. Accordingly 'legitimate expectations' in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: see Reg. v. Criminal Injuries Compensation Board, Ex parte lain [1967] 2 Q.B.864. So it was held in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No.2) [1979] 1 W. L. R.1041 that a prisoner is entitled to challenge, by judicial review, a decision by a prison board of visitors, awarding him loss of remission of sentence, although he has no legal right to remission, but only a reasonable expectation of receiving it. ''

71. They turn next to the House of Lords' decision in O'Reilly v. Mackman [1983] 2 A. C.232 in which the St. Germain case was approved. And then the advice of the Board continues:-

"The expectations may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry. "

That principle was dealt with at great length in Council of Civil Service Unions and Others v. Minister for the Civil Service 1984 3 W.L.R. 1174 where Lord Diplock on p.1194 set out what he considered to be the general law of judicial control. This was not a dismissal case. He says at D:-

He then refers to the recent decision in re Findlay [1984] 3 W.L.R.1159 which was an example of the latter kind of expectation.

72. Those cases set out the principles upon which this line of authority will be applied. It should be noted that this is not a loose legal concept to be applied or not to be applied at the whim of the court even if the court were to think, for example, that it would be fairer if the principles of natural justice were applied. Also, there is nothing in the C.C.S.U. case which throws any doubt upon the principles set out by Lord Reid as long ago as 1964 in relation to dismissal cases. It does add this aspect that if therefore there were a case in which a man could say that he had a legitimate expectation that he would be given a proper hearing or he would be given a procedure which accorded with fairness of natural justice before being dismissed then the court would interfere. I have said this is not a loose legal concept. If there is a legitimate expectation, then it will be possible to point to evidence of this and the evidence would be either of undertakings by the person exercising power or perhaps of a practice which led to the legitimate expectation that the practice would be continued in all cases; for an example see the C.C.S.U. case; for an example the other way see the case of Findlay to which Lord Diplock referred in the passage above.

73. So on the evidence in this case there is here no legitimate expectation to which Mr. Khan can point which leads or which can lead the court to say that there ought to have been here an exercise of power in accordance with the rules of natural justice.

74. I must turn now to another matter which has been raised. It relates to the exercise of prerogative power. Of course, it was not suggested by anyone that there was an exercise of prerogative in this case. The relevance of the exercise of prerogative power arises in this way only. Their Lordships in the C.C.S.U. case made it clear that in proper circumstances the courts will control the exercise of the prerogative power. (Note again it is the exercise of the power and not the power itself. ) It is therefore submitted by Mr. Mills-Oven that if the courts will control the exercise of prerogative power which is or may be absolute, then surely the court would interfere with the exercise of power under Section 9(1) of the Ordinance. This, as a submission, is a non-sequitur for one has to consider the exercise of each power individually. Not all prerogative power is absolute power because the prerogative is exercised and has been exercised over the centuries in certain particular ways. All that the C.C.S.U. case decides, it seems to me, is that whereas it was previously thought that the court would never interfere so as to control in any way the exercise of prerogative power, that is not the law and in a proper case the exercise of prerogative power will be controlled. An example is that case itself. It does not mean to say that where absolute power has been exercised under the prerogative without any legitimate expectation of any procedural requirements or and without any let, hindrance or fetter that the courts will seek to control it. I do not need to give any examples in relation to such prerogative powers that I have in mind.

75. My judgment is therefore having considered the principles in all these cases that Mr. Khan held his office in the Royal Hong Kong Auxiliary Police Force at pleasure. It was determinable at will. The power to do so was not limited in any way. No reasons had to be given and no reasons could be required. The court will not in these circumstances interfere with the exercise of that power so as to require it to be exercised in pursuance of the rules of natural justice. Indeed if one considers the matter carefully what purpose could there be of requiring the rules of natural justice to be imposed when there is no fetter on the power, so that reasons do not have to be given and the power can be exercised (provided it is exercised bona fides) on any grounds and unspecified grounds?

76. It is now necessary for rte to turn to a further submission made on behalf of Mr. Khan. He challenges the exercise of this power on the basis that it was the exercise of a discretionary power by the Secretary for Security and he submits that it was exercised unlawfully and ultra vires under the well known Wednesbury principle. It is submitted and it is conceded by the Attorney-General that it is open to the Court to consider the Wednesbury principles even where there is an unfettered power. Thus it becomes relevant to consider the passage of Lord Reid to which I have already referred in Ridge v. Baldwin. By implication when dealing with an unlimited. power he says on page 66:-

"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. "

And I suppose that the circumstance which Lord Reid had in mind was that of the person exercising the power deciding to disclose his reasons. I mention this because there has been discovery in this case. All the documents have been before the court showing what was being considered and what was not being considered in the exercise of this power.

77. The Wednesbury principle is conveniently and. succinctly restated by Lord Diplock in the C.C.S.U. case at page 1196 D. Dealing with 'irrationality' as a ground upon which the court will interfere. He says:

"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. "

This principle which is so succinctly set out there has its origins in Short v. Poole Corporation 1926 Ch. 64 and of course Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223 at 230.

78. The plaintiff's allegations in this regard are conveniently set out in the statement of claim. He says that the reasons which were given in the letter of the 5th of February for his dismissal were without foundation and having been investigated were found to be unsubstantiated; he says there were trivial; there were not bona fide; there were not such as to warrant his dismissal anyway; and in any event there were such as to bring the public service into disrepute. Those reasons are amplified in the next paragraph, (paragraph 12) in which he sets out the matters upon which he relies as showing that the dismissal was not bona fide. I have had an opportunity of considering those matters in the course of the trial and in his evidence. It is upon his evidence that I now turn to make my decision.

79. Mr. Khan gave his evidence with great courtesy and with considerable restraint. I say that because one thing which is clear in this case is the depth of feeling which Mr. Khan has about the treatment which he apprehends he received at the hands of the Royal Hong Kong Auxiliary Police Force. He told me of the matters that are set out in paragraph 12 which he regarded as harassing, as humiliating, as obstructing him in his duties and so on and so forth.

80. The matters which were in front of the Secretary for Security are set out in the recommendation to which I have briefly referred at pages 171, 172 and 173. Most of those were matters that were dealt with by Mr. Khan in evidence. It is not possible for me to make any findings about his evidence; as there was no evidence on the other side prima facie I accept it. It is clear from his evidence that there were enormous problems, of whose making it is hot possible to say exactly. He certainly considered himself to be put into serious difficulties and it may well be that he was so put in serious difficulties from time to time.

81. I must consider the words of Lord Diplock and the question as to whether this power was exercised bona fide. The history is important because following all these matters of complaint both against Mr. Khan and really by Mr. Khan on the 1st April he was posted to Wong Tai Sin. He was reinstated and I accept that he was told as it were to forget the past and get down to his job and make something of it. Now if the intention was to see him out of the force somehow or other for reasons which were not bona fide, I do not believe for a moment that he would have been posted to Wong Tai Sin on the 1st April 1977 and he would not have been told what he was told. Unfortunately, there was in the background the loan shark matter. That matter was unknown to anyone in authority on the 1st April 1977. I so find. Although Mr. Khan reported it to Yaumatei Police Station he came to the conclusion that officers there were involved and so those who were in authority certainly did not know of this circumstance when he was posted.

82. Now I have said what I want to say about the loan shark incident. Once that came to light and considering what those in authority were then to do it seems to me that their decisions cannot be attacked under the Wednesbury principle. The lack of judgment shown by Mr. Khan on his own account of what had taken place in relation to the loan shark must at least have given substantial reason for the exercise of the power under Section 9(1). Of course I do not decide whether it was right or wrong. I simply decide whether it was reasonable to exercise the power. If one looks afresh at all that evidence and the letter of recommendation, with all the criticisms of it that one can make in the light of Mr. Khan's evidence, if I am asked to say whether this decision was so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it, then I am afraid that I cannot say that the decision was in breach of the Wednesbury principle. I am quite satisfied that the decision was taken in good faith, and it was not taken in breach of the Wednesbury principles.

83. Now having regard to my decisions about those matters it follows that it is my judgment that this is not a case in which the court can seek to interfere with the exercise of the power to dismiss Mr. Khan and that is an end of the case.

84. I would like to add this. If my decision had been otherwise, I would have invited counsel to make further submissions in relation to whether or not I ought to exercise my discretion to grant relief. I would have had in mind particularly the loan shark incident. Without making any decision as to what I would have done (because I haven't heard counsel) having regard to what Mr. Khan told me about the loan shark incident it was quite clear that he didn't take the view that he had acted in any way improperly in that incident and I am afraid that reflects inevitably upon his judgment. That would have been a matter about which I would have required submissions and I would have required to be satisfied that having regard to that matter it would be right to give relief. I say no more about the matter.

85. In those circumstances there will be judgment for the defendant.

86. Judgment for the defendant with costs and the plaintiff's costs will be taxed under the legal aid scheme. There will be a certificate for two counsel.

Representation:

Richard Mills-Owns, Q.C. & Ruy Barretto (Tang & Knight) for Plaintiff

Jonathan Daw, Senior Assistant Crown Solicitor, & Davies Hui, Crown Counsel for Respondent