Re Fong Hin Wah

Case No.HCMP 135/1985[1985] HKLR 332

Court

High Court CFI

Date28 Mar 1985

Judge—

Case Document

100%Judiciary

HCMP000135/1985

Headnote

Judicial Review.

Disciplinary proceedings.

Should an officer appearing at such a hearing be entitled to insist upon being legally represented at the hearing.

Held. There is no such right.

Necessity to adjourn proceedings if evidence indicates that a further or alternative charge should be laid for the purpose of formulating a further charge and enabling the officer to answer it. Held. Such a course should be adopted. However in the circumstances of this hearing this irregularity was not such as to render the proceedings unfair or contrary to the rules of normal justice.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 135 OF 1985

________

IN THE MATTER of an application by the Applicant, FONG HIN WAH, for Judicial Review for an Order of Certiorari under Order 53 Rule 1(1) of the Rules of Supreme Court 1981 andfor related DECLARATIONS under Order 53 Rule 1(2) and Rule 2 of the Rules of Supreme Court 1981

and

IN THE MATTER of compulsorily retirement by His Excellency the Governor under Colonial Regulation 57 and Section 5(2) of the Pensions Ordinance, Chapter 89, of the Laws of Hong Kong.

__________

Coram: Hon. Mayo, J. in Court

Date of hearing: 13 & 14 March 1985

Date of delivery of judgment: 28 March 1985

___________

JUDGMENT

___________

1. The applicant was formerly an Immigration Officer. By a letter dated 25th of October 1984 from the Secretary for the Civil Service, he was advised that His Excellency, the Governor, had directed that he should be compulsorily retired with effect from 1st November 1934 and that payment of his pension would be suspended until he attained the age of 55.

2. The applicant complains that when His Excellency made this direction, he was acting contrary to the Rules of Natural Justice and he now is seeking a writ of certiorari pursuant to the provisions contained in Order 53 of the Rules of Supreme Court. At the conclusion of the proceedings, Mr. Eddis who was representing the applicant made an application to substantially amend the applicant's statement in support of the application as the Grounds relied upon were significantly at variance with the grounds put forward in support of the application for leave for the Judicial Review. Mr. Whaley for the Crown did not oppose this application for the amendments and I granted leave accordingly. I think that it may be helpful for me to set out the amended grounds:

"	3 The grounds upon which the said relief is sought are,

(a)	There was no alleged offence of misconduct that the applicant had engaged in unauthorised paid outside work in the "Statement of Alleged Offence" given to the applicant in the letter dated 18th February 1984. Further the applicant was not called upon to argue the specific allegation that he was engaged in "unauthorised paid outside work", the applicant therefore had no opportunity to answer the specific allegation stated above.
(b)	There was a failure by the Investigating Committee to direct itself to the evidence in that the decision of finding the applicant guilty of misconduct in respect of findings (a) and (b) were either such that no authority properly directing itself on relevant law and acting reasonably would have reached them or this Court cannot be satisfied on the civil standard of proof to the appropriate degree of probability that the facts found to exist did exist.
(c)	That the finding that the applicant, without reasonable excuse, kept in his possession a cancelled re-entry permit was contrary to the evidence adduced at the hearing of the disciplinary investigation and further and/or in the alternative if there was such evidence whereupon to found such finding, the mere possession of such a cancelled re-entry permit was not contrary to Immigration Standing Order 208.8.
(d)	(i)	There was a disregard of the Rules of Natural Justice in that in a matter affecting the applicant's reputation and livelihood failing to afford the applicant opportunity to be legally represented and thus failing to afford him an adequate opportunity of making his defence or to question witnesses.
	(ii)	Failure by the Investigating Committee to disqualify themselves from continuing with the hearing after learning that two of the applicant's witnesses had already appeared before them in earlier disciplinary proceedings."

3. As a matter of convenience, I propose dealing first with what I think can best be described as the two alleged procedural improprieties which are complained of by that applicant. I refer to the complaints that he was deprived of the right to have legal representation at the disciplinary hearing and that the disciplinary board failed to disqualify itself on learning that two of the applicant's witnesses recently themselves appeared before the said board in respect of disciplinary proceedings concerning them.

4. The disciplinary hearing was conducted in accordance with the Regulations contained in the Disciplinary Proceedings (Colonial Regulations) Regulations which are Annex IV of the Civil Service Regulations. Regulation 8(3) provides as follows:

(3) The officer may be assisted in his defence. by,

(a) another public officer (with the exception of legally qualified officer) who may be a representative member of a staff association represented on the senior Civil Service Council, or

(b) such other person as the Governor may authorise".

At the hearing the applicant was represented by a Mr. Yeung who was a friend of his. Mr. Yeung apparently works as an unqualified clerk in a solicitors office. Mr. Eddis informed me from the bar that he had received instructions that the applicant had been under the impression that he would not be permitted to instruct a solicitor to act as his friend. He said that the applicant was prepared to swear an affidavit to this effect and to further procure an affidavit from an unnamed solicitor who he had approached in this connection. Mr. Eddis applied for an adjournment to enable such an affidavit to be filed. I refused this request as I was not satisfied that even if such an affidavit was filed and the evidence therein accepted, it would be of material assistance to the applicant's case. I am prepared to accept for the sake of this application that the applicant did want to be legally represented and that he awes under the impression that this would not be possible.

5. It will be noted from Regulation 8(3) that it is not clear one way or the other whether the applicant would have been permitted to have a solicitor to assist him. It would all depend upon whether His Excellency would have been prepared to authorise the appointment of the solicitor as a friend.

6. Mr. Eddis submitted that the Rules of Natural Justice required that a person should be entitled to legal representation where his reputation and livelihood were at stake. In support of this proposition, he cited a passage appearing on page 132 of the Judgment of Lord Denning M. R. in Pett v. Greyhound Racing Association⁽¹⁾ :

Once it is seen that a man has a right to appear by an agent, then I see no reason why that agent should not be a lawyer. It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weak-nesses in the other side. He may be tongue-tied or nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A magistrate says to a man: "You can ask any questions you like", whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him. And who better than a lawyer who has been trained for the task? I should have thought, therefore, that when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He also has a right to speak by counsel or solicitor.".

7. It would appear that Lord Denning himself has retreated from this principle in two more recent oases. He referred to Pett v. Greyhound Racing Association on page 1133 of Fraser v. Mudge^{(2) :}

Mr. Sedley has referred us to Pett v. Greyhound Racing Association Ltd. (1969) 1 Q.B. 125, where a charge was made before the Greyhound Racing Association that dogs had been doped. We indicated that it might well be proper that a legal representation should be allowed. But it seems to me that disciplinary cases fall into a very different category. We all know that, when a man is brought up before his commanding officer for a breach of discipline, whether in the armed forces or in ships at sea, it never has been the practice to allow legal representation. It is of the first importance that the cases should be decided quickly. If legal representation were allowed, it would mean considerable delay. So also with breaches of prison discipline. They must be heard and decided speedily. Those who hear the cases must, of course, act fairly. They must let the man know the charge and give him a proper opportunity of presenting his case. But that can be done and is done without the matter being held up for legal representation. I do not think we ought to alter the existing practice. We ought not to create a precedent such as to suggest that an individual is entitled to legal representation.".

And then the following year, he again considered the same principle in Maynard v. Osmond^(3).At page 718 he said:

He should, therefore, be entitled to have a lawyer if-he wants one. But, even if he should not be entitled as of right, I should have thought that as a general rule the tribunal should have a discretion in the matter. Legal representation should not be forbidden altogether. The tribunal should have a discretion to permit him to have a lawyer if they think it would assist. They are masters of their own procedure: and, unless clearly forbidden, should have a discretion to permit it."

8. Clearly it is necessary to have regard to the nature of the proceedings being conducted. Fortunately some assistance can be derived from Regulation 8(5) of the Regulations I have earlier cited. This reads:

The enquiries should not be conducted with undue formality and while there is no standard practice which would be applicable to every case, it is emphasised that the Investigating Officer or Committee is not exercising a legal function, but rather ascertaining the facts.".

None of the members of the Investigating Committee had legal qualifi cations. The officer who presented the case for the Immigration Department was not legally qualified. I am of the opinion that the presence of a lawyer would have been incongruous in the context of the disciplinary hearing. The proceedings were of an informal nature and the Committee was not equipped to deal with legal submissions or arguments.

9. I have also borne in mind that the legislature has been fit to enact the Labour Tribunal Ordinance Cap. 25. This Ordinance is designed to, inter alia, deal with matters relating to the termination of contracts of employment. It is specifically provided in this Ordinance that parties to proceedings are not permitted to be legally represented. It obviously makes good sense that proceedings of this nature should be conducted expeditiously and in an informal manner. Having regard both to the provisions contained in the Labour Tribunal Ordinance and of the circumstances of this disciplinary enquiry, I am satisfied that it would have been incongruous and inappropriate for the applicant to be legally represented at the hearing. It follows from this that there was no denial of natural justice arising as a result of the applicant not being legally represented.

10. The second complaint is more easily dealt with. Mr. Yeung alerted the Committee to the earlier disciplinary proceedings relating to the two witnesses. After a short exchange, both he and the applicant appeared to be satisfied that the Committee would act fairly nothwith standing this knowledge and the proceedings continued. It is perhaps relevant to add that neither of these witnesses gave evidence in connection with the matters referred to in the findings of misconduct. Mr. Eddis suggested that there might be some prejudice in the minds of the members of the Committee as they might be inclined to associate the applicant with his witnesses characters. There is no evidence that. either of the witnesses were ever found guilty of any misconduct in relation to the disciplinary proceedings concerning them. I do not see any merit in this submission and I am certainly not satisfied that there has been any breach of the Rules of Natural Justice.

11. I will now consider what seems to me to be the most serious attack upon these proceedings. It is what Mr. Eddis described as being the disregard of the fundamental conditions of the administration of justice. The problem he referred to was the disparity between the charges laid against the applicant and the findings of guilt which were reached. The charges were:

"	(a)	During the period from March 1981 to January 1982, you failed to report to your head of department a conflict of interest between your public duties and your private business arising from your investment in the Leader International, a subsidiary of the Leader Travel Service Limited (H K), which had official dealings with your department, contrary to CSB Circular 18/81;
	(b)	On several occasions between June and August 1982, without permission from the Section Head, you visited the Entry Visa Section, which was outside your sphere of responsibility, for the purpose of assisting some friends in their applications, contrary to Immigration Service Standing Order 21.1 (xii);
	(c)	On various occasions during the period from 1979 to 1982, you involved yourself in the processing of applications for various immigration facilities where such involvement was not in pursuance of your official duties, contrary to Immigration Service Standing Order 21.1.(vi); and
	(d)	On or about the 7 December 1982, without reasonable excuse, you kept in your residence a cancelled Hong Kong re-entry permit No. F563970 in the name of CHEUNG Chung, contrary to Immigration Service Standing Order 208.8."

The findings of guilt are contained in the letter of the 25th October 1984 from the Secretary for the Civil Service to the applicant and read as follows:

"	(a)	you had engaged in unautherized paid outside work,
	(b)	you had intended to assist a lady from Taiwan with her application for an entry visa into Hong Kong whilst such involvement was not in pursuance of your official duties, and
	(c)	you, without reasonable excuse, kept in your possession a cancelled re-entry permit."

12. During the proceedings, Mr. Whaley very helpfully informed the Court that finding (b) was based upon the material contained in Charge C. Having regard to the further and better particulars which were furnished by the Secretary for the Civil Service in this connection, Mr. Eddis accepted that the applicant had received sufficient particulars of the matters giving rise to the finding of misconduct in (b). He did, however, make strenuous objection to the Committee's finding in this connection and I propose dealing with this later in this judgment.

13. It is most regrettable and unsatisfactory that there should be a disparity between eventual findings of guilt and charges which are laid in disciplinary proceedings. While I am conscious of the informal nature of the proceedings, I hope that every possible effort will be made in future to prevent a recurrence of this situation. If during the course of proceedings, it becomes evident that an officer may have committed some other disciplinary infraction, the proceedings should be stopped and a further charge should be laid which sufficiently embraces the further or alternative alleged misconduct. There is machinery in the Regulations for this. What I now have to consider is whether the issues were sufficiently framed to afford the applicant a reasonable opportunity of ventilating the issues giving rise to the first finding of misconduct, namely that he had engaged in unauthorized paid outside work.

14. It will be noted in Charge A that reference is made to the applicant's investment in Leader International, a subsidiary of Leader Travel Service Limited (HK) which gave rise to a conflict of interest. It is evident from a perusal of the record of the proceedings that no sufficient evidence existed to enable the Committee to make a finding of fact that the applicant had involved himself in any conflict of interest. However, during the course of the proceedings, the applicant did admit that he had invested HK$20,000 in Leader International and had performed work for this organisation. I would observe that on the evidence available, Leader International was a partnership consisting of Mr. Fong and a Mr. Chan and obviously it could not be a subsidiary of Leader Travel Service Limited (HK.).

15. As it might be appreciated the question of civil servants undertaking paid work outside their official duties is closely interrelated with the subject of getting themselves involved in situations where there might be a conflict of interest. An example of the situations under which conflict of interest can arise out of civil servants extramural activities is illustrated in the Civil Service Branch Circular on this subject. At the commencement of the Civil Service Regulations there is an introduction which contains an explanatory note which describes the validity and weight to be attached to the regulations and documents issued pursuant thereto. There is a statement to the effect that Civil Service Circulars are to be given the same weight as the regulations themselves. The Civil Service Branch Circular dealing with the subject of conflict of interest is numbered 18 of 1981 and was issued on the 18th of August of that year. Paragraph 13 of the Circular reads as follows:

"	Outside work.
	13.	The attention of all officers is drawn particularly to CSRR 550 to 553 governing the performance of outside work. Officers are reminded that they must not take up any paid outside work without permission and that permission will not normally be given where the outside work mould involve the use of information made available to the officer in his official capacity or could give rise to a splitting of loyalty between the Government and his outside employer. While no permission is required to perform unpaid outside work outside the office hours, it is the duty of every officer to consider conscientiously before undertaking the work whether it might give rise or appear to give rise to any conflict of interest .....",

16. I accept that when the applicant was giving evidence before the Committee, he was mainly directing his attention to the complaint made in the charges. His main efforts were directed towards denying that his work with Leader International involved any conflict of interest with his duties as an Immigration Officer. However, he freely admitted that he had invested $20,000 in this venture and that he had withdrawn from the scheme when it was apparent that it would not be profitable. Having regard to the overall circumstances of this case, I do not think that the applicant has suffered any prejudice or been at any disadvantage as a result of the Committee's failure to frame a fresh or alternative charge against him to the effect that he had undertaken or been engaged in unauthorised paid outside work. It appears to be common ground that he did not seek nor did he obtain the permission of his head of department in respect of his involvement with Leader International either in respect of any conflict of interest or for permission to undertake paid outside work. I do not consider that there has been any breach of the rules of natural justice under this head.

17. I will next consider Mr. Eddis's complaint that the Investigating Committee failed to direct itself properly to the evidence which was before it. This complaint is made in accordance with the principles which were propounded in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation⁽⁴⁾. This case is authority for the proposition that executive action can be the subject of Judicial Review where the exercise of power is so unreasonable that the decision should be reviewed. The circumstances when it might be appropriate for the Court to intervene in such a case were referred to by lord Diplock at page 1196 of C.C.S.U. V.Minister for Civil Service ⁽⁵⁾. Lord Diplock in his speech at page 1196 said:

By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses . Ltd. v. Wednesbury Corporation (1948) 1 K. B. 223). It applies to a decision which is so outrageous in its definance 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.".

I accept that this is the criteria which should be adopted in determining whether His Excellency directions can be quashed. Mr. Eddis submitted that there was no evidence whatever that the applicant had engaged in unauthorized paid outside work. He said that all the applicant had done had been to invest monies in Leader International. Even if he had undertaken work for this company, he had not received any remuneration for doing so and accordingly his work could not fairly be described as paid work. To test the validity of this contention, it is necessary to have regard to the Civil Service Regulations on this subject. These are contained in Regulation 551. This reads:

"	Paid Outside Work Out of Working Hours
	551. (1)	An officer must obtain his Head of Department's consent before he: -
		(a)	engages on his own account in outside work for remuneration of any sort; or
		(b)	accepts paid employment of any sort, outside of his normal working hours.".

In my view, there could be no doubt whatever that Regulation 551 (1) (a) deals directly with this situation and there can be no doubt that work on his own account includes working with a partner in a venture. It would be fanciful to imagine that the applicant was performing the work he did for altruistic motives. This is supported by his evidence to the effect that he withdrew from the venture when he realised that it would not be profitable. Clearly it was in contemplation that he would receive a financial benefit in return for the work he was undertaking.

18. Mr. Eddis's second complaint under this head relates to the second finding of misconduct namely that he intended to assist a lady from Taiwan with her application for an entry visa into Hong Kong while such involvement was not in pursuance of his official duties. The evidence in support of this finding vainly consisted of the production of the sponsorship form which was found at the applicant's residence when the officers of the Independent Commission Against Corruption conducted a raid on the 7th of December 1982. Miss C .H. Chu, a Taiwanese citizen was applying for a visa to enable her to stay in Hong Kong. She arranged for her friend Sindy Phathanvirangoon to act as her sponsor. Miss Phathanvirangoon was a friend of the applicant's. Both the applicant and Miss Phathanvirangoon gave evidence before the Committee and attempted to give an explanation how the sponsorship forms came to be found at the applicant's flat. It would appear that these explanations did not find favour with the Committee. This being the case no satisfactory explanation was forthcoming as to how the forms were in the applicant's possession and presumably the Committee drew unfavourable inferences from this.

19. Adopting the criteria I have earlier referred to, I am satisfied that it is not arguable that the Committee or His Excellency were in any way perverse in coming to the conclusions they did.

20. The final matter I will refer to is the complaint made concerning the 4th finding of misconduct, namely that the applicant, without reasonable excuse, kept in his possession a cancelled re-entry permit contrary to Immigration Service Standing Order 208.8. At the conclusion of the hearing, Mr. Eddis conceded that there was evidence to support this finding of misconduct. However, he submitted that it was such a minor offence that it should never have been the subject of an enquiry under Regulation 57. He contended that it would have been more appropriate for disciplinary proceedings to be taken under Regulation 56 which related to less serious offences. I invited Mr. Eddis to give me some authority for the proposition that such a complaint could be the subject of a Judicial Review. He was unable to do so. I fail to see any merit in this contention.

21. For the reasons I have given, I have come to the conclusion that none of the grounds advanced by the applicant can be sustained. This application is therefore dismissed and I decline to grant any of the relief which is sought. The Attorney General will be entitled to, his costs.

	(Simon Mayo)
	Judge of the High Court

(1) (1969) 1 Q.B. 125

(2) (1975) 1 W .L. R. 1132

(3) (976) 3 W. L. R. 711

(4) (1948) 1 K .B. 223

(5) (1984) 3 W. L .R. 1174

Representation:

Mr. Francis Eddis inst'd by Messrs. Y. K. Poon & Co. for Applicant

Mr. Whaley of Attorney General Chambers for Respondent

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