Li Chi Keung v. Commissioner of Correctional Services

HCMP003575/1994

1994 MP No. 3575

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Sears in Court

Date of hearing: 24 July 1995

Date of delivery of judgment: 24 July 1995

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J U D G M E N T

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1. This is an application for judicial review of a decision from the Commissioner of Correctional Services. The Applicant is an officer of the Siu Lam Psychiatric Centre and he has to perform his duty from 6:45 in the morning to 13:45 in accordance with the Principal Officers and Officers duty roster and the charge that was laid against him was that he reported for duty at 6:58 instead of 6:45, that is some 13 minutes late. The charge arises under the Prison Rule 239(1)(k)(ii) which reads :

"Any officer of the Correctional Services Department commits a disciplinary offence who without proper authority or reasonable excuse arrives late for any duty operate."

2. On this particular day on 11th June, this officer did arrive late for duty and therefore, prima facie, committed an offence.

3. May I say at the outset for this type of case that I well recognise the importance of officers at the Siu Lam Psychiatric Centre turning up on time. I have read the affidavits filed from the Respondent and it is abundantly clear, in my view, that the régime of this Centre necessitates officers being punctual and if officers are not punctual, it can lead to inadequate staff strength to maintain high security control of such a centre and it is of importance, therefore, for people to be on time.

4. The only issue in this case is whether or not the adjudicating officer approached the matter on this offence in accordance with the law. In other words, did the adjudicating officer examine the surrounding circumstances, such as to come to a balanced conclusion that it was without reasonable excuse?

5. I have read several times the findings which he made and he recites, as Miss Shine has pointed out to me very properly, that the traffic congestion had been caused by a traffic accident. What had happened, in fact, on this particular day, was that the Applicant had left for his duty at what he considered a proper time in order to get to his place of work in time. He said he set off early in the morning, allowing himself a reasonable safety range in the case of any unlikely traffic congestion. Normally he can arrive before 6:05. He said that he set off to work and at 6:25 when he reached the Tuen Mun Highway near the Tsing Lung Tau Bridge, he was caught by very heavy traffic congestion. He noticed that there was a serious traffic accident which had caused the congestion and a police car at the scene. The highway was blocked entirely to make way for the rescue and no vehicles were allowed to pass through. He waited there for a long time until after the rescue was completed and the accident was reported in the newspaper and has been confirmed by a letter.

6. There is no doubt at all that there was a serious traffic accident on that day and the adjudicating officer appears to have accepted it, evidence being called by the Applicant on it. How then did the adjudicating officer approach the determination as to whether or not this was a reasonable excuse? He said at p. 23 and this is the heart of the decision, in other words, the reason behind his decision :

"When examining whether his excuse for late for duty is a reasonable one or not, I must point out that the approval for such application is very strict in disciplinary settings. Only in very exceptional case would approval be given."

That is saying that if one wants to make an application to be late, then it is only for very exceptional matters but he goes on,

"Late for duty caused by traffic congestion can hardly be considered as exceptional because traffic congestion along Tuen Mun Highway is well known to the public."

7. I am not quite sure where he gets that statement from but if he means that traffic congestion is an ordinary part of everyday life in Hong Kong, he is obviously right. But what he has said is that late for duty, traffic congestion cannot be a reasonable excuse, one has got to have something greater than reasonable, one has got to have an exceptional matter. He goes on to say :

"Now it is clear that Officer Charged did not give a serious thought about his journey, about the possible delay caused by traffic congestion. If he did plan his journey carefully coupled with good sense of responsibility, he would not have arrived late for duty."

8. In my judgment, it is clear when that is read that what he is saying in reality is that traffic congestion per se cannot amount to a reasonable excuse. Now I fully accept the factual position that, for example, if an officer put forward as a reasonable excuse traffic congestion caused by road works, it is obviously right to point out that you have got to make allowance for the fact that road works had taken place, but to use an extreme example, if an airplane had crashed on the highway causing severe traffic congestion, obviously that would be a reasonable excuse. Similarly I would have thought that a serious traffic accident necessitating the police blocking the highway in order to enable rescue vehicles to get to the scene, is something which one would not normally expect to happen. It was not traffic congestion caused by the volume of traffic but a serious traffic accident which caused traffic congestion. It was a serious matter which happened on that day and reported in the press. I would have thought, it goes without saying, that it is easily capable of amounting to a reasonable excuse. What the adjudicating officer has said is that that cannot possibly be a reasonable excuse.

9. In my judgment, he approached this matter wrongly as a matter of law, he adopted the wrong standard and he deprived this Applicant from having his reason for being late on that day being properly considered. As I have said earlier the fact that he was 13 minutes late, is neither here nor there. It is of importance for these officers to be on time and I think the Correctional Services are completely right in adopting strict standards for their officers, and if their officers transgress in imposing proper punishments, but that is not to say that a person, as a matter of law, is not entitled to have his reason properly considered.

10. In my judgment, the reason for being late, namely, the traffic accident which occurred which led to traffic congestion was not properly considered by the adjudicating officer. He has made an error of law. In my judgment, I should quash that decision. Subsequently, there was a review of the findings, I think it necessary also to quash that. The decision falls within the parameters of the CCSU case and I therefore quash it.

Representation:

Mr. G.J.X. McCoy and Mr. Gibson Shaw instructed by William K.W. Leung & Co. for the Applicant.

Ms. L.M.A. Shine, S.C.C. (Crown Solicitor) for the Respondent.