Chow Wai Hung v. The Hong Kong Government

HCA000951/1983

The plaintiff was directed to retire with earned leave and pension under Colonial Regulation 59 - An action by writ was instituted for, in substance, challenging the validity of the decision - The Attorney General applied for striking out the Statement of Claim and the action on the force of O'Reilly v. Mackman [1982] 3 W.L.R. 1096.

Held:

BETWEEN

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Coram: Hon. LIU J. (In Chambers)

Date: 23 March 1983

Re: Striking out Statement of Claim.

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JUDGMENT

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1. The plaintiff, Mr. Chow sues the Hong Kong Government.  Mr. Chow was not legally represented. Mr. Graham, counsel for the Attorney General was constrained to waive his objection to the irregularity, and the hearing was proceeded with as if the Attorney General had been duly joined in his representative capacity under section 13 of the Crown Proceedings Ordinance.

2. Mr. Chow joined the Civil Service as a Clerical Assistant in March 1966 and he was confirmed to the permanent and pensionable establishment in 1970. He had served in various Government departments, and at the time of his directed retirement in late 1982, he held the rank of Clerical Officer II.

3. On the 4th June 1982, His Excellency the Governor on the advise of the Public Services Commission required Mr. Chow to retire at the expiration of a period of leave. Mr. Chow was given retirement benefits based on his actual pensionable service up to the date of his directed retirement.

4. The defendant maintains that the abrupt termination of Mr. Chow's service was for good cause shown pursuant to Colonial Regulation 59. The plaintiff feels aggrieved, but these proceedings are not, by their very nature, dependent on merits.

5. I shall come then immediately to the letter from the Secretary for the Civil Service to the plaintiff dated the 10th June 1982, whereby Mr. Chow was informed that the Governor had directed that he be retired in the public interest under Colonial Regulation 59 with effect from a determinable date which fell on the 3rd September 1962.

6. By a writ duly issued from the Registry of the Supreme Court on the 22nd January 1983, Mr. Chow commenced an action against the defendant in terms of a Statement of Claim endorsed thereon. The Statement of Claim, couched in inelegant language, reads as follows:

7. Before the court are two summonses of the Attorney General, one of which seeks an order for striking out the Statement of Claim and, I presume, also the action as an abuse of the process of the court in that the plaintiff has proceeded by way of writ instead of an application for judicial review under Order 53 of the rules of the Supreme Court. The other summons prays for an extension of time to file a Defence, if need be, after the determination of the earlier summons for striking out.

8. Therefore, the short question is whether in seeking relief on the decision for his directed retirement, the plaintiff has adopted the correct procedure. The plaintiff was unaided. The matter before the court was not only crucial to the plaintiff but of general public importance. The Crown had unsuccessfully applied for legal representation to assist Mr. Chow or otherwise in the appearance of amicus curiae. More grievances, genuine or contrived, from a Crown servant of more than 16 years' continuous service cannot be imagined. But it must be made crystal clear at the outset that the court is not called upon to determine the substance of what the plaintiff has seen fit to advance as his claims in this action. The only matter at issue is the initiating procedure selected by the plaintiff, which the defendant condemns as improper. In order to decide on the correct initiating procedure, the plaintiff's causes of action need be more closely examined.

9. Mr. Chow must have entered into some agreement with the Croon when he joined the permanent establishment. We know not the nature of the agreement, nor the terms under which he served. We are ignorant of the precise relationship so created. The court is also unaware if such relationship was subjected to any Colonial Regulations, Government Regulations and/or Civil Service Regulations. In total silence of his terms of service, Mr. Chow has evidently confined his complaints to the decision made on the 10th June 1982 as conveyed to him by the letter of the same date from the Secretary for the Civil Service.

10. The "declarations" sought in the four paragraphs of the plaintiff's Statement of Claim are, firstly that the decision was null and void by reason of a breach of the rules of natural justice viz. he "had not been heard". Indeed, Colonial Regulation 59(1) expressly affords an opportunity to a public servant in distress for making representations. Paragraph 2 complains that his case was not processed with fairness in that his ill health and the side effects of his medication had not been duly taken account of. Paragraph 3 challenges the same 1982 decision as not having been made in good faith or with impartiality "because it was made at a meeting in (his) absence". Paragraph 4 puts in issue the validity of the meeting at which his accusers allegedly sat as judges. These attacks levelled at the decision conveyed to him on the 10th June 1982 are all criticisms of either the manner in which it was allegedly reached or the materials on which it was allegedly based.

11. It is not disputed that the relevant Colonial Regulations applied to the plaintiff in his former capacity of a public servant. The relevant Colonial Regulations including that relied upon by Mr. Chow are set out below:

12. The directed termination of Mr. Chow's public service also presupposes the existence of a former relationship with the Croon. Even assuming such relationship to be a simple contract of employment as that found in Choi Sum & Others v. A.G.,⁽¹⁾ and Lam Yuk Ming & Others v. A.G., ⁽²⁾ the plaintiff can by no stretch of imagination be said to be relying here on any alleged breaches of his private rights under such contractual relationship with the Crown, and this court is gratefully spared from an attempted examination of the framework and context of that association, the terms of which were undisclosed. It is reasonably clear that the plaintiff's complaints are exclusively directed at the 1982 decision made pursuant to Colonial Regulation 59.

13. Colonial Regulations have been held by the Court of Appeal in Lam Yuk Ming case as part of the Crown's instructions to the Governor, mandatory in nature and having the effect of subordinate legislation. (3) Colonial Regulations are unquestionably part of our public law, and the decision requiring the plaintiff to retire under Regulation 59 was without doubt a public law decision. The plaintiff's real grievance is that in the exercise of their decision-making functions under these Colonial Regulations, the executive have allegedly gone astray. By necessary implication, the plaintiff must be complaining also that the impugned decision has prejudicially affected his private rights including his right to continued employment. But within its narrow compass, the plaintiff's claim in this action is wholly founded on his basic assertion that the 1982 decision made in the exercise of the executive's public law functions was vitiated by irregularities, partiality and/or procedural unfairness.

14. In Cocks v. Thanet District Council,⁽⁴⁾ Lord bridge emphatically divorced a decision made by an authority in the exercise of its public law functions from the effect of such a public law decision on a subject as regards his newly created or existing private rights. In this action, the plaintiff wishes to overturn the decision for his directed retirement merely on the alleged imperfections in the decision-making process, and interference with hid existing right to continue to serve as a public servant has never been incorporated as part of his claim. The court is only invited to determine the correct procedure whereby the authority's public law decision under Colonial Regulation 59 ought properly to be resolved.

15. In O'Reilly v. Mackman, ⁽⁵⁾ in an opinion shared by all, Lord Diplock stigmatised the use of proceedings begun by writ or by originating summons in matters fit for judicial review under order 53 of the Rules of the Supreme Court as an abuse of the process of the court, contrary to public policy and interest.  The learned Law Lord reminded the professions that all the pre-1977 procedural disadvantages for a private citizen had in substance been removed by (a) the extension of the requirement to act fairly to any decision-making tribunal whether judicial, quasi-judicial or administrative, (b) the court's power to grant discovery and interrogatories as well as cross-examination whenever the justice of the case requires, (c) the court's power to award damages, to grant injunctions and declarations and, lastly but not least, (d) the court's power to order the proceedings to continue as if they had begun by writ.⁽⁶⁾ Lord Diplock leaned heavily against any attempt to deprive a decision-making public body of the safeguards he enumerated, such as the necessity for ex parte leave serving as a safety valve, the requirement of a statement in support containing all relevant matters to be verified by affidavit thus subjecting the applicant to the sanction of an oath and its inherent risk of punishment for perjury, the demand for a candid and full disclosure on pain of dismissal, the court's powers to impose terms as to costs or security, the prescribed three months' time limit unless otherwise extended for seeking judicial review and the likelihood of a speedy hearing and early determination. These, as the learned Law Lord so upheld, are the essence of protection for a public body against harassment. In Cocks v. Thanet District Council, ^(4a) Lord Bridge placed further emphasis on the "avoidance of the temptation for the court to substitute his own decision of fact for that of the ..... authority."

16. It is, however, recognised by Lord Diplock that "there is great variation between individual cases that fall within Order 53" and that the inherent power of the High Court to restrain abuses must be "exercised upon a case to case basis".   Moreover, Order 53 has not made the procedure by application for judicial review "the exclusively procedure available" at least in the case of a declaration or injunction in respect to an infringement of public law rights. At p.1110 C/D, a general rule was formulated in their Lordships House in these terms:

"It would as a general rule be contrary to public policy, and such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities".

17. To that general rule, two more usual exceptions were noted in passing viz. "where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons". Even with several claims made on alleged infringements of both public law rights and private law rights, they ought to be adjudicated in one court under Order 53 whenever practicable.  Davy v. Spelthorne Borough Council ⁽⁷⁾ is an illustration, where two out of three claims by writ in the Chancery Division of the English High Court were held to be matters of public law fit for judicial review under Order 53. The remaining claim for damages for negligence, as a matter of private law, was allowed to remain in the Chancery Division. In tolerating litigation in different courts, the English Court of Appeal was much influenced by the possibility of the plaintiff's failure to obtain leave for making an application for judicial review by reason of delay or lack of merits in the other two public law claims. But it was urged in no uncertain terms that whilst the claim for damages for negligence in private law was permitted to survive in the Chancery Division and to be proceeded with by writ, all the three claims, two in public law and the remaining one in private law, should be brought together in one court under Order 53 if the plaintiff's application for leave for judicial review in respect to the public law claims should prove to be successful. The case of Davy demonstrates the judicial determination, in defence of the jealously guarded protection for public authorities, to go to such lengths as would split claims for adjudication in different venues.

18. The Attorney General takes great exception to the form of the procedure by writ adopted by the plaintiff. The plaintiff's present action exclusively relates to the 1982 public law decision for his directed retirement made under Colonial Regulation 59. This 1982 decision has probably affected his existing rights and operated to his detriment, but we are unconcerned with whatever prejudice tie may or happens to have suffered. There are no known circumstances which can remotely be regarded as capable of giving rise to an exception to the general rule. No special features exist for stripping the authority of the protection provided by the procedural safeguards in Order 53.

19. The plaintiff relied on the King v. British Broadcasting Corporation Ex parte Lavelle, ⁽⁸⁾ where a proposed enforcement of private law rights arising out of a "pure employment situation" was held not to be a proper matter fit for judicial review under Order 53. The plaintiff is unrepresented, and his authority is merely referred to for the purpose of explaining its irrelevance.

20. Mr. Chow would be out of time for an intended prayer for certiorari, and he may be regarded as being guilty of undue delay for other relief in an application for ex parte leave. Whilst not offering to desist from raising the three months' prescribed limit or the question of delay, Mr. Graham invited the court to assure the plaintiff that few courts would not favourably receive his application, if made, for ex parte leave under Order 53. If indeed the plaintiff's claims as presented to the Full Bench are otherwise not groundless or unmeritorious, I wholeheartedly share Mr. Graham's sentiments. The plaintiff is after all legally unrepresentated. If his claims are well founded and adequately supported, I can see no compelling reason why any Full Bench before whom the plaintiff appears as applicant would not sympathetically extend to him a wider latitude.

21. In the circumstances, the plaintiff should not be permitted to remove or impair any of the safeguards envisaged by Lord Diplock in O'Reilly v. Mackman, ⁽⁵⁾ for the protection of the authority, and the Attorney General's application succeeds. I order, therefore, that the Statement of Claim be struck out. As it would be futile to afford an opportunity to the plaintiff for amending his pleading, I would also strike out the plaintiff's action so as at least to enable him to consider immediately whether an application to the Full Bench under Order 53 for judicial review is justified on the merits. There is, therefore, no necessity for considering further the other summons of the Attorney general for extension of time to file a Defence. It remains for me to order that the Statement of Claim and this action be struck out with costs against the plaintiff.

(1)    [1976] H.K.L.R. 609 at 612

(2)    [1980] H.K.L.R. 815 at 827

(3)    See p.824 ibid.

(4)    [1982] 3 A.B.R. 1135 at p.1138 a to d end p.1139 d

(4a)    [1982] 3 A.E.R. 1135 at p. 1139 f/g

(5)    [1982] 3 W.L.R. 1096

(6)   pp. 1104F, 1105 D/E, 1105F, 1107 C, D, E & F, 1108 B, D 8 G and 1109 A/B.

(7)    Times 10th February, 1983.

(8)    [1983] 1 W.L.R. 23

Representation:

Mr. Chow Wai Hung, the Plaintiff in person (Respondent)

Mr. Peter Graham, Crown Solicitors for the Defendant (Applicant)