Kam Wai Hung v. Secretary for Justice

HCAL002546/2001

HCAL2546/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.2546 OF 2001

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Coram: Hon Burrell J in Chambers

Date of Hearing: 12 December 2001

Date of Decision: 19 December 2001

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D E C I S I O N

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1.This is an application for leave to apply for judicial review. A review is sought of a decision made by the respondent which increased a punishment against the applicant following Police disciplinary proceedings from a "severe reprimand" to "compulsory retirement".

2.The test for granting leave to apply for judicial review is whether or not the materials before the court disclose matters which might, on further consideration, demonstrate an arguable case for the relief sought. It has been described as a low threshold test which indeed it is. It is a lower threshold than having to show an arguable case.

3.At this stage the applicant advances three complaints :

(1) Regulation 14(4) of the Police Force Disciplinary Regulations (Cap.232) requires a senior police officer to communicate the result of defaulter proceedings to the defaulter and forward the defaulter report to a "Force Disciplinary Officer" ("FDO"). In this case the result was communicated very soon after the hearing however the report was not forwarded to the FDO until four months later. The point being made is that when the applicant received the result of the hearing - namely a severe reprimand, he went back to work, not wishing to appeal, and got on with his duties.

4.It is submitted that this chronology of events poses three questions which merit consideration in a judicial review. Should the defaulter report be sent at the same time or reasonably soon after the communication of the result? If so, is four months a reasonable or an unreasonable delay? Was the applicant entitled to assume, after the passage of a reasonably short period of time that the matter had been concluded and he could get on with his job?

5.It is submitted by the applicant that the four-month delay is a procedural impropriety which, arguably, should result in the relief sought being granted.

(2) Regulation 14(5) requires the FDO to do certain acts within 14 days. Although the evidence is unclear, it is arguable that those acts in this case were only done within 16 days. The question arises - are the time limits strict?

(3) The applicant was informed that the FDO intended to increase the punishment to "compulsory retirement". In accordance with the regulations the applicant was invited to "show cause" why the punishment should not be increased. This he did in writing. The day following his written submission he was informed that the FDO "stands by decision to increase ...". The question which arises here is - by using the expressions "stands by his decision" could it be said that the FDO had already made a decision prior to receiving the applicant's written submission, thus rendering the "showing of cause" a futile exercise?

6.Counsel for both parties agreed that should the court's decision be against the granting of leave, it should be accompanied by reasons. If however leave is to be granted reasons should not be given at this stage because a fuller hearing will follow.

7.In my judgment, taken individually and separately complaints (2) and (3) above would probably not have merited leave being granted. Complaint (1) however I think does meet the threshold. This being the case, complaints (2) and (3) come back into focus, as part of the overall picture.

8.Save to say that there might, on further consideration, be an arguable point arising out of complaint (1), on the particular facts of this case, I consider it inappropriate to give any further reasons. Leave will be granted.

9.I do however consider it appropriate to make a concluding observation. The very low threshold for the granting of leave carries with it a consequence to the disadvantage of some applicants. There will be cases where, although the court feels it ought to grant leave, the realistic likelihood of the complaint, upon further consideration, being argued to a successful conclusion, is nonetheless remote. The applicant will then have been put to the expense of two hearings on a weak, albeit not hopeless, case. Only time will tell if this is such a case.

Representation:

Mr Peter Duncan, instructed by Messrs Liau, Ho & Chan, for the Applicant

Mr Newton Chan, GC of Department of Justice, for the Respondent