Dr Tsoi Wing Sang v. Secretary for The Civil Service

HCAL001611/2000

HCAL 1611/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW
LIST NO. 1611 OF 2000

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Coram: Hon Chung J in Chambers

Date of Hearing: 23 November 2000

Date of Judgment: 12 December 2000

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J U D G M E N T

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Introduction

1. This is an application for leave to apply for judicial review. Prior to 29 February 2000, the applicant was employed by the Department of Health ("D of H") as a Medical and Health Officer. By a letter dated 16 May 2000 the putative respondent ("the respondent") notified the applicant that he was summarily dismissed from service with effect from 29 February 2000. This application seeks to challenge that decision.

2. The facts leading to the dismissal are largely undisputed and are as follows. The applicant joined the D of H in May 1995. Having completed a 2-year probation, his appointment was confirmed to permanent establishment with effect from 1 May 1997. His work was to provide medical consultation services at various clinics operated by the D of H.

3. From January 1999 to 30 April 1999, the applicant has intermittently taken 31.5 days' sick leave. The D of H sent a letter dated 30 April 1999 stating in essence that having regard to the frequency of the sick leave and the circumstances under which they were granted, the D of H required the applicant, pursuant to the Civil Service Regulation 1291 ("CSR 1291"), to consult 2 doctors named in the letter when he asked for sick leave. CSR 1291 provides that:-

"If a Head of Department considers that an officer is abusing the privilege of obtaining sick leave on the basis of certificates issued by private medical practitioners, he may, subject to quarterly review, require the officer to attend before a Government or Hospital Authority medical officer, or a particular Government or Hospital Authority medical officer, or to attend a particular Government or Hospital Authority clinic, on each occasion the officer wishes to take certificated sick leave. If necessary, he may also require the officer to be examined by a Medical Board under CSR 940. In these circumstances, private medical practitioners' certificates may no longer be accepted from the officer concerned, and if one is produced to support an absence from duty, the grant of sick leave will be withheld ... The period of absence will be treated as unauthorized absence and disciplinary action should follow".

The provisions of CSR 1291 were summarized in the letter of 30 April 1999 when it stated:-

"Sick leave certificates issued by other medical practitioners will no longer be valid for you to claim sick leave".

4. It is apparent that the letter dated 30 April 1999 did not stop the applicant from taking sick leave and he continued to do so without obtaining sick leave certificates in the manner prescribed. In a letter dated 15 March 2000, the D of H wrote:-

"... you have been found absent from duty without leave or permission since 25 February 2000 and that you are liable to summary dismissal under Public Service (Administration) Order 1997 Section 10(3) for a period of unauthorized absence exceeding 21 days with effect from the date of your absence ...

If you do not, on or before 5 April 2000, furnish me with a satisfactory explanation for your unauthorized absence from duty without leave ... action will be taken ... with a view to your summary dismissal ... ".

5. In a Chinese letter dated 25 March 2000, the applicant replied to the above letter. Its contents are sometimes difficult to comprehend but I shall try to summarize them. The letter commenced by saying this:-

"... 很高興部門給予一次解釋機會,起碼令人能感受一次公平風度.

... 每個遊戲都應遵守它的規則.按csr1291條例,我确實犯了應尊守它的規則.即使被炒,也悉听尊便. ... ".

Judging from these words, one would quite naturally think that the applicant admitted that he acted in contravention of CSR 1291. However, the remainder of his letter sought to justify his conduct as reasonable. His letter then put forth the following complaints:-

(a) he underwent heart surgery in June 1997 because of his heart disease;

(b) the Assistant Director of Health was guilty of mal-administration and neglect in duty. He was also guilty of depriving the applicant a chance of putting forward his defence and breaching natural justice, distorting facts and defamation to mislead the Civil Service Commission;

(c) the applicant enjoyed a good relationship with his patients and colleagues but the assessing officers defamed him by assessing that relationship to be poor;

(d) the applicant was in fact suffering from sickness but the standard of service provided by the appointed doctors was low. They wrongly diagnosed his sickness causing his condition to worsen;

(e) further, as a patient, the applicant contended he should get proper medical care. However, the appointed doctors refused to treat him until the applicant has finished work. They also required the applicant to attend work when his medical condition was poor.

6. As stated above, during the period of the correspondence, the applicant continued to absent himself from duty. At the end, the D of H sent to the applicant the said letter of 16 May 2000 summarily dismissing him with effect from 29 February 2000, the date on which the applicant started to be continuously absent from duty without leave or authority.

7. At the hearing on 23 November 2000, the applicant relied on his affirmation dated 21 July 2000 which in effect repeated his earlier complaints against the D of H. He also alleged that the decision to dismiss him was illegal, that it contravened the Hong Kong Bill of Rights Ordinance (Cap. 383) and the Disability Discrimination Ordinance (Cap. 487). On the other hand, the applicant admitted at the hearing on 23 November 2000 that, when he was absent from duty, he mistakenly thought he was suffering from cardiac disease when in fact he was suffering from mental anxiety.

8. The respondent has not argued that this matter falls within the private law domain and I shall proceed to deal with it on the assumption that it falls with the public law domain. In brief, I agree with the respondent's arguments set out in the skeleton arguments for opposing the leave application. They can be summarized as follows.

9. The applicant did not dispute the respondent's contractual entitlement to rely on CSR 1291. In view of CSR 1291, I agree with the respondent that no satisfactory explanation has been given by the applicant to the respondent for his absence from duty. The evidence before me shows that the so-called "explanation" given by the applicant was in truth arguments and accusations most of which were unrelated to the reason for his absence. Insofar as they were related to the explanation asked for, they were accusations against the competence of the appointed doctors which were not supported by independent medical opinion or advice.

10. The applicant also argued that the respondent contravened the Employment Ordinance (Cap. 57). I agree with the respondent that Cap. 57 does not bind the respondent, being part of Government: see ss. 3 and 66(1), Interpretation and General Clauses Ordinance (Cap. 1).

11. The applicant relied on Article 36 of the Basic Law which provides:-

"Hong Kong residents shall have the right to social welfare in accordance with law. The welfare benefits and retirement security of the labour force shall be protected by law".

I also agree with the respondent that there is no substance in this.

12. The applicant's reliance on Civil Service Regulation 1275 ("CSR 1275") is misconceived. That provision only sets out the maximum sick leave entitlement of a civil servant. Applications for sick leave would still have to be made in an appropriate manner and subject to the other regulations including CSR 1291.

13. His reliance on Cap. 487 is also misconceived. There is no evidence or ground for saying that the respondent refused to grant him sick leave because of any disability. Rather, the respondent considered that the applicant had abused the privilege of obtaining sick leave. In the light of the materials placed before me, I find that there was proper basis for the respondent to take that view.

14. The applicant argued that the respondent contravened Article 22 of the Hong Kong Bill of Rights (equality before and equal protection by law). There is no substance in this argument.

15. Lastly, I agree with the respondent that the reliance on humanitarian or other compassionate grounds is not a valid reason for giving leave to apply for judicial review in the context of this case.

16. For the above reasons, although the threshold for giving leave is low, I find that there is no proper basis for giving leave. This application is refused.

Representation:

Dr Tsoi Wing Sang in person and present

Mr Ho Chi Sum, SGC instructed by Department of Justice, for the Respondent

Application for judicial review by the applicant granted by Court of Appeal. Please refer to CACV1093/2000 dated 4 February 2002