Re Yeung Lam
Read the full judgment text of HCMP 135/1968 on BabelCite. This High Court CFI judgment was delivered on 18 September 1968.
(1) This was an application brought by a police officer for Orders of Certiorari and Mandamus to issue against the Commissioner of Police requiring and compelling him to revoke an Order made by the Deputy Commissioner, on the 10th of May 1968, reverting him from the rank of Staff-Sergeant Grade 2 to that of Police Constable. At the conclusion of the arguments before us we dismissed the application, but in view of the practical importance of the matters raised we intimated that we would give our
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HCMP000135/1968 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) MISCELLANEOUS PROCEEDINGS NO.135 OF 1968 -----------------
Coram: Rigby, Blair-Kerr and Morley-John, JJ. Date of Judgment: 18 September 1968 --------------------------------------------------- REASONS FOR JUDGMENT --------------------------------------------------- (1)This was an application brought by a police officer for Orders of Certiorari and Mandamus to issue against the Commissioner of Police requiring and compelling him to revoke an Order made by the Deputy Commissioner, on the 10th of May 1968, reverting him from the rank of Staff-Sergeant Grade 2 to that of Police Constable. At the conclusion of the arguments before us we dismissed the application, but in view of the practical importance of the matters raised we intimated that we would give our reasons for so doing at a later date. We now do so. (2)The circumstances leading up to the making of this application may be briefly stated. The Applicant joined the Hong Kong Police Force in January 1946. In 1952 he was promoted to the substantive rank of Sergeant. In 1965, thirteen years later, he was promoted to the rank of Staff-Sergeant and in the same year he was awarded the "Long Service and Good Conduct Medal". From May 1966 to January 1968 he was attached to the Traffic Office, Kowloon. On the 20th of January 1968 he was transferred to the Central Police Station, Hong Kong Island. On the 11th of April 1968 he was called to Police Headquarters and there interviewed by the Superintendent of Police, Personnel Department. He was informed that, as a result of investigations made, it was apparent that during his period of service in the Traffic Office, Kowloon, a number of police officers had been involved in corruption. Some of these officers - police constables - had been dismissed, and others - police sergeants - reduced to the rank of police constables. He was told that as he had failed to take any action or furnish the Commissioner of Police with any information, the Commissioner of Police was considering reducing him to the rank of police constable. He was asked if he was prepared to carry on in the Police Force if reduced to the rank of police constable or, alternatively, himself to terminate his service on payment of one month's salary to the Hong Kong Government in lieu of notice. He protested against this drastic ultimatum but said that he would carry on his job. He was instructed to return again on the 16th of April and he was told that he would be brought to see the Commissioner of Police to let him decide the matter. On the 16th of April he returned to Police Headquarters where he was again seen by the same Superintendent in charge of Personnel, who again asked him if he had considered the matter of himself terminating his service and paying one month's salary in lieu of notice or of staying on in the Police Force after being reduced to the rank of a police ...(illegible) He again protested against these proposals, but of the two alternatives put to him preferred that of staying on in the Police Force. At the same time he asked to see the Commissioner of Police. He was told to leave and informed that the decision to be made would be communicated to him. The following day he was recalled to Police Headquarters and there handed a "Memo" dated the 16th of April, signed by Mr. Wright-Nooth "per Commissioner of Police" informing him that "in exercise of the powers conferred by Section 14(4) of the Police Force Ordinance" he was reverted to the rank of police constable with effect from the 18th day of April 1968. It is pertinent to observe that his request for an interview with the Commissioner of Police had not been acceded to. The Applicant then consulted his solicitors who wrote to the Commissioner of Police expressing the view that the Order made was not a valid Order and that if it was not revoked within seven days proceedings would be instituted in the High Court for an Order of Mandamus or Certiorari. On the 10th of May, two further "Memos" were addressed to the Applicant, both of them dated the 10th of May and both signed by Mr. Wright-Nooth as Deputy Commissioner of police. In the first "Memo" the Applicant was told that the earlier "Memo" of the 18th of April reverting him to the rank of police constable was withdrawn and that he would be paid the difference in salary between the rank of police constable and staff-sergeant between the date of the original Order reverting him to the lower rank and up to, and including, the 10th of May. The next "Memo" informed him that, in exercise of the powers conferred upon him by Section 14(4) of the Police Force Ordinance he, Mr. Wright-Nooth, had reverted the Applicant to the rank of police constable with effect from the 11th of May 1968. It is unnecessary to speculate as to why the original Order was withdrawn. It is beyond doubt that under Section 5 of the Police Force Ordinance Mr. Wright-Nooth, in his capacity as a Deputy Commissioner of Police, had precisely the same powers under the Police Force Ordinance as the Commissioner of Police himself. It may well be that the fact that the original "Memo" was signed by Mr. Wright-Nooth "per Commissioner of Police" would pre-suppose that there had been an express power specifically delegated by the Commissioner of Police to make this particular Order and that that was not - or might not have been - in fact the true position, whereas if Mr. Wright-Nooth signed the Order himself as Deputy Commissioner he undoubtedly had authority himself to make that Order in his official capacity. (3)The circumstances leading up to the making of the final Order of the 10th of May 1968 were set out in the sworn affidavit of the Applicant in support of his application in these proceedings. No affidavit in answer has been filed on behalf of the Commissioner of Police. The Applicant's affidavit as to the facts, therefore, stands unchallenged and uncontradicted. Upon those facts it is manifest that by a stroke of the pen a police officer of twenty-two years service has been reduced from the rank of staff-sergeant to the rank of police constable without any specific formal allegation ever being made against him and without being given any opportunity whatsoever to be heard in his own defence. Such a course of conduct, whatever may have been the suspicions which motivated it, is, to my mind, clean contrary to the fundamental and accepted principles of natural justice that no man shall be punished until he has been given an opportunity to be heard in his own defence and meet the allegations, whether vague or specific, preferred against him. But, whatever one may think of the manner in which the Applicant has been punished - because punishment must surely be the right word - the crucial question with which this Court is concerned is whether the specific remedies sought of Certiorari and Mandamus are now available to him for the purpose of revoking and quashing the Order made by the Deputy Commissioner of Police reverting him to the rank of police constable.
It is at once to be observed that that is an absolute and unfettered power conferred upon the Commissioner of Police and it is not qualified or restricted by the imposition of any condition precedent as, for example, "if he" (the Commissioner) "is of the opinion that he" (the non-commissioned officer) "is negligent in the discharge of his duty or otherwise unfit to hold the rank in which he is serving." Mr. Mayne, counsel for the Applicant, conceded that upon the authorities it is clear and settled law that an order for certiorari would not lie to revoke an order or decision made unless that order was something in the nature of a judicial or quasi-judicial decision as distinct from a purely administrative or disciplinary decision (see Halsbury's Laws of England, 3rd edition, Vol.11, p.55 para.114 and, in particular, the cases of R. v. Metropolitan Police Commissioner(1) and Ex Parte Fry(2)).But Mr. Mayne contended that if somewhere along the line and prior to the actual making of that administrative or disciplinary decision there was something in the nature of a "lis" or enquiry then there was a duty imposed upon the person vested with the power to make a decision - even though it was a decision of an administrative or disciplinary nature - to act judicially and to observe the rules of natural justice. Some support for this argument is to be found in the observations of Parker J. (as he then was) in the case of R. v. Metropolitan Police Commissioner(1) as to what might have been the position in that case if the Police Commissioner had ordered an enquiry before revoking the licence of the cab driver. In fact, however, the court there came to the conclusion, first, that in revoking the licence the Commissioner was exercising an administrative and not a judicial or quasi-judicial function and, secondly, that his decision to revoke the licence was made before the sitting of any committee, the purpose of that committee being simply to hear any argument or representation made by the licensee as to why the decision already made should not be revoked. In the present case Mr. Mayne's argument, as I understand it, was that some investigation must have taken place in that that was the reason why the Applicant was informed by the Superintendent of Police, Personnel Department, of the intention of the Commissioner of Police. Mr. Mayne submitted that there having been some such investigation along the line, such investigation was in the nature of a "lis" conducted in the absence of the Applicant and that the Deputy Commissioner, in consequence of that so-called "lis", should have acted judicially in arriving at his decision and should have given an opportunity to the Applicant to be heard before making his decision. With respect, I can see no substance whatsoever in that argument. In my judgment there was nothing in the nature of a "lis"; nor can any investigation that may have taken place into the general allegations or rumours of corruption amongst the Kowloon Traffic Police be in any way approximated to a quasi-judicial enquiry. Furthermore, although it is no doubt a consideration irrelevant to the issue, I think it must be clear that at the time the Superintendent of Police, Personnel Department, first interviewed the Applicant on the 11th of April, the Deputy Commissioner had already made up his mind to revert the Applicant to the rank of police constable but, through the Superintendent, the Applicant was to be given an opportunity of resigning from the Police Force as an alternative measure. I do not think that the case of Ridge v. Baldwin(3)upon which Mr. Mayne relied to a large extent, is of any assistance to him. As Mr. Sheratte, Crown Counsel, who argued the case for the Commissioner most ably and succinctly, pointed out, that case is readily distinguishable from the present case in that the watch committee who dismissed the Chief Constable of Brighton had power to do so conditionally upon them thinking that he was "negligent in the discharge of his duty, or otherwise unfit for the same". The House of Lords held that irrespective of the severe strictures passed upon the Chief Constable by a High Court Judge in two different criminal cases - in both of which the Chief Constable had been charged, in the first case jointly with others and in the second case alone - before coming to any decision as to his negligence in the discharge of his duty and/or unfitness to hold that office, the Committee was bound to observe the principles of natural justice by informing the Chief Constable of the charges against him and giving him an opportunity to be heard, and their failure to do so rendered his dismissal null and void. It is relevant to observe that that was a case for a declaration that the dismissal was null and illegal, ultra vires and void and not, as in the present proceedings, an application for an order of certiorari and/or mandamus. But as I have earlier pointed out, that case is readily distinguishable in that the power of the watch committee to dismiss was qualified by the necessity for a prior finding by them that, in their opinion, the Chief Constable was "negligent in the discharge of his duty, or otherwise unfit for the same". No such qualification or restriction fetters the Commissioner (and the Deputy Commissioner exercising his powers under Section 5 of the Ordinance) under Section 14(4) in his absolute right to revert an N.C.O. in rank; nor is he required to give any reason why he has done so. (5)Towards the conclusion of his argument, Mr. Mayne, I think, relied far more upon his alternative application for an Order of Mandamus, rather than Certiorari, to issue. Mandamus, as is well-known, is a prerogative order issued out of the High Court to compel a public officer or public authority to carry out the obligations or duties which he, or it, is required by statute to perform. Part III of the Police Force Ordinance deals with the Discipline and Duties applicable to police officers and Section 31(1) therein specifically sets out in detail the various offences for which an N.C.O. or constable can be tried and punished by "an appropriate tribunal". Neglect of duty is one of those offences, and one of the punishments that may be imposed is "reduction in rank or class". Furthermore, in lieu of, or in addition to, any of the prescribed punishments, the Commissioner himself can order the N.C.O. or constable found guilty to be dismissed from the Police Force but, in the event of an N.C.O. he "shall be reduced to the ranks before dismissal". Mr. Sheratte himself conceded that Section 14(4) was not intended or designed as a punitive section but that the whole purpose of the section was what he described as a "structural section" designed to give the fullest power to the Commissioner of Police, in the interests of the Police Force, to appoint, promote, or revert in rank any officer of the rank of police inspector or lower in rank. For myself, I agree with Mr. Sheratte that that was the purpose for which this section was intended. It was not intended to be used as a punitive measure. There can be no doubt in this case that upon the uncontroverted facts before the Court it was so used as a punitive measure. One therefore gets this remarkable position: that when there is evidence to support a specific charge against an N.C.O. or constable upon any one or more of the various offences set out in Section 31 he can be charged under that section; in which case he will be informed, in writing, of the specific charge, and that charge will be heard by "an appropriate tribunal" and, of course, the person so charged will have the fullest opportunity to be heard and to put forward his defence to the charge. But where, on the other hand, there are only vague and unspecified rumours against an N.C.O., or the evidence is considered too weak or unreliable to support the charge or, for any other reason, it is not considered desirable to prefer a specific charge, action can be taken against the N.C.O. under Section 14(4) and, without any opportunity whatsoever to be heard in his own defence, he can be summarily and peremptorily reduced to the ranks after years of service. It seems to me that one has only to state the proposition to show its manifest injustice and that to make use of that sub-section for a punitive purpose is a plain abuse or mis-use of the section. Mr. Sheratte cogently argued that there may be instances where an N.C.O., either by reason of his own personality - or lack of it - or by reason of an act on his part, or by his conduct over a period of time, has lost the confidence of his superiors, or the respect of those inferior to him in rank, and, for that reason, it is in the interests of the Police Force as a whole that he should be reduced in rank. I think there is much to support that argument. But whether the power conferred in Section 14(4) is being used in the sense and for the purpose indicated by Mr. Sheratte, or whether it is being used as a purely punitive measure to punish an N.C.O. for a specific offence or offences, or for general dereliction of duty, must, in each case, be a question of fact. I can envisage instances in which the two different aspects might well overlap. But I would venture to express the view that, in any event, before the section is resorted to and the N.C.O. reverted in rank, he should be told of the conduct or mis-conduct complained of and given an opportunity to be heard in answer to the complaint or complaints made against him. (6)In his argument in support of mandamus, Mr. Mayne contended that where the legislature, as in this case, expressly provided a procedure whereby police officers charged - or chargeable - with a disciplinary offence - in this instance neglect of duty - action should be taken under the procedure expressly provided - in which case the police officer charged would be entitled to be heard in his own defence. He submitted that it was an abuse of his powers for the Commissioner - in this case the Deputy Commissioner - to make use of some other section, never intended for the purpose, arbitrarily and peremptorily to impose punishment upon an N.C.O. in such a way that, by the very fact of using that section, the N.C.O. was deprived of the right to be heard in his own defence - which right he would have had if he had been proceeded against under the section expressly provided for the purpose of dealing with disciplinary offences. Mr. Mayne, as I understood his argument, contended that in such circumstances an order of mandamus would issue to compel the Commissioner of Police to revoke the Order made - and, it is said, wrongfully made - by him (and by him I do of course, mean the order made by the Deputy Commissioner), reverting the Applicant to the rank of police constable. As an argument based on the elementary principles of common fairness and natural justice, I find myself in agreement with Mr. Mayne. But as an argument in law to warrant and justify this Court issuing an order for mandamus against the Commissioner of Police, I am satisfied that it is bad in law. Reading Section 14(4) as it stands, it is abundantly clear that it confers an absolute and unqualified power upon the Commissioner of Police (or, if exercised by him, the Deputy Commissioner of Police) to revert an N.C.O. in rank. On the face of it, it is a clear unfettered administrative power, as distinct from a judicial power, vested in the Commissioner of Police. As Mr. Sheratte said, and I agree, one must not look at the way in which the power has been exercised to see whether it is an administrative power, as distinct from a judicial or quasi-judicial power, but one must look at the power itself. There is no doubt whatsoever in my mind that the power so conferred by Section 14(4) was, and is, an administrative power. That being so, even though it may have been improperly exercised, this Court has no jurisdiction to interfere by way of certiorari. In the case of Ex Parte Fry(2), Lord Goddard C.J. said:
For the reasons which I have indicated I was, and am, satisfied that there were no valid legal grounds upon which this court could cause a writ of mandamus to issue against the Commissioner of Police to compel him to revoke the Order made by the Deputy Commissioner on the 11th of May. (7)It is to be observed that Section 14(4) provides that an N.C.O. "may be reverted in rank by the Commissioner". Section 31 - the punishment section - provides for "reduction in rank or class". In various other sections, both in the Ordinance and in the Police (Discipline) Regulations, the expressions "reversion" and "reduction" in rank are indiscriminately used. Mr. Mayne addressed an interesting argument to this Court that the expression "revert in rank" used in Section 14(4) only enabled the Commissioner to revert the Applicant to the rank he had held immediately preceding his substantive appointment as a staff-sergeant, and not to reduce him in rank to that of a police constable. In view of the conclusion I have reached that Section 14(4) is a purely administrative power conferred upon the Commissioner of Police, and that whatever mis-use or abuse of that power there may, or may not, have been made, this Court has no jurisdiction to interfere, either by way of certiorari or mandamus, it becomes unnecessary, and perhaps undesirable, to consider and determine Mr. Mayne's argument as to the proper meaning to be attributed to the words "revert in rank". (8)It was for the above reasons that I was, and am, fully satisfied that whatever other remedy as for example an action for a declaratory judgment might be open to the Applicant, the remedies of certiorari and mandamus were not open to him for the purpose of these proceedings and that his application ought accordingly to be dismissed. Representation: Mayne, Q.C. & Donnelly (Hastings & Co.) for Applicant. Sheratte, C.C. for Crown/Respondent. (1) (1953) 2 ALL E.R. 717 (2) (1954) 2 ALL E.R. 118 (3) (1964) A.C.40 (2) (1954) 2 ALL E.R.118 at 119-120 (4) (1924) 1 K.B. 171 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) MISCELLANEOUS PROCEEDINGS NO. 135 OF 1968 -----------------
Coram: Rigby, Blair-Kerr & Morley-John, JJ. in Full Court. Date of Judgment: 18th September, 1968. ----------------- JUDGMENT ----------------- Blair-Kerr J. :
It was conceded by Mr. Mayne that police officers hold office during pleasure; and there seems to be no doubt at all that this is the correct view. The prerogative rights of the Crown in this regard are preserved by s.38 of the Police Force Ordinance which reads:-
Mr. Mayne conceded that if the applicant had been dismissed, he would have found it very difficult to argue that certiorari lay to quash the order of dismissal, despite the fact that the provisions of s.15(2) of the Ordinance had not been complied with. However, Mr. Mayne argued that although the power to revert in rank conferred by s.14(4) is apparently unfettered, this is not in fact so; and in these proceedings the applicant sought an order of certiorari to quash the order of the Commissioner dated the 10th May, 1968 on the grounds:
As I understood Mr. Mayne's argument on the first limb of this application, it was this: that although, on the face of it, s.14(4) gives the Commissioner of Police apparently unfettered discretion to revert a non-commissioned officer, the intention of the Legislature was that the powers conferred by the sub-section should be used administratively only in cases where the N.C.O. has shown that he does not have the qualities which an N.C.O. should have (for example, powers of leadership); that s.14(4) must be read in conjunction with s.31 and the Police (Discipline) Regulations; that whenever the Commissioner has reason to believe that an N.C.O. may have committed a disciplinary offence, he is obliged to set in motion the procedure prescribed by the regulations so that the appropriate tribunal may determine whether the N.C.O. is guilty or not guilty of such disciplinary offence; and that the Court may not punish the N.C.O. in such circumstances by invoking s.14(4). The word 'punish' is sometimes used very loosely to mean a variety of things other than the imposition of a sentence following upon conviction for an offence. When an N.C.O. is reverted in rank, presumably he loses the same amount of money in pay and pension rights as if he were reduced in rank after conviction in respect of an offence under s.31; and, I suppose, it is natural that he should regard reversion as a punishment even if the reason for such reversion is the fact that he is temperamentally unsuited to hold down the job of an N.C.O. in the Hong Kong Police Force. However, I am not persuaded that the words revert and reduce have been used indiscriminately throughout the Ordinance and the Regulations. Prima facie, we must presume that the Legislature intended some difference in meaning between the two words. "Reduction in rank" is one of the punishments prescribed by s.31. Under s.45 power is given to make regulations providing for "appointments ........ resignations, discharges, dismissals, reductions and reversions". Police General Order 262 reads:-
As reduction in rank is a sentence which may be passed by an appropriate tribunal consequent upon an N.C.O.'s conviction for some offence, it would appear that the Legislature deliberately used the word revert in s.14(4) to avoid any suggestion of stigma such as is normally associated with a conviction of any kind. However, assuming, for the purpose of these proceedings, that we do equate the words revert and reduce, Mr. Mayne was really asking this court to read into s.14(4) words which are not there so that the sub-section would read something like this:-
It is sufficient to say that the sub-section was not ...(illegible) It is very different from, say, s.191(4) of the Municipal Corporations Act 1882, the section under which the watch committee acted in dismissing the Chief Constable of Brighton in 1958 (Ridge v. Baldwin(1)). Section 191(4), so far as relevant, reads:-
The watch committee dismissed Mr. Ridge because they thought that he had been negligent in the discharge of his duty; but in reaching this conclusion it would appear that they acted entirely on a second-hand report of certain observations made by Donovan J. after Mr. Ridge's acquittal in respect of certain oriminal charges. The House of Lords considered that this was a case where "there must be something against a man to warrant his dismissal"; and despite the "subjective" nature of the language of s.191(4), their Lordships felt that the court should view objectively the manner in which the issue of negligence had been resolved. They considered that the watch committee should have resolved the issue of negligence for themselves; and that this was a condition precedent to the exercise of the power of dismissal. Obviously, such an issue should not have been resolved otherwise than quasi-judicially; and the House of Lords therefore made a declaration that the order of dismissal was null and void because the principles of natural justice had not been observed in that the appellant had not been given an opportunity of being heard. Section 14(4) of the Police Force Ordinance reads:-
The Commissioner's discretion is not fettered in any way. The sub-section does not say that the Commissioner must be "satisfied" of anything; it does not say that he must have "reasonable cause to believe" that an N.C.O. has been guilty of neglect of duty before reversion in rank is ordered. ----------------------------------------- And if this court were to read into the sub-section limitations on the powers of the Commissioner or conditions precedent to the exercise of those powers, we would be acting contrary to the ordinary canons of statutory interpretation. As Lord Hodson said in Ridge v. Baldwin(1) (p.112):-
By anology, if a statute gives an unfettered power to revert in rank without more, that is an end of the matter. The second limb of the application for certiorari seems to suggest that an administrative power may change its character because of the manner in which it is exercised. Mr. Mayne argued that even if the order of the 10th May was an administrative order, at some time prior to that date the Commissioner, or someone on his behalf, must have investigated reports concerning corruption in the Kowloon Traffic Office; that there must have been some sort of inquiry by the Commissioner as to whether the applicant should be reverted; that the moment the Commissioner embarked upon such an inquiry there was something in the nature of a lis which required him to give the applicant an opportunity of being heard before the decision to revert was arrived at; and that his failure to give the applicant such an opportunity invalidated the subsequent administrative order. I agree with the learned President that there is nothing in the evidence before us which could suggest that there ever was anything in the nature of a 'lis'. I also agree with Mr. Sherrate's submission that a court should not look at the manner in which a power has been exercised in any particular case to determine whether the power conferred by a statute is an administrative power or a judicial or quasi-judicial power. If a power may be exercised administratively, its character does not change because the person wielding the power chooses to act judicially in any particular case. If the power is an administrative power, it is so for all purposes and on all occasions. Similarly, if the power may not be exercised otherwise than quasi-judicially, then this is so for all purposes and on all occasions. A Commissioner of Police commanding, as he does, a large disciplined force should have a wide measure of unfettered discretion as regards appointments, promotions and reversions; and clearly, the Legislature intended that the Commissioner should have such unfettered discretion. How could he administer such a force if his powers of promotion had to be exercised "judicially"? In the matter of reversions, as Mr. Sheratte said, an N.C.O. may be very efficient, but, for one reason or another, he may have forfeited the trust imposed in him by his superiors and the trust and respect of his subordinates. The information before the Commissioner may, or may not, be such as would justify him preferring charges under s.31; but if for any reason it is not possible to do so (either because of the paucity of the evidence or because of its nature - Mr. Sheratte cited the example of a case in which matters of security were involved) it may nevertheless be a matter of paramount importance to the public and to the morale of the Force that the N.C.O. should not be allowed to remain in any position of authority. It seems to me that in cases in which dismissal may be too drastic a remedy for an officer with an otherwise unblemished record, the Commissioner should have the power to revert an N.C.O. in a wide variety of circumstances in the interests of the public and in the interests of the Force; and that this is a power which, of necessity, must be exercised administratively. I wish to make it perfectly clear that these remarks are not intended to be, and should not be construed as, a reflection upon the applicant. There isn't a scrap of evidence before this court that he was corrupt. There appears to have been an allegation of negligence; but the issue of negligence has not been resolved by any court; and it is not for this court to say whether the allegation was or was not justified. On the hearing of the motion, the problem was to decide what was the nature of the power conferred upon the Commissioner by s.14(4); and I entirely agree that the sub-section has conferred upon the Commissioner an administrative power, and that certiorari does not lie to review his decision to revert the applicant to the rank of constable. I do not think that our decision as regards the application for certiorari came as a surprise to Mr. Mayne. The main emphasis of his submission appeared to be designed to persuade the court that, even if certiorari did not lie, it was open in the circumstances of this case to make an order of mandamus. What the applicant was asking the court to do by way of mandamus, was to order the Commissioner to revoke his order of 10th May. He sought:-
In support of this application Mr. Mayne relied on certain dicta in the judgments of the Court of Appeal in Re K(H) (an infant)(2). That was an application for habeas corpus and certiorari to quash a decision of the immigration officer at London Airport under s.2(1) of the Commonwealth Immigrants Act 1962. The immigration officer had refused to admit to the United Kingdom the son of a Commonwealth citizen who was resident in the United Kingdom on the ground that he had reasonable cause to believe that the applicant for admission was under 16 years of age. Subsequently, certain information came to his knowledge which indicated that the applicant for admission was under 16 years of age; and it was conceded before the Court of Appeal that if this information had been given to the immigration officer in the first place, he would have been under a duty to admit the applicant. Under paragraph 1 of the First Schedule to the Act, an immigration officer may examine any applicant for admission; and paragraphs 2(3) and 2(4) of that Schedule read:-
In other words if further information comes to hand which clearly shows that an applicant should be admitted into the United Kingdom, the immigration officer is empowered to cancel his original notice refusing admission and he may issue a fresh notice. It may well be that under certain circumstances mandamus would lie to compel an immigration officer to cancel or revoke his original notice. Be that as it may, in my view Re K (H) an infant(2) does not support the applicant's contention that it is open to this Court by way of mandamus to order the Commissioner of Police to revoke his order under s.14(4) of the Police Force Ordinance. Mandamus is an order which commands any person to whom it is directed to carry out a public duty imposed by law. There is nothing in the Police Force Ordinance, or as a matter of law apart from that Ordinance, which could justify this Court using mandamus for the purpose suggested. Really, in this case the application for mandamus was nothing more than a further application for certiorari in disguise, that is to say certiorari to quash the order of the 10th May; and we have held, as we must, that certiorari does not lie to quash the exercise of a purely administrative power. For the above reasons I concurred in the decision that the applications for both certiorari and mandamus should be dismissed. Before leaving this case, I think I ought to say that I do not feel able to associate myself with the criticism of the Commissioner of Police which has been voiced during these proceedings. Admittedly, he has filed no affidavit (he was under no obligation to do so) and for the purpose of these proceedings the facts alleged by the applicant have not been challenged. On the other hand, Mr. Sheratte made his position perfectly clear; he said in effect:-
Throughout the hearing of the motion, there were a number of references to the possibility of further proceedings being taken by the applicant. If he should institute an action for, say, a declaration of some sort, it may be that the facts would have to be gone into; and I prefer to express no view at all at this stage as to the propriety or otherwise of the Commissioner's action in reverting the applicant to the rank of constable.
Representation: D O'R Mayne, Q.C. & J.D.M. Donnelly (Hastings & Co.) for the Applicant. I. V. Sheratte, c.c., for the Respondent (1) (1963) 2AER66. (1) (1963) 2 A.E.R. 66. (2) (1967) 1 A.E.R. 226. IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) MISCELLANEOUS PROCEEDINGS NO. 135 OF 1968 -----------------
----------------- Coram: Morley-John, J. Date of Judgment: 18th September, 1968. ----------------- JUDGMENT ----------------- I agree. I also am satisfied that the power conferred on the Commissioner of Police by s.14(4) of the Police Force Ordinance is purely an administrative power. Looking at that power itself, and not in the way that it has been suggested to us that it might have been exercised, it is clear that it is simply of an administrative nature and that that sub-section gives to the Commissioner of Police a power to revert any non-commissioned officer in the Force in rank unfettered by any limitations or conditions precedent to the exercise of that power. Reference has already been made to the words of Lord Hodson in Ridge v. Baldwin at page 112(1) when he said that if a statute gives an unfettered power to dismiss at pleasure without more, that is the end of the matter. In the case before us the Police Force Ordinance has given to the Commissioner of Police an unfettered power to revert in rank and throughout these proceedings no authority has been quoted to us except the words of Lord Hodson which deal in point with such an unfettered power. The cases on the question of the exercise of powers that have been quoted to us have without exception dealt with a power which has been subject to limitations or conditions precedent to the exercise of that power. Mr. Mayne himself submitted that the Commissioner of Police has no power to try a man for a disciplinary offence and that only a properly constituted tribunal could do this and again I am satisfied that there was no question of any judicial or quasi-judicial action on the part of the Commissioner of Police, his was an administrative act. I therefore agree that an order for certiorari could not lie in this case. Also, in this case, there is no statutory obligation on the part of the Commissioner of Police in the exercise of his administrative power granted to him under s.14(4) and for this reason and those put forward by my learned brethren I agree that mandamus does not lie and I therefore concur in the decision that the applications for orders of both certiorari and mandamus should be dismissed. As to the reason why the Commissioner of Police exercised his power under section 14(4) as he did, we have only been asked to draw certain inferences from the affirmation of the applicant in which he said what Superintendent Jackson said to him on the 11th April, 1968 in that the Commissioner of Police was at that time considering reducing him to the rank of Police Constable. It is perhaps unfortunate that we have not heard the Commissioner's side of the story, however, Mr. Sheratte at the very opening of this case did inform the Court that his arguments would be directed merely to the fact that the orders asked for were not available to the applicant and that he would in no way be dealing with the merits of this case. Mr. Sherrate was perfectly entitled to take this line and I wish to stress that I have absolutely no criticism of the way he very ably handled this case. That being so, with no evidence on the part of the Commissioner of Police, I feel that I cannot draw the various inferences that I have been asked so to do from the applicant's affidavit as to why the Commissioner of Police exercised his powers as he did.
18th September, 1968. (1) 1963 (2) All E.R. 66 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||