Willim Henry Cowie v. Attorney General

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION No.336 of 1947

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Coram: Mr. Justice T. J. Gould.

Date of Judgment: 2 September 1948.

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JUDGMENT

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1. The plaintiff was employed by the Government of Hong Kong as a Sub-Inspector of police under an agreement dated the 21st day of December, 1946, which contained (inter alia) a provision that he would obey the provisions of the Police Force Ordinance, 1932 and any Ordinance amending or substituted for the same and all rules, regulations and orders made thereunder. There was a further provision without prejudice to statutory powers that the Government might dismiss him if he should in any manner misconduct himself. In the year 1947 the plaintiff's conduct being in question, a Board of Enquiry was appointed under disciplinary regulations made pursuant to Section 12 of the Police Force Ordinance, 1932. A charge was preferred before the Board and the finding of the Board was duly forwarded to the Commissioner of Police and by him to His Excellency the Governor. On the 27th day of August, 1947, in view of that finding the plaintiff was dismissed under Section 16 of the Police Force Ordinance, 1932. He has brought the present action for damages for wrongful dismissal naming the Attorney General as defendant pursuant to Section 479(1) of the Code of Civil Procedure.

2. Paragraph 7 of the Statement of Claim is as follows:-

3. Paragraph 4 of the Statement of Defence (as amended) is as follows:-

The point of law raised by Paragraph 4 of the Statement of Defence was set down for argument before trial on the basis for the purpose of the argument that the proceedings of the Board of Enquiry were regularly conducted in accordance with the regulations. I will not set out the latter in extenso but they contain provision for

It is then provided that "The Commissioner will either make his award or forward the proceedings with his recommendation to the Governor through the Colonial Secretary." The short question argued before me is whether the finding of the Board was the finding of a quasi judicial tribunal sufficient to estop the plaintiff from now saying that he was not guilty of conduct calculated to bring the public service into disrepute. The charge as framed is, to say the least, peculiar - "... conduct calculated to bring the public service into disrepute by whilst on duty receiving $50.00 from Chan Yu Tong, a person with whom he had come into contact in the course of his duty ..." If the $50.00 was, for example, the return of a loan made by the plaintiff to Chan Yu Tong, its acceptance while on duty could not be said to be calculated to bring the public service into disrepute. I think however that the charge proper must be deemed to be "conduct caloulated to bring the public service into disrepute" and that the remaining words were designed to bring to the plaintiff's mind the incident to be relied upon so as to prevent surprise. It is a necessary implication of the finding as a whole that the circumstances of the receipt of the $50.00 were held by the Board to be such as would bring the public service into disrepute. The plaintiff in this action has now in his statement of claim pleaded that he was not guilty of conduct calculated to bring the public service into disrepute and the defendant has pleaded the opposite. That question is therefore in issue and the defendant claims that it is res judicata.

4. The essentials of a valid plea of res judicata are set out in Spencer Bower on Res Judicata at page 9. They are as follows:-

5. Of these (ii) is admitted by Para. 7 of the Statement of Claim and it is agreed that the Board's finding was sent to the Plaintiff with the letter of dismissal. That the Board had jurisdiction to make its decision has not been disputed. It was constituted under Regulations having the force of law for the purpose of just such enquiry as was held; the plaintiff was subject to the Regulations from his very position as a Sub-Inspector of the Police Force and by his contract. Counsel did argue that the Board had no jurisdiction to reach a final judgment but that is another matter. The last point, identity of parties, although argued by counsel for the plaintiff is in my opinion perfectly clear. The plaintiff was a party in each case and the opposite party in each case was the Crown. The interest of the Crown in the proceedings against the plaintiff was that of his employer and it is in the capacity of an employer that the Crown, as alleged in the present proceedings, has committed a wrongful act. The Crown must essentially act through agents in all matters and it is not material that those agents differ in the two proceedings. The question of finality (No.iv above) can also be disposed of briefly. The Board considered the whole of the matter referred to it and gave a decision which was not in any way conditional or temporary - it was complete and certain and in no way subject to rescission review or modification by the Board. It was the decision of the matter in question before the Board and was in form to be acted upon. Finality from the point of view that the Board had no power itself to act upon it and that the action to be taken by others was discretionary goes more to the question of whether the decision was judicial in law and I will deal with it under that head. The questions remaining for discussion therefore are Nos. (i) and (v) above and I will take them in order.

6. In deciding whether the decision before the Court is deemed in law judicial so as to support a plea of res judicata, it is necessary to have regard firstly to the nature of the tribunal which pronounced it and secondly to the nature of the decision itself. Both must be judicial if the plea is to succeed. Judicial tribunals are not limited to what are usually called Courts, whether of record or not, but include all persons or bodies who exercise judicial functions by proper authority, permanently or in particular cases; the authority is most frequently derived from statute, but custom, common law, charter or any other source recognised by law will suffice. Spencer Bower in his work on Res Judicata does not attempt definition of "judicial tribunal" or of "judicial functions" but contents himself with a classification and enumeration ranging from the very highest courts, the High Court of Parliament and the House of Lords to the "domestic forum" the arbitrator or other person drawing authority from a Court order, statutory provision or consent of parties. He states (at page 17) that there are extremely few cases where an English civil authority has been held not to be a judicial tribunal. The essential requirements which appear from a perusal of the decided cases are that the tribunal must be invested with authority to exercise the right or duty of deciding a question which touches or involves the rights or status of persons or classes of persons. In its proceedings it must adhere to any directions of an authorising statute and to the extent that no procedure is laid down must adhere to the principles of natural justice.

7. The tribunal at present under consideration derives its authority from Regulations made under the Police Force Ordinance, 1932, which have the force of law. They authorise the appointment of the Board, after a prima facie case of breach of discipline has been found by the Commissioner, "to hold and conduct a disciplinary enquiry"; it is empowered to read charges to a defendant and to take his plea thereto, to hear the prosecution and defence and to record its findings on the charges. It has no connection with the penalty but forwards its findings to the Commissioner. Counsel for the plaintiff has not attempted to distinguish between a breach of discipline and misconduct (which are separately referred to in Sections 15 & 16 of the Police Force Ordinance, 1932, dealing with punishments and dismissal) and takes no objection to the jurisdiction of the Tribunal to decide the matter which was before it. There seems no doubt therefore that the Board was a judicial tribunal: it was duly authorised by law to decide a question arising inter partes and to make a finding thereon. It was required to proceed in a judicial manner giving full right of being heard and of cross-examination to each side. There is ample authority for saying that the absence of power to administer on oath is immaterial e.g. Leeson v. General Medical Council 43 Ch.D. 366.

8. The next point for consideration is whether the finding of the Board was a judicial decision, which is defined by Spencer Bower at page 17 for the purposes of estoppel as "a decision or determination or adjudication of some question of law or fact, whether such decision takes the form of an express judicial declaration or is necessarily involved in the command or prohibition which constitutes the judicial act in its coercive or operative aspect." The finding of the Board would appear at first glance to fall naturally enough into the first part of this definition. It is an express judicial declaration adjudicating upon a question of fact, or possibly mixed fact and law. It is however challenged as a judicial decision on the ground that it is only a verdict not followed by judgment; a mere report for the information of the Commissioner of Police. This is the question argued by counsel as a matter of finality. It is true that the only function of the Board is to hold something in the nature of a trial of a person against whom a disciplinary charge has been made and to return a finding on that charge. The object of the proceeding in the case of a sub-inspector can be nothing but to determine his guilt or otherwise of a breach of discipline as a preliminary to inflicting a penalty. That might be inflicted by the Commissioner under section 15 of the Police Force Ordinance, 1932 and the option given by the Regulations to the Commissioner of forwarding the proceedings with his recommendations to the Governor, indicates the intention that the procedure is to be used as a preliminary to dismissal under section 16 which unlike the two preceding sections relates to inspectors as well as sub-inspectors. I can discover no other purpose in the Ordinance which would be served by sending these papers and recommendations to the Governor, and therefore reading the Ordinance and Regulations together, it is clear that this is the prescribed procedure in case of dismissal of officers of that rank. The estoppel claimed, however, extends only to the finding of the Board and not to the decision of the Governor.

9. Of the cases cited by counsel for the plaintiff in this connection, that of O'Connor v. Malone 7 E.R. 814 is authority for saying that on a new trial of an issue the previous verdict cannot be given in evidence even though it is not set aside. At page 823 of the judgment of the Lord Chancellor, it is stated "It is a well-known rule of law that a verdict without a judgment is no evidence at all; the reason being that there is nothing to show that such verdict may not have been set aside, or may not have been acted on by the Court." That is not the case here. I do not agree with counsel for the plaintiff that the Commissioner could refuse to act upon the finding of the Board. He had a discretion as to his action but he must exercise it on the finding; the wording of the regulation is mandatory; he "will" make his award or take the alternative course prescribed. R. v. Inhabitants of Wandsworth 106 E. R. 23 seems to me to have turned on the recording or entering up of the decision in favour of one party or the other as distinct from the passing of a sentence. Counsel likened the Board to a Coroner's enquiry the verdict of which cannot form the basis of a res judicata plea. The latter however is in a special position - though no person is charged before it with an offence, nevertheless it may bring in a verdict against a person who has not even been heard. Its decision is in no way conclusive. Further cases similar to those quoted are set out in Spencer Bower at page 19 Note and the learned author then appends the note "In such cases, the verdict is no more operative as a decision, then if a judge were to announce that he had found certain facts, and were to reserve his judgment on the legal result of the facts so found for further consideration and argument." I think there lies the distinction-the Court in such a case has not completed its function; the final decision is still uncertain, and by "final decision" I mean the decision of the question in issue before the Court as distinct from sentence. The Board has fulfilled all functions entrusted to it by law - the question it had to decide was decided in full and irrevocably. Although designed to determine a question affecting civil rights, the proceedings of the Board were more closely analagous to criminal proceedings - a charge was preferred and guilt decided. It is therefore interesting to note that a valid plea of autrefois convict may be made although no sentence has been pronounced. R. v. Sheridan 1937 1 K. B. 223. That case was distinguished from R. v. Hertford/shire Justices (1911) 1 K. B. 612 on the ground that in the letter there was no adjudication by the justices. It is the adjudication which is the basis of the estoppel in autrefois acquit or convict and in the present case the adjudication was complete - all that remained was for sentence to be passed.

10. Another aspect of the matter of finality as argued by counsel for the plaintiff is said to appear from an examination of those cases concerned with dismissal of various officials by domestic forums and removal of names from the Medical register by the General Medical Council. - Examples are Davy v. Haddon 99 E.R. 669, Hayman v. Rugby School 18 L.R. Eq. 28, R. v. Grundon 98 E.R. at 1106 and Hill v. Clifford 1907 2 Ch. 236. It is submitted that the tribunals in these cases, which incidently are relied upon by the Crown as supporting its case, have what counsel calls "the essence of finality" in their authorising charters or enactments; in other words they themselves are authorised to dismiss. I confess that I am unable to see how that differs in principle from referring to a tribunal the task of deciding judicially whether the requisite misconduct has occurred but leaving to the Crown the discretion as to whether the penalty of dismissal shall in fact be exacted. It is true that in some cases, such as the General Medical Council cases, the enactment expressly states that the tribunal's finding shall be final and conclusive. I do not conceive that this is vital, as there are many cases in which the enacting words only create a jurisdiction to decide a certain question without more. Once the judicial decision is made in exercise of that jurisdiction, it can be relied upon as res judicata in any other court or tribunal. For example, in the case of Spackman v. Blumstead Board of Works 10 A.C. 229 the House of Lords held that the mere words "such general line of buildings to be decided by the superintending architect to the Metropolitan Board of Works for the time being" conferred on that gentleman, notwithstanding that he was an employee of a public body having a connection with the matter, a jurisdiction which he must exercise judicially, and the exercise of which would be a bar to further consideration of the matter in a Court.

11. Another submission by counsel is that the proceedings of the Board were no more than an enquiry for the information of the Crown and could not result in a judicial decision. In Fraeis, Times & Co. v. Carr 82 L.T. at p.702 Williams L.J. said: "Thus far there is nothing to indicate that the enquiry is to be a judicial proceeding for the purpose of determining the disposition of, or the title to the goods in question. The Court might well be a Court to report to the Sultan or his Government." Dickson v. Combermere 3 F & F 527 was also relied upon as an instance of an enquiry which was followed by the dismissal of a military officer, but which was not a judicial enquiry. But in the former case, the Court went on to consider whether the Court set up by the Sultan had in fact made a decision which was a judgment in rem irrespective of whether or not it was designed to inform the Sultan. In the latter, the Board was not set up to inquire into the conduct of the person subsequently dismissed, and moreover it was held that a judicial enquiry was unnecessary where dismissal was discretionary. It is a question of the nature of the enquiry in each case, and particularly where the enactment relied upon as giving power to dismiss gives that power only (inter alia) for some breach of discipline or misconduct, is it expedient to base dismissal upon a judicial enquiry.

12. I am unable, on my reading of the authorities, to come to any view other than that the Board was a judicial tribunal and made a judicial decision.

13. The remaining question now to be decided is whether "the judicial decision was, or involved, a determination of the same question as that sought to be controverted in the litigation in which the estoppel is raised." Looking at the decision of the Board and the present question between the parties, I am bound to say that the former did not necessarily decide the whole question now in issue, unless the power of dismissal given by section 16 of the Police Force Ordinance, 1932, is to be construed as empowering dismissal for any misconduct however trivial or slight. That of course may be so but it remains to be decided additionally to the question decided by the Board and is therefore another issue. The Board's decision was that plaintiff was guilty of conduct of a certain kind; it is plain that it did not decide that it was conduct meriting dismissal, for that question was the province of the Commissioner and or the Governor and a lesser penalty might have been inflicted. It seems to me therefore that the pleadings raise two issues - firstly whether the plaintiff was guilty of conduct calculated to bring the public service into disrepute etc. and secondly whether, if so, that is conduct meriting dismissal. The Crown has not relied upon its special position as such and the matter is therefore governed by the Police Force Ordinance, 1932, and the contract. The construction of these documents may dispose of the second issue in toto or may leave a question of degree of misconduct to the Court.  In any event, the present position is that one only of the issues now before the Court was decided by the Board. The question is whether the plaintiff is estopped on that issue.

14. On principle it would appear that he is. In Outram v. Morewood 3 East 346 it is held (at page 355) that

The question so answered is expressed at page 358 as follows:-

This case is referred to in Hailsham Vol. XIII p.409 as an example of an "estoppel" where "a plea of res judicata could never be established." Spencer Bower quoting the same case does not draw this distinction which is not material as it arises out of the different systems of nomenclature adopted. In Jones v. Lewis 1919 1 K.B. at p.345 Bankes L.J. said:-

Hailsham Vol. 13 at p.444 indicates that material facts alleged and admitted in pleadings, and facts decided in an issue, cannot be litigated again between the same parties. I consider that the principle is clear but have cited these authorities in view of the headnote in Moss v. Anglo-Egyption Navigation Co. 1 Ch. Appeals 108 which reads (in part) - "Demurrer will not lie to a bill on the ground of res judicata, unless it avers that everything in controversy as the foundation of relief was also in controversy in the former suit." At first sight, this indicates  a contrary view but an examination of the judgment together with the cases cited with this as authority for the same proposition in Hailsham Vol. 13 p.409 makes it plain that nothing more is decided or intended than that where relief is claimed in one suit which is dismissed, and similar relief is claimed in a second suit there is no res judicata if the matter relied upon in the second suit was not (and should not have been) urged in the first suit.

15. On this question of identity of subject matter the plaintiff relies also on the case of Hindley v. Haslam 3 Q.B.D. 481. In that case, though a workman had previously won an action against his employer for wrongful dismissal, it was held that the employer was not precluded from recovering damages from the workman for negligently damaging materials. The basis of the decision is obvious - the first judgment was not to the effect that there had been no negligence at all but that there was insufficient to justify summary dismissal. That did not preclude the employer from setting up the lower degree of negligence required to succeed in the second action for that had never been in issue. The present case is rather the opposite. Certain misconduct was established in the first action: the fact that it is still in issue whether that misconduct was sufficient to justify dismissal does not deprive the defendant of the benefit of what has already been litigated

16. The point of law before me is whether the plaintiff ought to be admitted to say that he was not guilty of misconduct as set out in para. 7 of the Statement of Claim and on my view of the law I hold that he is estopped from so saying.