Mohamed Yaque Khan v. Attorney General

HCA000329B/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Mantell, J. in Chambers.

Dates of hearing: 16th and 17th July, 1985

Date of delivery of Judgment: 17th July, 1985.

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JUDGMENT

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1. This application arises out of a pending action in which the Plaintiff seeks relief for what is alleged to have been his wrongful dismissal from a post as a senior police officer in Hong Kong. The application which is made by the Attorney-General is that the evidence of a Mr. Lewis Mervyn Davies should be admitted as is provided for under R.S.C. Order 38 in the form of an affidavit on the ground that Mr. Davies is now beyond the seas. The Attorney-General concedes through Counsel that it is a question for the judgment or discretion of the Court and it would have been difficult for the Attorney-General to submit otherwise in view of his stance in A.G. v. Lui Lok alias Lui Mo-lok ⁽¹⁾.

2. Now at the time of the Plaintiff's dismissal, Mr. Davies held the post of Secretary for Security and in that capacity it was his responsibility for making the final decision that the Plaintiff's employment as a police officer be terminated. Mr. Davies has now retired and has been retired for some several months. He lives in Europe. Clearly it might be inconvenient to him to attend to give evidence at trial, though there is no evidence before me on his affidavit that it would be so, and although public expense is involved. Mr. Davies himself as I understand it, would not be put to expense if he were required to attend, and on the material before me, I have no reason to believe that a visit to Hong Kong on some date to be fixed to suit his convenience would be uncongenial to Mr. Davies. However the strength of the application does not depend on questions of cost and convenience. The strength and thrust of the application is that the affidavit together with the documents to which Mr. Davies refers is not really capable of elaboration and no purpose would be served by bringing Mr. Davies all this way to give evidence. Mr. Barretto for the plaintiff does not agree. He says that there are matters in the affidavit which are just not accepted as being factually accurate. He does not say it is not a truthful affidavit. He simply says that there are matters contained therein which are not accepted by the plaintiff and if nothing more require elaboration and explanation from the mouth of Mr. Davies and I am inclined to agree. The affidavit itself is couched in the most general terms. Paragraph 6 which follows paragraphs in which Mr. Davies acknowledges that the decision was ultimately his and which refer to material being placed before him as a basis for his decision speaks of his considering "the whole favour of the case, not isolating particular aspects, and "weighing the decision as best as he can in the public interest and having regard to the interests of individual".

3. Well, in the context of this action for wrongful dismissal, it seems to me that it would not appear that justice was being done if Mr. Davies did not attend to submit himself to questions on those matters. And doing the best I can and giving it as a matter of judgment rather than discretion, I do not think it right to allow this application.

4. Of course, that does not removed from the Defendant the choice as to whether or not he will rely on the evidence of Mr. Davies at all. If it does then it simply means that he cannot rely on the evidence in the form of affidavit.

5. Application dismissed with costs to the Plaintiff in any event.

(1)    [1984] H.K.L.R. 273

Representation:

Ruy Barretto, instructed by Tang & Knight, for Plaintiff.

J. Daw & Davis Hui, Crown Counsel, for Defendant.