Yeung Cheong Fat v. An Investigation Committee Appointed Pursuant To Section 6 of the Public Service (Discipline) Regulation and Section 10 of the Public Service (Administration) Order 1997

HCAL 93/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS

NO. 93 OF 2003

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BETWEEN

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Before: Deputy High Court Judge To in Court

Dates of Hearing: 18 December 2003 and 13 April 2004

Date of Decision: 13 April 2004

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D E C I S I O N

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Introduction

1.This is an application for judicial review by the Applicant in which he seeks an order of certiorari to bring up and quash (1) the decision of the Investigation Committee dated 27 December 2002 finding the Applicant guilty of two charges of misconduct and (2) the decision of the Permanent Secretary for Housing, Planning & Lands (Housing) dated 2 June 2003 confirming the decision of the Investigation Committee and ordering the Applicant’s compulsory retirement from 3 June 2003 with deferred benefit and fine.

2.The Applicant was an artisan of the Squatter Control Unit of the Housing Department (“SCST”) in 1996.  He was assigned to team RA3 attached to Shatin.  He and other members of SCST were investigated by the Independent Commission Against Corruption (the “ICAC”) in about September 1996 for corruption offences.  At the conclusion of the investigation, no prosecution was brought by the ICAC against any member of the SCST.  However, the ICAC referred the matter to the Director of Housing (the “Director”) to consider disciplinary proceedings. 

3.In the exercise of the power delegated to him by the Chief Executive, the Director decided to conduct an inquiry in accordance with section 10 of the Public Service (Administrative) Order regarding the Applicant’s misconduct.  By a letter dated 19 November 2002, the Director informed the Applicant that he was being investigated of the following four charges of misconduct:

(1)   On 4 September 1996, he left the patrol car and was absent from duty without permission;

(2)   In January 1996 and between March to September 1996, on an average of twice a week, he left the patrol car and absent from duty without permission;

(3)   On a day in 1996, being late for 10 odd minutes for work, he used an attendance card bearing false arrival time to mislead the Housing Department; and

(4)   On 6 March 1996, he was absent from duty without leave or permission and came back to work on 8:16 a.m.

4.The inquiry was conducted on 5 December 2002 by the Investigation Committee appointed pursuant to the Public Service (Disciplinary) Regulations.  At the inquiry, the Applicant was not represented and was unassisted.  He denied all the four charges of misconduct.  In its report dated 27 December 2002, the Investigation Committee found the second and third charges established.  By a letter dated 2 June 2003, the Applicant was informed that the Permanent Secretary confirmed the decision of the Investigation Committee and ordered his compulsory retirement from 3 June 2003 with deferred benefit and a fine equivalent to reduction in one salary point for a continuous period of twelve months and forfeiture of all earned leave pursuant to section 10 of the Public Service (Administration) Order and regulation 1106(2)(c) of the Civil Service Regulation.

5.The grounds of review are that the proceedings were conducted unfairly as the misconducts alleged were not sufficiently particularised, that there was no evidence in support of the finding of the Investigation Committee and that the Investigation Committee applied the wrong standard of proof.

Nature of the disciplinary proceedings

6.Before considering the grounds of the review, it is important to understand the nature of the disciplinary proceedings before the Investigation Committee.  The inquiry was conducted in accordance with section 10 of the Public Service (Administration) Order, which is intended for the more serious disciplinary offences punishable by dismissal or compulsory retirement.  The Investigation Committee was appointed in accordance with regulation 6 of the Public Service (Administration) Regulations consisting of two public servants.  Regulation 8(4) of the Regulations provides that the Investigation Committee may enquire into any matter and admit and take into account any evidence or information which the Investigation Committee considers relevant and shall not be bound by any rules of evidence.  Regulation 8(5) states that the enquiry should not be conducted with undue formality and that the Investigation Committee is not exercising a legal function but rather ascertaining the facts.  Paragraph 13 of Part B of the Schedule to the Regulations provides that the evidence of witness shall not be taken on oath.  Paragraph 14 provides that it is the function of the Investigation Committee to examine the charge and all the circumstances surrounding it thoroughly and for that purpose, the chairman and members of the Investigation Committee shall put such questions as they may think fit to the officer under investigation, witness and the officer assisting in the enquiry (the “Assisting Officer”).  The proceedings before the Investigation Committee are civil proceedings.  The Investigation Committee is not exercising a legal function.  Its duty is to ascertain facts and is under a duty to investigate and for that purpose it is not bound by any rule of evidence.  The proceedings before the Investigation Committee are informal and inquisitorial. 

Whether the charges are sufficiently particularized

7.Mr Kwok, Counsel for the Applicant, submits that the charges were not proper charges due to lack of particulars.  His complaint is that in respect of the 2^nd Charge, there were no particulars specified in the charges regarding when the Applicant was absent from duty and how the average of two to three days a week was arrived at and in respect of the 3^rd Charge, the date of the misconduct was alleged to be a date in 1996 with insufficient particulars.  He submits that there was no way the Applicant can know the case he had to meet and this renders the inquiry unfair and embarrassing.  He quoted the case of Leung Siu-kwong, Christopher And An Inquiry Committee [1996] 1 HKLR 222 in which one of the reasons for allowing the appeal against the order of the Inquiry Committee was that the charge was not sufficiently particularised. 

8.The right to a fair hearing is a rule of universal application in the case of administrative acts or decisions affecting the rights of an individual.  The right to a fair hearing in disciplinary proceedings requires that a charge must contain sufficient particulars to enable the person accused of the misconduct to know the case he has to meet.  However, one cannot lose sight of the nature of the inquiry before the Investigation Committee which I have set out above.  The Investigation Committee is not discharging a legal function but is discharging a fact finding function and the proceedings in the Investigation Committee are informal.  Whether the charge is sufficiently particularised is a question of fact which has to be considered in the light of all circumstances of the case.  Indeed, in Leung Siu-kwong, Christopher And An Inquiry Committee cited by Mr Kwok,the Court of Appeal recognised that no formality is needed. 

9.Support for this proposition can also be found in the following dicta of Tucker LJ in Russell v Duke of Norfolk and Others [1949] 1 All ER 109 at 117-118:

“It is said that the plaintiff had no sufficient information before he attended the inquiry as to the nature of the charge made against him; that he had not been supplied before the hearing with a copy of the analysts’ report; that at the inquiry, although this matter might have been remedied if he had been shown a copy of the report and been given an opportunity to have an adjournment so that he could deal with it, only part of the report was read out; and, finally, that he was not given sufficient opportunity to present his case or call his witnesses.  In dealing with this matter, I think it is essential to appreciate the precise nature of the inquiry. …

The plaintiff’s explanation showed on the face of it that the horse had been left unattended for something like 20 minutes during the vital period, and on that explanation given by the plaintiff himself it is not surprising that he should have been found to have been guilty of negligence.  I only make those observations to indicate what, in my view, was the nature of the inquiry.  I think it is a mistake to regard all these matters as if they were prosecutions with a prosecutor and a defendant.  It was an inquiry in the course of which it emerged that there were matters for which the stewards held the trainer responsible. …

Throughout this inquiry he was, at every stage, it seems to me, given an opportunity of presenting his case and of asking any questions which he desired to ask.”

10.In To Chun Fung Albert v Medical Council of Hong Kong  [2002] 1 HKC 571 at 582, Le Pichon JA held that in considering the sufficiency of the charge, the yardstick is overall fairness.   

“The appellant also sought to dissect the so-called ‘findings’ and subject each element to microscopic scrutiny as if they were elements of the charge which had to be established when they were not.  In my judgment, in considering the sufficiency of the charge, the relevant yardstick is overall fairness to the person against whom misconduct is alleged: … he should be given a fair opportunity of hearing what is alleged against him and of presenting his own case.  See per Lord Diplock in O’Reilly v Mackman [1982] 3 All ER 1124, 1127.  It seems to me that the correct approach is whether, reading the evidence as a whole, there is reason to believe that the appellant was genuinely disadvantaged which could have rendered the hearing ‘unfair’ to the appellant.”

11.Thus in my view, the question of sufficiency of a charge is not to be adjudged with the criminal standard.  The real test is, putting aside all questions of technicality, whether the person being investigated knows the precise nature of the charge against him and whether it is overall fair in the sense that the particulars provided are sufficient to enable him to adequately defend the charge against him.

12.Turning to the background of the present case, it is apparent that the 2^nd Charge was drawn up by the Housing Department based primarily on the information in the cautioned statement and witness statement of Mr Au Kwok Wah (“Au”), the driver of the Housing Department vehicle AM2872, who transported the Applicant and other workmen from their office to the place of outside duty.  In those statements, Au described his routine driving duties since January 1996.  He said he drove members of Team RA3 from the office to their place of work for patrol duty.  However, on the average of two to three days a week, he was instructed by the Housing Officer in charge, Mr Leung, to drop the team members at Wai Wah Centre or Pai Tau Village in Shatin.  He described that activity as “jumping the car (跳車)”.  By that he understood the team was not patrolling on that day and he was to drive the vehicle around so as to register enough mileage on the speedometer as if the team had been patrolling on his vehicle.  After that he would park the vehicle at a convenient location and rest until 11 a.m. when he would drove the vehicle back to the office.  He would make false entries in the vehicle log book of the locations where the team was supposed to have performed the patrolling duty.  He could not recall the precise dates when the team “jumped the car” (alighted) but he recalled that occurred on the average of two to three times a week.  Those were the best particular he could give.  The misconduct alleged is a system whereby members of the team, including the Applicant, absented themselves from work and made false representations to the Housing Department that they had in fact performed their patrolling duty. The precise dates during these nine-month period when the Applicant absented himself is not important.  It does not cease to be a misconduct if the Applicant was found not to have absented himself in a particular week or on a particular day.  The misconduct is proved if there was such a system in which the Applicant absented himself on the average twice a week during the period mentioned in the charge.  The Director has safely alleged on the average of two days instead of three days in a week.

13.In a letter dated 12 March 1999, the Director invited the Applicant to explain the allegations of misconduct.  The Applicant duly gave an explanation on 19 March 1999.  In a letter dated 2 September 2002, the Director informed him of the potential charges and invited submission from him as to why an inquiry should not be held.  The Applicant gave a clear and meaningful denial.  The charges actually laid were same as those stated in the Director’s letter of 2 September 2002.  Thus the Applicant had ample time to understand the nature of the charges.

14.At the inquiry, the Assisting Officer opened the case.  The Applicant raised queries about the 2^nd Charge.  The Assisting Officer as well as the Investigation Committee clarified the basis of the charge to him.  It was amply clear that the charge was based on the statements of Au which had been provided to him.  The Applicant was able to effectively cross-examine Au to the extent that Au admitted he did not know where the team had gone after they alighted from his vehicle and did not know if the Applicant performed his duty thereafter or not.  Then the Applicant gave meaningful evidence and a closing speech.  Though his evidence and submission were not accepted by the Investigation Committee, he clearly understood the nature of the charges and was able to defend the case against him.

15.Thereafter, the Applicant wrote a twenty-page representation to the Discipline Secretariat.  He referred to Au’s cautioned statement and witness statement.  Obviously, he had been aware of the basis of the charges and had addressed his mind to the evidence against him.

16.Applying the test I posed at the beginning, I am satisfied that the Applicant knew the precise nature of the charges against him and it was overall fair in the sense that the particulars provided were sufficient to enable him to adequately defend himself.  I do not think the Applicant can derive any support from Leung Siu-kwong, Christopher And An Inquiry Committee because whether a charge is sufficiently particularised is a question of fact of the particular case.  The facts in that case are clearly distinguishable from the present case.

17.In the 3^rd Charge, it is alleged that the Applicant was late for ten minutes on a date in 1996 and he used an attendance card bearing a false arrival time to mislead the Housing Department.  The Applicant complains of lack of particularity as to the date of the misconduct.  The misconduct alleged is not merely for being late for ten minutes on a date unknown in the year 1996, but for being late and using an attendance card bearing a false arrival time.  As in the case of the 2^nd Charge, this charge was laid on the basis of the Applicant’s admission to the ICAC that occasionally when he was late for work by half an hour, he would telephone his colleagues and ask them to clock in for him.  He had been informed of the charge and invited to offer an explanation which he did in his letter dated 19 March 1999.  His explanation was that on one occasion while he was riding on his bicycle to work, the tyre burst and he requested his colleague to inform the Housing Officer but the colleague clocked in for him.  Before the Investigation Committee, he repeated this explanation.  It was this misconduct for which he was being investigated and found to have committed.  He responded to the charge and gave answers which were largely evading and mitigatory.  He clearly knew the occasion in which the misconduct was alleged to have been committed and for which he was being investigated.  Applying the test I posed, I am satisfied that the Applicant knew the precise nature of the charge against him and it was overall fair in the sense that the particulars provided are sufficient to enable him to adequately defend himself.  I consider the charge is sufficiently particularised.  If such particulars were given in an indictment, the particulars would also have been upheld as being sufficient.

18.For the above reasons, I dismiss this ground of review.

Whether the findings of the Investigation Committee are supported by the evidence

19.Under this ground of review, the Applicant’s complaint is that in respect of the 2^nd Charge, there was no evidence at all to show: (a) how often, and on what date or dates, the Applicant alighted AM2872 at Wai Wah Centre; (b) that the Applicant did not work after he had alighted and (c) that if he did not work, it was without permission from his senior officer. 

20.Before turning to the substance of the complaints, it must be remembered that a fundamental principle in judicial review proceedings is that the court does not act as a general court of appeal.  In Minister for Immigration and Ethnic Affairs And Wu Shan Liang and Others [1996] 185 CLR 259, the High Court of Australia in considering various propositions in respect of practical restraints on judicial review said at 272:

“These propositions are well settled.  They recognize the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.  This has been made clear many times in this Court. …”

The court also held at 293:

“First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court of law conducting a trial than to the proper performance of the function of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. …”

21.Thus in an application for judicial review, the court is not so much concerned with the wisdom of a decision but with the propriety of the decision-making process.  As Lord Brightman said in Chief Constable of North Wales Police v Evans [1982]1 WLR 1155 that the judicial review is not an appeal from a decision, but a review of the manner in which the decision was made.  It is not the function of this Court to conduct a detailed analysis of the minutiae of the evidence presented and the findings made by the Investigation Committee.  Thus, unless the finding of the Investigation Committee is wholly unsupported by the evidence, it is not the function of this Court to interfere merely because it would have formed a different view as to credibility of the witnesses or would have drawn a different inference on the evidence. 

22.In respect of the first of the Applicant’s complaints, i.e. lack of evidence on the dates of absence, I have held earlier that the misconduct alleged does not lie in the Applicant’s absence in a particular week or a particular day but in the course of misconduct.  Au gave evidence that on the average the team “jumped the car” twice to three times a week.  The misconduct is proved if there was such a system in which the Applicant absented himself on the average twice a week during the period mentioned in the charge.  Obviously, that evidence was accepted by the Investigation Committee.  Evidence of the precise date or dates when the Applicant was absent is as a matter of reality incapable of recollection by the witness and in my view, unnecessary to substantiate the charge.

23.I now turn to the second complaint about lack of evidence that the Applicant did not work after alighting AM2872.  There is no dispute that the Applicant’s team was responsible for patrolling the “Red Area”. The Investigation Committee had considered the Applicant’s evidence that his team had to assist in other areas and the Housing Officer’s evidence that the occasions when the Applicant’s team had to assist in other areas were rare.  On such evidence, it is open to the Investigation Committee to draw adverse inference from the frequent occasions, say twice or three times a week, when the Applicant and his team alighted at Wai Wah Centre, which was nowhere near the “Red Area” for which he was responsible.  The Investigation Committee was entitled to look at the whole circumstances, including that Au had to drive the vehicle around so as to register adequate mileage on the speedometer as if the team had been on patrol and to falsify the vehicle logbook.  Had the team been on patrol duty or had there been proper cause for them to alight at Wai Wah Centre, these driving and false entries in the logbook were unnecessary.  With all these circumstances in the background, it is open to the Investigation Committee to draw as the only irresistible inference that the purpose for the members of Team RA3 alighting at Wai Wah Centre on two to three occasions every week at 9 am was not in connection with the performance of their duties or with the proper permission of their senior officer.

24.Mr Kwok argues strongly in respect of the third of the Applicant’s complaints under this ground that even if the Applicant did not work after alighting at Wai Wah Centre, there was no evidence that it was without the permission from his supervising officer.  He also argues that the Applicant was with his supervising officer, the Housing Officers, namely Leung on most of the occasions when he and his team used and left AM2872 and that the Housing Officers taught Au to falsify the logbook entries which implied that his absence was with permission of his supervising officer.  He referred to Re Cheung Sai To & Anor [1996] 6 HKPLR 51, which involved a similar inquiry about the misconduct of workmen of the Housing Department by a Investigating Committee set up prior to 1997.  In quashing the decision of the Investigating Committee, Findlay J said at 57:

“It is quite clear that this sort of conduct was widespread in the department.  In all probability, it could not have been going on without the superiors of the officers knowing about it.  These officers were workmen, which, I think, is just about the lowest rank in the public service.  They are not officers who are left to their own devices; they are supervised.  It seems highly unlikely that they could have been absent from duty for any significant length of time without superiors knowing about it.  If it is so that what these men say is true; that it was the practice of their superiors in the department to allow them to go when there was no work for them to do, and that, when they returned, they made entries in the attendance book saying that were on duty when they were not, and this was done with the knowledge of their superiors, this must be at least highly mitigatory.

One might be forgiven for thinking that, faced with this situation, which Ms Watson described rightly as ‘appalling’, the thing to do would be to investigate the rot from the top, stamp out the evil practices, discipline those responsible for allowing it to happen, and warn the others that the old ways would no longer be tolerated.  If scapegoats were to be found, reasonably one should look higher up the tree than lowly workmen.  One might fairly ask, if what is alleged is true, what was expected of humble workmen at the bottom of the pile who were told by their superiors that, the work for the day having been completed, they could go.  Was it really expected that they should say, ‘No; I know my duty if you do not.  Although there is nothing for me to do, I will sit here until it is the proper time to go home?’ ”

25.Despite the apparent similarity between that case and this present case and that both cases involved low ranking officers in the same department, the two cases are distinguishable.  It is important to note that Findlay J did not regard absence from duty with permission of one’s superior as a defence to a charge of misconduct but considered such permission as mitigatory only.  It appears from the report in that case that the workmen left for China after finishing work with the permission of their superior.  However, despite this issue was raised, the Investigating Committee neglected its duty to investigate into this issue.  Worst of all, what provoked the above criticism from Findlay J was that not only was this mitigating factor not investigated into, it was treated by the Governor’s delegate as an aggravating factor indicating lack of remorse.  It was the failure to make enquiry and the treatment of a mitigating factor as an aggravating factor which resulted in the decision being quashed.  The permission was not properly or legitimately given. A superior’s permission which in itself amounted to a misconduct cannot be a valid defence.

26.In the present case, the question of permission had been investigated into by the Investigation Committee.  From the transcript, it is clear that questions had been asked of the Housing Officer in charge of Team RA3, i.e. Leung.  He denied that any member had left the team in the course of the patrolling duty and said that the team left the office for patrol duty as a group and returned as a group.  From the transcript of the inquiry before the Investigation Committee, it appears that he was evasive when answering questions about why he signed the logbook of AM2872.  Obviously, by accepting the evidence of Au that the team “jumped the car” at Wai Wah Centre, the Investigation Committee was impliedly rejecting Leung’s evidence.  Leung also “jumped the car” with the Applicant and the other members of the team.  This distinguished the present case from Re Cheung Sai To & Anor.  Leung was an equally active participant in the misconduct. Leung and the Applicant were both parties to the misconduct and both of them absented themselves without proper permission from a senior officer for legitimate reason.  I certainly feel much stronger in this case than Findlay J was in Re Cheung Sai To & Anor against the Director’s discrimination against the Applicant in that the most senior officer and most culpable officer in charge of the team was not disciplined while his second in command was.  However, in my view, the Investigation Committee rightly came to the conclusion that the Applicant’s absence was without permission.

27.Mr Kwok submits that apart from the Applicant’s team RA3, the vehicle AM2872 was also used by another team, RA4.  I do not think this has any effect on the inference drawn by the Investigation Committee because according to Au, members of both teams alighted at Wai Wah Centre.  Mr Kwok argues that there were occasions that Team RA3 did not use AM2872, that there were duties which were performed without using AM2872 and that Au could not recall who was using AM2872 on 4 September 1996 which resulted in the Investigation Committee finding the first charge not established.  I think these carry little weight in the deliberation of the Investigation Committee and are unlikely to affect its decision.

28.In respect of the 3^rd Charge, there was evidence before the Investigation Committee that the Applicant admitted he was late for ten minutes on an occasion in 1996, that he telephoned his colleague to inform the Housing Officer and that he knew his colleague had clocked in for him.  The Investigation Committee found that in using the attendance card the Applicant adopted the act of his colleague and misled the Housing Department.  On the available evidence, it is open to the Investigation Committee to reach that conclusion, though taken in isolation, the misconduct is a trivial one.

29.In conclusion, I am satisfied that there was sufficient and cogent evidence for the Investigation Committee to reach its decision in respect of both the 2^nd and 3^rd Charges.  I therefore dismiss this ground of review.

Standard of proof 

30.Mr Kwok submits that the charges against the Applicant amounted to criminal offences punishable by imprisonment and the standard of proof must be to such a degree of probability which falls short of proof beyond reasonable doubt by so small a margin as to make no practical difference.  He relied on Dr Lai King Shing And The Medical Council of Hong Kong [1995] 2HKLR 465.  In that case, Keith J (as he then was) held at 468:

“It has the inestimable advantage of flexibility, and does not tie the hands of the disciplinary tribunal to a particular standard of proof, whatever the nature of the allegations and whatever the consequences for the person facing the disciplinary action. The more serious the complaint, and the more dire its consequences, the greater the degree of proof required to prove it, even though the degree of proof required falls short of proof beyond reasonable doubt.”

31.I think the Court of Appeal went further than that in another decision published at about the same time.  In Tse Lo Hong v Attorney General [1995] 3 HKC 428, the Court of Appeal held it was wrong to apply the civil standard where the events giving rise to the disciplinary charge would also found serious criminal charges.  Litton VP (as he then was) said at 440:

“In my judgment, the matter can be approached very simply.  Charge A was, in essence, one of indecent assault.  This carried severe penalties for the ‘defaulter’.  To categorize the proceedings as ‘civil’ does not end the matter.  The standard of proof must be commensurate with the gravity of the charge.  Here, the tribunal seems to have required the prosecution to prove the case on a mere ‘balance of probabilities’ which in my judgment is plainly unacceptable.”

Bokhary JA (as he then was) concurred and said at 442:

“… the criminal standard of proof is not applicable simply because a serious disciplinary charge is involved.  But where the events giving rise to such a disciplinary charge would also found serious criminal charges, then it may be appropriate to apply that standard.

32.Though disciplinary proceedings are civil in nature, their Lordships did not consider the civil standard of proof must invariably be applied in all disciplinary proceedings.  The standard of proof to be applied is dependent on the events giving rise to the disciplinary charge.  Thus, while in general the civil standard of proof obtains in disciplinary proceedings, if the events giving rise to such disciplinary charge would also found serious criminal charges, then the criminal standard of proof is applicable.  I think this approach is to be preferred.  It avoids the anomalous situation that a person may be found not guilty in a criminal proceeding but guilty in a disciplinary proceeding on precisely the same evidence because of the different standards to be applied in the two sets of proceedings.  I recognise that there can be different degrees of proof within any standard of proof and that it is possible to have a very high degree of proof within the civil standard which is commensurate with the seriousness of the charge.  However, to describe a standard of proof on balance of probability which differs from the standard of proof beyond reasonable doubt by a very small margin as to make no practical difference is both confusing and artificial.

33.In Tse Lo Hong v Attorney General and Dr Lai King Shing And The Medical Council of Hong Kong, the events giving rise to the disciplinary charges would also found a serious charge of indecent assault.  Proof on the criminal standard is justified.  However, the present case is distinguishable from these two cases.  I do not think the events giving rise to the 2^nd Charge would found a criminal charge of obtaining property by deception.  It may possibly be argued that the events giving rise to the 3^rd Charge may give rise to a criminal charge of obtaining property by deception, but it is of such a trivial character that this significance may well be ignored.  In the circumstances, the civil standard was the appropriate standard of proof required for both charges.  However, as the Secretary for Civil Service chose to proceed against the Applicant under section 10 of the Public Service (Administration) Order instead of under section 9, which may result in the Applicant’s dismissal or compulsory retirement, a higher degree of proof under the civil standard which commensurate with the seriousness of that consequence is called for. 

34.There is no specific reference in the report of the Investigation Committee to the standard of proof.  However, the Investigation Committee used terms such as “doubts” and “the benefit of doubt” when holding that the 1^st and 4^th Charges were not proved.  This suggests that the Investigation Committee adopted, if not a criminal standard, a civil standard of a very high degree.  The standard and degree of proof adopted by the Investigation Committee could not have been faulted.

Conclusion

35.In conclusion, I consider the charges were sufficiently particularized, that there were sufficient and cogent evidence in support of the finding of the Investigation Committee and that the Investigation Committee applied the correct standard of proof.  The Investigation Committee is entitled to reach the decision it did.  In the circumstances, it is not open to this Court to interfere with the decision of the Investigation Committee or the decision of the Permanent Secretary confirming the decision of the Investigation Committee and ordering the compulsory retirement of the Applicant.  Accordingly, the application is dismissed with costs be to the Respondents.

Mr Kwok Sui Hay, instructed by Messrs Hobson & Ma, for the Applicant

Mr Dennis Law, assigned by Department of Justice, for the Respondents