Yeung Tin Leung, Vincent v. The Chief Executive

HCAL 90/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 90 OF 2003

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BETWEEN

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Before: Hon A Cheung J in Court

Date of hearing: 2 February 2005

Date of judgment:  11 March 2005

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J U D G M E N T

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Background

1.In this application for judicial review, the Applicant, a former civil servant, seeks to challenge the decision of the Chief Executive directing that he be retired in the public interest pursuant to section 12 of the Public Service (Administration) Order (“the Order”).

2.The Applicant was first appointed in September 1990 as a maintenance surveyor in the Architectural Services Department (“ASD”).  He was since posted to various departments of the government.  His gradings on overall performance in his annual appraisal reports fluctuated over the years.  In 1994, he got a grading of “very effective”, but in other years he got gradings ranging between “effective” and “moderate”.

3.In some of the reports, it was observed that the Applicant was an officer in need of close supervision and guidance.  He was given counselling to improve his overall performance.  Improvements were observed during different periods of time.

4.In 1997 and 1998, the performance of the Applicant was again regarded as unsatisfactory and an advisory letter was sent to the Applicant on 23 March 1998 drawing his attention to his shortcomings and advising him to improve his performance.  However, apparently no improvement was observed.  On 17 November 1998, the management issued another advisory letter to the Applicant urging him to improve his performance, and forewarned him that should his performance remain unsatisfactory during the period from 1 January to 30 June 1999, consideration would be given to whether a potential case under section 12 of the Order was established.  In the following 6 months’ period, the Applicant’s performance improved, and the management informed him on 19 July 1999 that action against him under section 12 would not be recommended.  He was advised to keep up his efforts and to further improve his performance.  Pausing here, it should be noted that for this 6 months’ period in 1999, the relevant appraising officer, countersigning officer and reviewing officer (head of grade) were respectively Mr Angus, Mr Horsnell and Mr K K Ng.

5.But then matters took a turn for the worse.  For the period from 1 July to 31 December 1999, originally Mr Angus, the appraising officer, rated the Applicant’s overall performance as “very effective”.  The countersigning officer, Mr Horsnell, considered that the assessment made by Mr Angus was over-generous.  He opined that the Applicant’s overall performance was “effective” only.  The report went through the reviewing officer (Mr K K Ng), the head of grade, who did not express any direct opinion on the downgrading.  The report was then reviewed by the assessment panel, comprising Mr K K Ng as chairman and Mr Horsnell, a Mr Fong and a Mr Hui as members, and a Mr Lee as secretary.  The panel decided to downgrade the overall performance from “very effective” to “effective”.  According to the record, Mr Angus was notified of the downgrading and he was asked to inform the Applicant accordingly.

6.History repeated itself for the year 2000.  Mr Angus again rated the Applicant’s overall performance as “very effective”, and the countersigning officer (Mr Horsnell) again thought that Mr Angus was being over-generous.  After review, the assessment panel decided to downgrade the overall performance grading from “very effective” to “moderate”.  This time Mr Horsnell was not a member of the assessment panel.  He was replaced by Mr K K Leung.

7.As most of the individual ratings in the appraisal report (given by Mr Angus) remained “very effective” or “effective”, which did not tally with the overall “moderate” rating, nor the Applicant’s (alleged) deficiencies as revealed in a verbal warning issued to him in September 2000, a special assessment panel (having the same composition as the assessment panel) was held to critically review the Applicant’s appraisal.  After review, some of the individual items in the appraisal report were downgraded.  According to the record, Mr K K Leung was informed about the amendments made by the special assessment panel and he was asked to notify the Applicant accordingly.

8.For the period from 1 January to 30 June 2001, the original grading of overall performance was again downgraded from “moderate” to “poor”, with downgrading of individual items in the appraisal report as well, by the assessment panel and special assessment panel, both chaired by Mr K K Ng.  According to the record, Mr K K Leung was responsible for notifying the Applicant of the same accordingly.

9.There were in fact other incidents of downgrading, but in this application for judicial review, it is said that the three incidents of downgrading described in the preceding paragraphs “were the most important and decisive leading to the ultimate fate of the Applicant”.

10.To cut a long story short, apart from the downgradings, there were verbal and written warnings given by the management to the Applicant regarding his work performance (the Applicant disputes some of the alleged warnings).  It is a fair summary to say that after 2000, it was a downward spiral path for the Applicant, leading eventually to the issue of a letter of intent dated 28 February 2003 by the Secretary for the Civil Service, which said, amongst other things:

“Your performance remained disappointing.  Your overall performance, as reflected in the second quarterly special report ending 30 September 2002, was assessed as “Poor”.  Your supervisors commented that daily correspondence prepared by you required much refinement in view of your careless mistakes, failure to fully grasp the prevailing legislative requirements, and inability to apply the basic skills expected of an officer bearing your rank.  Your quality of work left much room for improvement.  You continued to adopt a lax attitude towards your work.  Your passive attitude and poor communication skill had created much difficulty for management in assigning duties to you as most of the tasks in your rank demanded committed co-ordination, supervision and authoritative input.

On the basis of your performance records as detailed above, I am satisfied that ample assistance and opportunities have been given to you to improve your performance, and that you have been properly forewarned of the consequence of the failure to make improvement within the specified period.  Having regard to all the circumstances, it is considered that your retirement under Section 12 of the PS(A)O is justified in the public interest.

Retirement in the public interest under Section 12 of the PS(A)O is not a form of punishment.  You will be eligible for your deferred retirement benefits based on the actual length of your pensionable service up to the date of your retirement in accordance with the relevant pension legislation.  You will also be granted your earned vacation leave, if any.

Should you wish to submit any representations, please forward them to me within 14 days upon receipt of this letter.  Your representations will be carefully considered by the Chief Executive before a final decision is taken.”

11.Pausing here, it would be convenient to reproduce section 12 of the Order:

“12.   Retirement in the public interest
(1)	The Chief Executive may, at any time if it is represented to him that the retirement of an officer is desirable in the public interest, call for a report from the head of any department in which the officer has served.  The officer shall be informed of the grounds on which his retirement is contemplated under this section and be given an opportunity to make representations.
(2)	The Chief Executive may, upon a consideration of the report and of any representations submitted under subsection (1), require the officer to retire from the service, if he is of the opinion that, having regard to conditions of the public service, the usefulness of the officer thereto and all other circumstances of the case, the termination of the officer’s service is desirable in the public interest and the officer’s service shall accordingly terminate on such date as the Chief Executive may specify.
(3)	If upon consideration of-
	(a)	an inquiry into the conduct of an officer under section 9 or 10, or
	(b)	the proceedings of a court by which an officer has been convicted of a criminal charge,
the Chief Executive is of the opinion that the officer does not deserve to be punished but that the inquiry or proceedings disclose grounds for requiring him to retire in the public interest, the Chief Executive may require the officer to retire from the service under this section, and in such a case it shall not be necessary for the Chief Executive to comply with the procedure mentioned in subsections (1) and (2).  (Amended by E. O. 1 of 2000 s. 5)
(4)	Where an officer is required to retire under this section, he may be granted a pension, gratuity or other allowance in accordance with any pensions law for the time being in force.”

12.By letter dated 25 April 2003, the Applicant made representations to the Chief Executive in defence of his performance.

13.Having taken into account the representations of the Applicant, as well as the submission of the Secretary for the Civil Service, the Chief Executive, as mentioned above, eventually decided to direct the retirement of the Applicant in the public interest pursuant to section 12 of the Order.

Application for judicial review

14.In this application for judicial review, the Applicant seeks an order of certiorari to quash the decision of the Chief Executive directing him be retired in the public interest, and an order to remit the review of the Applicant’s work performance to an independently constituted panel in accordance with proper procedure.

15.A number of grounds to support the application for judicial review have been raised in the papers and evidence filed in support.  However, at the hearing of the application, Miss Chiu, counsel for the Applicant, confined her client’s case to four grounds, namely non-disclosure of the first two incidents of downgrading mentioned above, actual bias, apparent bias and irrationality of the assessments.

Material non-disclosure

16.Material non-disclosure is a non-starter on the facts.  As mentioned above, according to the contemporaneous records, which are not and cannot sensibly be disputed, Mr Angus and Mr K K Leung were respectively given a copy of the amendments to the original appraising reports for the relevant periods, and they were asked specifically to inform the Applicant accordingly.

17.Mr Angus, in his recent affidavit, confirmed the practice of informing the appraisal officer of the changes to the original appraisal report as well as the officer being reported on if the changes were substantial.  But he had no recollection of having been asked to inform the Applicant of the downgrading.

18.In my view, Mr Angus’ lack of recollection is not surprising given the lapse of time.  But the contemporaneous records clearly show that Mr Angus and Mr K K Leung were respectively told to inform the Applicant of the downgradings in the relevant periods.  On the evidence before me, there was no reason whatsoever for either Mr Angus or Mr Leung not so informing the Applicant as they had been asked to do.  In those circumstances, the Applicant’s bare denial of not having been notified of the two incidents of downgrading (and thus the loss of a chance to make representations in relation to them) cannot be accepted.

19.As I said, on the facts, this ground of challenge simply cannot get off the ground.

Actual bias

20.The Applicant, in his supporting affirmations and by counsel, alleged against Mr K K Ng actual bias.  Needless to say, this is a very serious charge.  The burden is certainly on the Applicant to make good his allegation.  One must also bear in mind that this is an application for judicial review; the proceedings are not apt for resolving any factual dispute.  Suffice to say that Mr K K Ng has strenuously denied the allegation.

21.Miss Chiu said that Mr K K Ng was the head of grade, reviewing officer and chairman of the assessment panel and special assessment panel, in relation to the downgrading incidents.  But that in my view does not take counsel’s case on actual bias anywhere.  Nor does the fact of downgrading by itself establish the serious allegation of actual bias.

22.In this regard, it must not be forgotten that in fact it was Mr Horsnell who first disagreed with Mr Angus’ grading of the Applicant’s overall performance.  Furthermore the assessment panel and special assessment panel comprised members other than Mr K K Ng.

23.Counsel has specifically confirmed with the Court during the hearing that no allegation of actual bias is levelled against Mr Horsnell.  In relation to the other members, the Applicant’s case is that they were “influenced” by Mr K K Ng (who was biased against the Applicant).  I find the suggestion against the other members wholly devoid of merit and unsubstantiated on the evidence.

24.Both Miss Chiu in her submission and the Applicant in his affirmations placed much reliance on the favourable gradings given by Mr Angus.  But in my judgment, that does not really support a case of actual bias against Mr K K Ng at all.  Mr Horsnell, for one, thought that Mr Angus was over-generous in his gradings in general, and the downgrading was required to bring the gradings in line with the assessments on other officers made by other appraising officers across the board.

25.The mere fact that different officers disagreed with each other on matters of appraisal and assessment, which inevitably involved a degree of subjective judgement, can hardly be evidence of actual bias on the part of the officer who favoured a poorer grading against the officer who was being reported on.

26.The case against Mr K K Ng is particularly unfair, not only because only he (but not Mr Horsnell) has been singled out for the allegation of actual bias, but also that he in fact was the head of grade during the period between 1 January 1999 and 30 June 1999 in which the Applicant was under consideration for a section 12 procedure.  As noted above, Mr K K Ng (with Mr Angus as the appraising officer and Mr Horsnell as the countersigning officer) observed improved performance on the part of the Applicant during that 6 months’ period, as a result of which action against the Applicant under section 12 was not recommended.

27.In the affirmation evidence filed by the Applicant, he referred to a number of alleged incidents in which words were said to have been spoken which could, if believed, indicate bias.  However they were bare allegations, and were strenuously denied by Mr K K Ng and others concerned.

28.Looking at the evidence as a whole, including not only the Applicant’s bare allegations but also the hard facts and surrounding circumstances, I have no hesitation whatsoever in rejecting the Applicant’s allegation of actual bias on the part of Mr K K Ng.

29.In any event, even if there were actual bias on the part of Mr K K Ng, I would still reject the present ground for the simple reason that on the evidence, there was no causal connection between the actual bias of Mr K K Ng and the assessments and downgradings made by the assessment panel and special assessment panel.  As I mentioned above, there were other members in the panels, and I wholly reject the suggestion that these other members were influenced or affected by Mr K K Ng (or his bias), which caused them to make the wrong assessments or downgradings against the Applicant.

30.Furthermore, even if a case of actual bias could be made out against the assessment panel and special assessment panel, I would still reject this ground of challenge because it must not be forgotten that the decision under challenge is that of the Chief Executive’s, against whom no allegation of actual bias has been made.

31.The facts now relied on by the Applicant were or should have been well known to the Applicant himself prior to his making representations to the Chief Executive pursuant to the section 12 procedure.  Yet in his representations, he made no allegation of actual bias against Mr K K Ng.  Nor did he allege that the other members of the assessment panel or special assessment panel had been influenced by Mr Ng’s actual bias against him.  Whilst he complained generally about the unfairness of the gradings and conflicts of views between him and his senior colleagues, he did not mention actual bias against Mr K K Ng nor did he rely on it as a ground for defending his position.

32.As Mr Ismail, appearing for the Respondent, has submitted, in those circumstances, the Applicant must be taken to have waived any right to complain that the Chief Executive’s decision should be quashed on the ground of bias: Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] QB 451; Financial Secretary v. Wong [2004] 1 HKLRD 303, 323 (para. 50).

Apparent bias

33.As regards apparent bias (– for the law, see Deacons v White and Case Limited Liability Partnership [2004] 1 HKLRD 291), again no allegation of apparent bias was raised in the representations made by the Applicant to the Chief Executive.

34.Furthermore, on the facts, again I am not with Miss Chiu.  Counsel relied on the appraisal procedure, and in particular the fact that Mr K K Ng was both the reviewing officer as well as the chairman of the assessment panel and special assessment panel, to say that there was apparent bias in the appraisal procedure.  Moreover, she urged the Court to look at matters not only “horizontally” (i.e. by focusing on the appraisal and review procedure on a particular occasion) but also “vertically” – by that counsel meant that I should look at the whole history of the matter to discover apparent bias.

35.It must be emphasized that the appraisal procedure is purely administrative in nature.  It is not contained in any statutory or regulatory instrument.  But I do agree that the ultimate aim of the procedure and procedural safeguards must be to attain fairness and objectivity, insofar as that can be achieved – for after all, as I said, assessment must necessarily involve a certain degree of subjective judgement.

36.Furthermore, given that appraisal and review are conducted by officers who, to varying degrees, would have general (if not personal) knowledge of or about the work of the officer under assessment, by definition, the assessment and review must be tainted, as it were, to a certain extent by the general or personal knowledge and experience of the officers handling the appraisal and review, including very often their personal contacts and working experience with the officer under assessment.  On the other hand, given the Chief Executive’s relatively detached position, he would serve as the ultimate safeguard of objectivity and procedural fairness.  To be sure, the decision of the Chief Executive would to a significant extent be dependent on the results of the assessment and review.  However, the Chief Executive must be taken to be fully aware of the appraisal procedure by which those working under him conducted appraisals and reviews.  So for instance, he must be taken to have known that by virtue of his position and the procedure applicable for appraisal and review at the time, Mr K K Ng, the head of grade, would act both as the reviewing officer as well as the chairman of the assessment panel and special assessment panel under normal circumstances.  The Chief Executive must be taken to have given due allowance for that fact in evaluating the results of assessment and review and the recommendations made by those responsible.

37.Counsel complained that as the countersigning officer and reviewing officer had make adverse comments on the performance of the Applicant, they should not sit in the assessment panel and special assessment panel as well.  For there would be a real possibility that they had prejudged the matter and were biased in the review conducted by the assessment panel.

38.I do not agree that this is fatal.  It must be remembered that the assessment panel or special assessment panel was not a court of law.  And their members were not judges.  They were senior officers within the department in which the Applicant was working.  Under the appraisal and review procedure, the Applicant was simply being assessed by his superior officers for his performance.  Whether the assessment and review procedure comprised a two-tier or multi-tier system is neither here nor there.  Given the lack of any statutory underpinning, in my judgment, it would not be unfair if the procedure were to comprise only three steps, i.e. the appraising, countersigning and reviewing steps by the appraising officer,  countersigning officer and head of grade as reviewing officer.  By the same token, the whole procedure would not be rendered unfair if it were to skip the intervening steps involving the countersigning officer and reviewing officer, leaving only the initial appraisal and the assessment panel/special assessment panel’s review.  That being so, as I asked Miss Chiu during her argument, how could it be unfair that the procedure as it actually existed at the time permitted the countersigning officer and reviewing officer to express views (favourable or adverse) at a stage in between the appraising officer’s report and the assessment panel’s review?  It was simply part of the established procedure at the time for the head of grade/reviewing officer and the countersigning officer to sit in the assessment panel/special assessment panel.  The situation was not unique to the Applicant’s case. 

39.As I have said more than once, the whole procedure is not statutorily underpinned.  The only legitimate expectation of an officer under assessment is that the procedure would be followed.  See Yim Shik Shi v The Secretary for the Civil Service HCAL 128/2003 Hartmann J (28 May 2004) paras. 10 & 11. 

40.In any event, the fairness of the procedure cannot be decided without looking at the larger picture comprising also the section 12 procedure.  And once the section 12 procedure is taken into account, there is no question of the Chief Executive sitting on his own cause or prejudging anything.

41.The case of Perera v The Governors of Botwell Roman Catholic Primary School, Court of Appeal (2 March 1988), illustrates that depending on the body or tribunal in question, the prior expression of adverse comments on previous occasions does not necessarily disqualify the maker of the expressions from subsequently sitting in the body or tribunal.  Thus in that case where a music teacher was fired by a primary school, the Court of Appeal held that there was nothing wrong in the governors, who had on previous occasions been present at meetings, formal or informal, where the difficulties between the teacher and the headmistress had been discussed, being present and making the decision of the board of governors to dismiss the music teacher. 

42.No doubt the facts of that case are not on all fours with the present one.  But I am of the view that it would be too broad a principle to state that whenever a member of a tribunal or body has on a prior occasion expressed any views adverse to a case that the tribunal or body is going to hear, he will have thereby disqualified himself from sitting in the tribunal or body.  In my view, it is really necessary to consider the type of bodies or tribunals alleged to be affected and the nature of the bias alleged in each particular case, in order to decide the question of apparent bias.

43.In any event, in the present case, as I have sought to explain above, the crucial question is whether the section 12 procedure has been tainted by apparent bias, and not whether in one of the steps preliminary to the section 12 procedure, an officer who had been involved in another earlier preliminary step happened to be involved in it (together with some other officers).

44.As far as the “vertical” side of counsel’s argument is concerned, far from indicating that there was any apparent bias on the part of Mr K K Ng or anyone else against the Applicant, the full history of employment of the Applicant was wholly consistent with what happened in the last few years of his service in the government.

45.On the facts, numerous reports, coupled with verbal or written warnings and counselling had been written, given or tried, all with a view to helping the Applicant to improve his work performance and giving him further opportunities to remain in his job.  Regardless of whether the views of the Applicant’s superiors could be considered as favourable or adverse to the Applicant, those views were carefully set out, discussed and debated by the senior officers in the reports and records. 

46.The Applicant may or may not agree with those views.  But to suggest and argue, as the Applicant and his counsel have done in these proceedings, that because those responsible eventually took a view unfavourable to the Applicant, they or some of them must have been biased or apparently biased against him does not do justice to the amount of efforts and work that those who have had the opportunity of working with and supervising the Applicant throughout the years have expended and done in relation to assessing his work performance and helping him to improve.

47.It is regrettable that the charges of apparent bias and actual bias have been made in these proceedings.  I wholly reject them.

Irrationality

48.Lastly in relation to irrationality of the assessments (as reviewed and downgraded), I think it must be clear from the above discussion that I do not accept this ground of challenge. 

49.The onus that the Applicant has to overcome on this ground of challenge is heavy.  It is trite that in judicial review proceedings, the court is decidedly not concerned with the merits of the decision.  It is only when the decision in question can be said to have been Wednesbury unreasonable, irrational or perverse that the court would intervene. 

50.I have already explained that the downgrading decisions were made after careful deliberations by those responsible.  They were consistent with the past service record of the Applicant in the government.  The fact that a particular officer (Mr Angus) took a favourable view of the Applicant’s overall performance does not make the downgrading decisions or the assessment and review decisions perverse or irrational. 

51.At the hearing, counsel has not been able to point to this Court any factor, other than Mr Angus’ favourable initial gradings, in support of her argument.  I can find no good argument in the papers either.  Reports after reports have been written and warnings after warnings given regarding the Applicant’s work performance.  Counselling was rendered with it view to help improve his performance. 

52.Bearing in mind the limited role played by the Court in this judicial review application, I have no difficulty in rejecting the suggestion that the assessments and reviews were irrational or perverse. 

53.Furthermore, the relevant history and views have been summarised and fairly placed before the Chief Executive, who no doubt must have given all pertinent views including the written representations of the Applicant their due weight, before he reached the decision to retire the Applicant (– which was not a disciplinary decision or punishment as such, but merely a censure as to competence).  I do not see any leeway for challenging that decision on the ground of irrationality (and strictly speaking, there is no such challenge on that ground – the challenge is directed to the underlying assessments and reviews). 

54.On the facts of the present case, I am prepared to hold (if necessary) that even if there had been made any irrational assessments or reviews – which I do not accept, the same were remedied and sanctified, as it were, by the section 12 procedure and the decision of the Chief Executive. 

55.I therefore reject counsel’s last argument.

Outcome

56.For all the above reasons, the application for judicial review is dismissed.  I make a costs order nisi that the costs of the proceedings be paid by the Applicant to the Respondent; such costs are to be taxed if not agreed.

57.It must be apparent from the above that Miss Chiu has had a most difficult case to run – she has tried her best but there really was very little that she could usefully do on behalf of her client.  As for Mr Ismail, I thank him for his very helpful written as well as oral submissions.  I hope I will be forgiven for not mentioning directly in this judgment many of his excellent points made in his submissions.

Ms Yvonne Y H Chiu instructed by Messrs Peter W K Lo & Co., for the Applicant

Mr Anthony Ismail instructed by the Secretary for Justice, for the Respondent