Tang Mei-ling Jenny v. Secretary of Justice

cacv 318/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 318 of 2004

(on appeal from HCAL NO. 85 of 2004)

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BETWEEN

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Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 11 March 2005

Date of Judgment: 11 March 2005

Date of Handing Down Reasons for Judgment: 18 March 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.In this matter the applicant appealed from the decision of Hartmann J of 11 October 2004 whereby, although he granted leave to apply for judicial review on the grounds of wrong procedure, he refused leave to apply on the grounds of breach of natural justice, unfair treatment and unreasonableness.  This court allowed the appeal and made an order permitting the applicant to apply for judicial review on the ground of unfair treatment.

2.It would be undesirable at this stage to say more than that some of the facts put forward by the applicant could be said to lead to the conclusion that it was unfair and unreasonable that the applicant should be made to retire compulsorily.  Those facts include the background that although the applicant has had a long history of bad punctuality apparently that works out at 8.6 minutes per day, which can hardly be regarded as excessive.  Indeed the seriousness of the lateness of arrival at work might be balanced by the fact that the applicant claims to have worked very long hours overtime without seeking overtime pay.  Furthermore, the applicant has made allegations that the person to whom she was required to report between 9 February and 31 March 2004 was himself late for work for up to 30 minutes each day.  Moreover the applicant alleges that there was lax discipline in respect of others employed at her place of work and some of them took long lunch breaks extending on occasions to two to three hours.

3.Coupled with that is the allegation that the applicant was the only person whose time of arrival in the morning was checked.  As the applicant succeeded in showing, on at least one occasion that checking was itself highly suspect.

4.In those circumstances I do not consider that it is impossible for the applicant to establish that the decision to retire her compulsorily was unfair and unreasonable in a similar way to that held by Seagroatt J in the case of Ko Mei Chun v Secretary of the Civil Service, HCMP 1112 of 1996, 18 July 1996.  Given the fact that the applicant has already been given leave to apply for judicial review, it seems appropriate that she should be granted leave to apply for judicial review on grounds that would appear to address one of her real grievances in the matter.

5.I would only add, as I attempted to indicate to the applicant in the course of the hearing, that it is essential that the applicant ensures that her case is properly prepared before the hearing.  Having regard to the way in which the applicant has prepared this appeal I can only say that it is strongly advisable that the applicant has legal assistance.  I fully appreciate that this might be beyond the means of the applicant to finance.  In those circumstances, and if the applicant cannot obtain legal assistance from other sources, it would be highly desirable that she gives careful consideration as to whether she should continue with these proceedings.  The costs involved may well be very substantial.  The risks involved in having to pay the costs of lawyers employed by the Secretary of Justice in the event that the applicant does not succeed may not be justified by anything that can be gained from a successful prosecution of the application for judicial review.

Hon Le Pichon JA:

6.I agree.

The Applicant/Appellant, in person (present)