Yeung Tin Leung, Vincent v. The Chief Executive

CACV 179/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 179 OF 2005

(ON APPEAL FROM HCAL NO. 90 OF 2003)

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BETWEEN

Before : Hon Cheung JA, Yuen JA and Chu J in Court

Date of Hearing : 11 July 2006

Date of Judgment : 11 July 2006

Date of Reasons for Judgment : 14 July 2006

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving reasons for judgment of the Court) :

The appeal

1.This is the applicant’s appeal against the judgment of A Cheung J who dismissed his application for judicial review against the decision of the Chief Executive.  The applicant was a civil servant at the Architectural Services Department (‘ASD’).  The Chief Executive had directed him to retire in the public interest under section 12 of the Public Service (Administration) Order.

2.The applicant who was legally represented at the court below filed his notice of appeal in person.

The amendment

3.On 3 July 2006 an inter partes summons was issued by Messrs. Francis Kong & Co. (who had since became the applicant’s solicitors) to amend the Notice of Appeal to replace the existing grounds of appeal with the following :

‘ The learned Judge erred in omitting to hold that the s.12 procedure followed by the Chief Executive was procedurally unfair as contended in paras. 33 to 41 ofthe applicant’s written submission of 23^rd April 2004 in that:

(a) No oral hearing was offered at which numerous disputes of fact could have been resolved

(b) There was no provision for a hearing and determination of recommendation by an impartial and independent panel or adjudicator

(c) The Respondent failed to disclose to the applicant:

(i) The Architectural Services Department recommendation of 20^th December 2002

(ii) The advice of the Public Service Commission

(iii) The recommendation of the Respondent to the Chief Executive

(iv) The Respondent failed to submit the applicant’s written representations together with its own recommendation to the Chief Executive.’

4.The written submission that was referred to above was prepared by the then counsel of the applicant Mr. Osmond Lam. The proposed new grounds of appeal were also substantially covered in the Amended Notice of Application for Judicial Review (Form 86A) dated 26 January 2005 (‘the Amended Notice’).  In the Amended Notice the respondent was stated to be the Secretary for the Civil Service.

The abandonment

5.On the day of the hearing before the judge, the new counsel for the applicant, Ms Yvonne Chiu obtained leave from the judge to amend the name of the Respondent to that of the Chief Executive.  However, while the decision that was challenged was that of the Chief Executive who directed the applicant to retire from the civil service, Ms Chiu had expressly abandoned any challenge to the propriety or fairness of that decision.  Instead the challenge was directed at the decision-making process of the ASD which led to the decision of the Chief Executive.  This is apparent from the transcript of the hearing before the judge which this Court had called for.  On this basis the judge heard the case and dismissed it.

6.The proposed grounds of appeal now sought to be relied upon are those that had been expressly abandoned by counsel below.  There is no allegation that counsel had acted without instructions.  On the contrary, it is apparent from the transcript that counsel had asked for adjournments from the judge in order to take instructions before the case finally proceeded with the arguments as framed by her.  In the proposed grounds of appeal, there was no challenge to the decision of the judge dealing with the grounds that were advanced below.

Amendment not allowed

7.This being the case we see no justifiable reason why the applicant should be allowed to rely on points which he had abandoned and which were not the subject matter of the decision.  Accordingly we refused the application to amend the Notice of Appeal with costs to the respondent.

Appeal dismissed

8.Faced with this decision, Mr. Tracy, counsel for the applicant at this appeal, indicated that he would not advance any other grounds of appeal.  That being the case we dismissed the appeal with costs to the respondent.

Mr. Maurice Peter Tracy, instructed by Messrs Francis Kong & Co., for the Applicant

Mr. Anthony Ismail, instructed by Department of Justice, for the Respondent