Ling Yuk Sing v. The Secretary for The Civil Service and Another

HCAL 92/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 92 OF 2007

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BETWEEN

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Before : Hon Hartmann J in Court

Date of Hearing : 7 January 2008

Date of Judgment : 7 January 2008

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J U D G M E N T

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1.This is an application for judicial review.  The applicant appears in person.  He is a civil servant.  He seeks an order quashing a punishment imposed upon him for the commission of a disciplinary offence committed in the discharge of his duties.  He does so on the basis that, in all the circumstances, the punishment is so wholly disproportionate to the seriousness of the offence and his personal situation as to be irrational.

2.The applicant has held the post of a housing officer for some 20 years or more.  In October 2004, he was employed as a housing officer in the Kwai Chung area.  One of his functions was the repossession of flats in public housing estates when tenants were in breach of their terms of lease.  One of the estates that fell under the jurisdiction of the applicant was Tai Wo Hau.

3.In or about July 2004, the applicant was informed by a senior officer that a flat in Tai Wo Hau had been left vacant in contravention of the lease agreement.  The applicant was asked to visit the flat at various times to check whether it remained unoccupied.  The applicant was informed that, if the tenant did not return, a notice-to-quit was to be served.  

4.In the result, on 6 October 2004, the applicant took a small team of Housing Department employees to the flat in order to repossess it.  The applicant directed that the padlock on the front door be broken and gained entry to the flat, effectively repossessing it.  However, no furniture or effects were removed from the flat.

5.When the applicant entered the flat, he was under the belief that a formal notice-to-quit had been served and that the time allowed under the notice had expired.  He was mistaken.  Several days later – the exact time is no longer certain – the applicant checked the file and discovered that a notice-to-quit had not been served.  His forced entry into the flat therefore had not only been contrary to the administrative direction of his superior but also contrary to law.

6.In this latter regard, the Housing Ordinance, Cap.283, regulates the control of public housing estates.  S.19(1)(b) of that Ordinance, that being the section under which the applicant had acted, provides that —

“	(1)	Notwithstanding the terms thereof, the Authority [the Housing Authority] may terminate any lease-
		(a)	…
			(aa)	…
		(b)	otherwise, by giving such notice to quit as may be provided for in the lease or 1 month’s notice to quit, whichever is the greater.”  [my emphasis]

7.S.19 goes on to provide that :

“

(2)

Upon the termination of a lease under subsection (1), the tenant shall, if he is still occupying the land, be a trespasser thereon.”

8.S.20, however, provides a safeguard for tenants.  It provides that a tenant in receipt of a notice-to-quit may appeal and have the matter determined by a statutory tribunal.  It does not necessarily follow that the fact that a flat has been left vacant means that a notice-to-quit is of no practical consequence.  Even if the tenant is not there, neighbours, friends or relatives may become aware of the notice and advise him.  A notice-to-quit issued pursuant to the Housing Ordinance is therefore a procedural provision of real importance.

9.When the applicant discovered that he had entered without a notice-to-quit having been served, it appears that he discussed matters with his colleagues, seeking some way to make good the error.  However, he did not commit himself to paper, stating that entry by force had been effected despite the fact that no notice-to-quit had been served and seeking instructions as to the best way forward.  In this regard, in a minute dated 29 October 2004, a senior Housing Manager said the following :

“	We have no idea of how the tenant will respond in this incident/case.  But the Housing Department cannot and should not cover up its staff’s mistake in carrying out his works.”

10.As it is, an anonymous letter was sent to the Secretary for the Civil Service complaining at the manner in which the aftermath of the forceful entry into the flat was being handled.  This resulted in disciplinary proceedings.  In this regard, s.9 of the Public Service (Administration) Order reads :

“	(1)	If it is represented to the Chief Executive that an officer has been guilty of misconduct, and the Chief Executive is of the opinion that the misconduct alleged is not serious enough to warrant proceedings under s.10, he may cause an inquiry to be made into the officer’s conduct in such manner as may be prescribed by regulations made by the Chief Executive under section 21(2).
	(2)	If after such inquiry the Chief Executive is of the opinion that the officer has been guilty of misconduct, he may inflict such punishment, other than dismissal or compulsory retirement, upon the officer as may seem to him to be just.”

11.An inquiry pursuant to s.9 was conducted in late 2006, the charge against the applicant being couched in the following language :

“

You, Mr LING Yuk Sing, misconducted yourself whilst you were employed as a Housing Officer at the District Tenancy Management Office (Sheung Kwai Chung 2) of Housing Department, in that you broke into Flat 712, Fu Kwok House, Tai Wo Hau Estate on 6 October 2004 without completing the procedure of issuing a Notice-to-quit as instructed by Ms BONG Kui-fhui …”

12.In January 2007, the inquiry found that misconduct on the part of the applicant had been established.

13.The matter then went before the Permanent Secretary for Transport and Housing (Housing) for the determination of a suitable punishment.  Opportunity was given to the applicant to make representations.  In a letter dated 13 July 2007, the applicant was advised of the punishment that was imposed upon him.  The final paragraph of that letter reads as follows :

“

Having considered the nature and gravity of the misconduct and your position in the service as well as all relevant mitigating circumstances including a representations made in your e-mails of 16 March 2007, 3 July 2007 and 9 July 2007, the Permanent Secretary for Transport and Housing (Housing), in exercise of the authority delegated from the Chief Executive and on the advise of the Public Service Commission, has directed that you be punished by severe reprimand and a fine equivalent to reduction in salary by one increment for 12 months …”

14.A severe reprimand will normally debar a civil servant from promotion for three to five years.  It is a punishment reserved normally for more serious misconduct.

15.In respect of the financial penalty, the applicant had to suffer a reduction of one incremental point for period of 12 months.  It is estimated that this amounted to a loss of salary of about $1,500 per month for that 12-month period, a total of some $18,000.

16.It is the applicant’s case that this punishment was wholly disproportionate the seriousness of his misconduct and his moral culpability.  His misconduct, he has argued, cannot be categorised as serious.

17.As to the relevant circumstances, the applicant emphasised the following :

(i)	He did not act wilfully.  His offence was one of negligence.
(ii)	He had not been negligent in this fashion before.
(iii)	When he was first asked to keep the flat under observation, he had extended the time of the observation in order to safeguard the tenant’s rights.
(iv)	When he entered the flat he knew it was vacant.
(v)	The only physical damage was to a padlock.
(vi)	When the tenant did eventually return to the apartment, matters had been restored to full legality.  The tenant, therefore, suffered no actual prejudice.

18.These are all matters of importance.  But there is nothing to suggest that they were ignored by the Permanent Secretary.

19.While there was no actual prejudice in this case, there was clearly potential prejudice.

20.But the real seriousness of the applicant’s neglect lay in the fact that it resulted in him acting contrary to law.  It was his duty to ensure that the rights of tenants were not abused and, to put it bluntly, he failed in that duty.

21.The duty imposed on the applicant was not onerous.  It was simply to check the file before he took action to ensure, first, that a notice had been served; second, that the time allowed had expired and, third, that was no evidence of any appeal under s.20 of the Housing Ordinance.  The applicant, however, neglected entirely to check the file.

22.The applicant has complained that he was guilty of nothing more than an oversight.  But an oversight may – and often does – constitute misconduct and, as I have said, may have the gravest of consequences. 

23.I confess that, if I had been in the shoes of the Permanent Secretary, I might have imposed a less severe punishment.  But it is for those in the civil service to determine how best it should be run and how best matters of discipline are to be enforced.  This court must act with caution before imposing its own views.

24.As I have explained to the applicant, I do not sit as a Court of Appeal balancing the merits of the sentence.  My jurisdiction is to ensure the lawfulness of the punishment imposed.  If the punishment is so unduly oppressive as to be perverse then it will be unlawful.  Yes, it is true that I consider the punishment severe.  But severity alone does not make it perverse.  It does not make it irrational.

25.Bokhary JA, as he then was, defined the test in Au Yeung Kwok Hing v. Attorney General, unreported, CACV 205/1994 by saying that in judicial review a court will only intervene :

“	if the punishment is severe beyond any rational relationship to the seriousness of the offence and the situation of the offender.”

26.The applicant has pressed his case well.  But I am simply unable to conclude that the punishment imposed on him was, in all the circumstances, as Bokhary JA expressed it, so severe that it bore no rational relationship to the seriousness of the misconduct itself and to the applicant’s situation.

27.I would add that, in looking to all the circumstances, the applicant, I regret to say, has not been able satisfactorily to explain why, when his mistake was known, he did not reduce matters to writing and seek instructions.  His conduct in this regard may have been viewed as aggravating.  In this regard, the advice given to the Permanent Secretary included the following observation :

“	The seriousness of his misconduct is further aggravated in the sense that after he had discovered his fault, instead of reporting to his supervisor immediately, he tried to cover up the fact by asking his supervisors to issue the NTQ without mentioning that the flat had in fact been broken into.”

28.By way of a postscript, mention must be made of the fact that the applicant had open to him an avenue of appeal by way of making representations to the Chief Executive.  However, he chose not to follow this route and chose instead to seek judicial review.  As to why he did this, the applicant said that he did not have sufficient trust in the internal civil service process of appeal.

29.It is a basic principle, however, that, save in exceptional circumstances, of which this is not one, judicial review will not be considered until, and unless, other appropriate avenues of remedy have been used.  The applicant was informed that he could make representations to the Chief Executive.  But, as I have said, he chose not to do so.  Ironically, the discretion vested in the Chief Executive to alter the punishment would be far wider than that of this court.  The applicant therefore not only placed a procedural difficulty in his path by seeking judicial review, he attempted to secure a more limited jurisdiction.

30.For the reasons given, this application must be dismissed with costs.

Applicant, in person

Mr Clifford Tavares, GC of Department of Justice, for the Respondents