Re Kum Chun Tong

HCAL 46 / 2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 46 OF 2010

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Before : Hon Au J in Court

Date of Hearing: 25 November 2010

Date of further submission of evidence: 2 December 2010

Date of Judgment: 11 January 2011

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DECISION

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A.   Introduction

1.The Applicant is formerly an immigration officer of the Immigration Department.

2.This is the Applicant’s application for leave to apply for judicial review of the decision (“the Decision”) of the Secretary for Civil Service (“the Secretary”) dated 29 January 2010 in upholding the decision (“the Director’s Decision”) of the Director of Immigration (“the Director”) dated 25 March 2009 to order him compulsory retirement with a deferred pension plus a fine equivalent to reduction in salary for one increment for 12 months in punishment for his conviction of an offence of indecent assault.

B.   Brief background

3.The Applicant was convicted of indecent assault in February 2007 after trial.  The victim was his subordinate and the incident happened in the workplace.  He was sentenced by the Magistrate to community service order for 180 hours.   The Applicant’s subsequent appeal against conviction was dismissed, and his further applications for leave to appeal to the Court of Final Appeal against his conviction were also dismissed by the Court of First Instance and the Court of Final Appeal respectively.

4.Subsequent to the conviction, the Immigration Department had held a disciplinary proceeding against the Applicant in relation to his conviction.  The Applicant had made representations in that proceeding. 

5.After the proceeding, in a letter dated 25 March 2009, the Director in the exercise of the authority delegated to him by the Chief Executive and having regard to the advice of the Public Service Commission, directed that the Applicant be punished by compulsory retirement plus a fine equivalent to reduction in salary by one increment for twelve months under section 11 of the Public Service (Administration) Order (i.e., the Director’s Decision”). 

6.The evidence presented before me shows that, in arriving at the Director’s Decision, the Director had considered, amongst other things, precedent cases (collectively, “the Precedents”) to look at the customary level of punishments for civil servants who had been criminally convicted. 

7.On 2 July 2009, the Applicant petitioned to the Chief Executive under section 20 of the Public Service (Administration) Order seeking a reconsideration of the Director’s Decision.  Between October and November 2009, the Applicant had made various further written representations and submissions in support of his Petition.  The Immigration Department had also made written representations under the Petition.

8.On 29 January 2010, the Secretary informed the Applicant in a letter of his decision (i.e., the Secretary’s Decision) to uphold the Director’s Decision.

9.In April 2010, the Applicant brought the present application for leave for apply for judicial review of the Secretary’s Decision. 

C.   The present application for leave

10.In his Form 86, the Applicant only seeks to challenge the Secretary’s Decision but not the Director’s Decision.  But looking at the grounds of the challenge, I am prepared to treat the intended application as also seeking to review the Director’s Decision when I assess whether leave should be given.

11.It is now established that leave would only be given to apply for judicial review if the proposed ground of challenge is reasonably arguable with a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, paras 12-16 (at 685A-686B) per Li CJ.

12.The fundamental and principal ground of challenge of the Secretary’s and the Director’s Decisions in the intended judicial review application is that the punishment made against the Applicant is not consistent with the Precedents.   The Applicant has made detailed submissions to analyse these Precedents and sought to show that the punishment of compulsory retirement plus the fine in these Decisions is clearly not consistent with any of these Precedents.   This, he submits, is in violation of the principle of like cases should be treated alike and the principle of consistency.  The Decisions are therefore wrongful in law.

13.I do not think this is reasonably arguable.  

14.Although the Director had taken into account of the Precedents in coming into the Director’s Decision, it is clear from the evidence before me that this is only but one of the factors he had looked at as a reference in deciding what was the level of appropriate punishment that should be made against the Applicant after assessing all the circumstances of the matter.  The Director had also considered the nature and gravity of the offence^[1], the Applicant’s service and disciplinary records, including all the relevant mitigating circumstances and representations made by the Applicant^[2].

15.Moreover, the principle of like cases should be treated alike cannot be taken too far or too strict and must be viewed against the notion that each of the Precedents must be looked at against their own respective facts and circumstances.

16.When one looked at all these factors (including the Precedents) in the present case that had been taken into account by the Director, I am of the clear view that it is within the proper exercise of the Director’s discretion in concluding that the punishment made in the Director’s Decision was an appropriate one.   There is no question that the decision was wrongfully made in law.

17.This would apply with equal force to the Secretary’s Decision.

18.The second ground raised by the Applicant is that the Decisions are Wednesbury unreasonable or irrational in light of the Precedents or the circumstances of his case.

19.In light of the circumstances of the matter and the factors that had been taken into account by the Director as shown to me in the evidence (and summarized above), I do not think it can be argued that no reasonable persons in the position of the Director could come to the Director’s Decision.  The same again applies to the Secretary’s Decision.  I would also therefore dismiss this ground as not reasonably arguable. 

20.Finally, the Applicant also says the Secretary had failed to address or respond to certain parts of his Petition^[3] to the Chief Executive.  Presumably, the Applicant is suggesting that had these parts been properly addressed or responded to, the Secretary could not have reasonably come to the Secretary’s Decision.

21.The parts that the Applicant says the Secretary had overlooked or omitted to take into account are again the Applicant’s analysis and submissions on the alleged inconsistency or disparity between his punishment and the Precedents.  

22.After looking at the evidence placed before me, I doubt it is the case that the Secretary had somehow overlooked these parts of the Petition, as they formed a fundamental aspect of it and had been reiterated and repeated by the Applicant in his subsequent correspondence with the Civil Service Bureau.  But in any event, even if the Secretary had overlooked these parts of the Petition, for the same reasons explained above, I do not think it is reasonably arguable that the Secretary could not have reasonably come to the Secretary’s Decision had these parts been properly taken into account. 

23.There are thus also no arguable merits in this proposed ground of judicial review.

D.   Conclusion

24.I see no arguable grounds in the proposed judicial review application, and would refuse to grant leave to the Applicant as sought.

The Applicant, acting in person, present