Martin Tao Ming Lee v. Secretary for The Civil Service and Another

HCAL 82/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 82 OF 2010

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BETWEEN

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Before: Hon Saunders J in Court

Date of Hearing: 29 July 2011

Date of Decision: 8 August 2011

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D E C I S I O N

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Introduction

1.This application for leave to bring judicial review proceedings is brought by Mr Tao in relation to a decision that he should retire from the Public Service on the grounds of persistent sub-standard performance.

2.The Form 86, filed on 13 August 2010, and prepared by Mr Tao in person, identified three decisions sought to be challenged by Mr Tao.  They are:

(i) a decision of the Chief Executive (CE), made following submissions made by Mr Tao under s 20 Public Service (Administration) Order, (PS(A)O), conveyed to him by a letter dated 21 February 2007, directing him to retire in the public interest pursuant to s12 PS(A)O on the grounds of persistent sub-standard performance; (the 1^st decision)

(ii) a decision of the CE conveyed to Mr Tao by a letter dated 19 May 2010 upholding the decision of 21 February 2007, upon consideration of Mr Tao’s further representations, purportedly made under section 20 PS(A)O; (the 2^nd decision)

(iii) a decision conveyed to Mr Tao by letter dated 21 July 2010 informing Mr Tao that the Chief Executive’s Office has nothing to add on Mr Tao’s further representations made on 1 June 2010; (the 3^rd decision).

3.The “home-made” grounds of the application for leave to bring judicial review proceedings against these three decisions are as follows:

(i) Mr Tao was refused legal representation by the CE’s letter dated 26 August 2009;

(ii) the three decisions were made against the rules of natural justice and were vague and arbitrary, and in particular, in making the decisions the CE could not comment on or make any finding as regards a neck injury suffered by Mr Tao;

(iii) the CE did not apply the correct test of apparent bias or standard of proof;

(iv) the process under ss 12 & 20 PS(A)O is in breach of Article 10 of the Hong Kong Bill of Rights and s 8(3) PS(A)O because:

(a) the decision-makers were not independent, and judicial review would not cure the perception of apparent bias;

(b) the fact-finding mechanism process under ss 12 & 20 PS(A)O is deficient in that there was no oral hearing and the entire process was conducted by correspondence

(v) the CE and the Secretary for the Civil Service (SCS) failed to disclose to Mr Tao:

(a) the recommendation by the Electrical and Mechanical Services Department (EMSD), if any, to the CE;

(b) the advice of the Public Service Commission.

4.Upon counsel being instructed, an amended Notice of Application was filed on 28 July 2011, the Respondents sensibly making no objecting.  The amended notice identified the same three decisions as the decisions and the challenge.  The grounds were amended to constitute, as I understand the 11 pages:

(a) That the raw data contained in the Applicant’s appraisal reports for the period 1 May 2005 to 30 April 2006 was so significantly, critically and wrongly misapprehended, that it resulted in three successive overall performance ratings of “poor”, (1 May 2005 to 31 August 2005), “poor”, (1 September 2005 to 28 February 2006), and “unsatisfactory”, (1 March 2006 to 30 April 2006), and that consequently the decision to retire Mr Tao from the Public Service was Wednesbury unreasonable.

(b) That the failure of the SCS, in reliance upon s 10 Public Service Commission Ordinance, Cap 93, to disclose to the applicant of the advice of the Public Service Commission to the SCS, supporting the recommendation that Mr Tao should be retired in the public interest, was incompatible with Article 10 of the Hong Kong Bill of Rights Ordinance. It was also argued that consequently the failure to disclose the advice constituted an improper ex parte communication with the decision maker which was not disclosed to the applicant.

The steps taken by Mr Tao

5.The key decision, of the three decisions set out in paragraph 2 above, is plainly the 1^st decision, that conveyed to Mr Tao on 21 February 2007, requiring him to retire in the public interest.  Mr Tao did not challenge that decision at that time, and in July 2007, as required, retired from the public service. 

6.Mr Tao took no further steps in the matter until 17 April 2009, over two years after the 1^st decision, when he purported to file “further representations”, and invited the CE to reconsider the matter.  That resulted in the 2^nd decision on 19 May 2010.  Subsequent to that, on 1 June 2010, Mr Tao submitted yet further representations leading to the 3^rd decision.

The issue of delay

7.An application for judicial review must be made promptly, and in any event within three months from the date when the grounds for the application first arose, unless the court considers that there is good reason to extend the time: RHC O 53 r 4.

8.The court will not permit an applicant to “resurrect” an old decision, simply by asking the decision maker to reconsider the application, and thereby artificially bring himself within time, by relying upon the reconsideration decision.  That is plain from the decision in Lo Siu Lan v Hong Kong Housing Authority CACV 378/2004, (unreported 17 December 2004).  Mr Tao cannot assist himself in respect of the delay by relying upon either the 2^nd or the 3^rd  decisions.  While it may well have been open to Mr Tao to make representations to the CE under the provisions of s 20 PS(A)O, it was open to him to have immediately sought judicial review of the decision that he should retire.

9.Instead he took no steps for two years and two months when he then invoked s 20 PS(A)O.  No explanation has been offered for that delay other than that Mr Tao was at that stage representing himself and did not understand the procedure.  Some leniency will always be extended to unrepresented litigant, but where the delay is two years and two months, without any other explanation, the delay has reached a point where it is beyond rescue by the extension of leniency.

10.The delay alone is sufficient to dispose of this application for leave which must be refused.

The substantive grounds

11.An applicant for leave to apply to judicial review must show a reasonably arguable claim which enjoys a realistic prospect of success: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I accept Ms Tong’s submission that, on the materials before the court, it is plain that there is no arguable case for judicial review, and the grounds raised by Mr Collins for Mr Tao are wholly unsustainable.

Wednesbury unreasonableness

12.The essence of Mr Tao’s complaint, as it was put to me by Mr Collins, is that at an interview following the preparation of his staff report for the period 1 May 2005 to 31 August 2005 the appraising officer agreed to amend certain of the performance ratings and to upgrade the performance from “poor” to “moderate”.  To support this argument he relied upon a copy made by Mr Tao of the performance report shortly after the interview.  The copy submitted purports to show the upgrade of the performance assessment to “moderate”.  The evidence shows, from a copy of the original performance appraisal, that the appraising officer did amend certain of the ratings.  But it is absolutely clear that he did not alter the assessment from “poor” to “moderate”.

13.Mr Tao acknowledges that the marking adjacent to the rating “moderate” on the copy of the report submitted by him was made by him.  Where the appraising officer amended ratings, he carefully initial those amendments. That is clear from the Departmental file copy of the report.

14.The evidence also establishes that Mr Tao was fully aware of that situation very soon after the report was completed.  On 19 November 2005, EMSD wrote to Mr Tao and gave him a formal warning that he was at risk of being compulsorily retire.  The letter, in its opening sentence, recorded that his report had assessed his overall performance as “poor”.  Mr Tao did not challenge that and assert then that there had been an amendment to the report.

15.On 6 December 2006, the Civil Service Bureau wrote to Mr Tao informing him that consideration was being given to requiring him to retire in the public interest.  Again the letter referred to the special report covering the period 1 May 2005 to 31 August 2005 with the overall performance grading was “poor”.  Again Mr Tao did not challenge that statement.

16.In those circumstances it is not reasonably arguable by Mr Tao, either that he was informed by the appraising officer that the grade was changed, but that the appraising officer failed to endorse that change on the report, or that Mr Tao was in any way misled by the report.  It is equally not arguable that having regard to the fact that between May 2003 and November 2003, Mr Tao’s performance was rated as “poor”, between December 2003 and April 2005, as “moderate”, between May 2005 and February 2006, as “poor”, and March 2006 to April 2006, as “unsatisfactory”, no reasonable decision maker could have concluded that it was inappropriate to retire Mr Tao in the public interest.

17.In so far as the argument seeks to assert that the raw data cannot be reconciled with the overall performance ratings, I accept Ms Tong’s submission that an overall performance rating is not a purely arithmetic exercise in adding or averaging the ratings of individual activity items, but an overall assessment required to be made by the appraising officer and the countersigning officer.  In this particular case the appraisal reports have been reviewed by an Assessment Panel, and an Independent Panel.

18.There is nothing at all in the evidence to show that the decisions involving the assessment of the individual activity items resulting in an overall performance rating were, in the classic Wednesbury[1] phrase, so unreasonable that no reasonable person could have reached them.  In the whole of the circumstances it is not reasonably arguable that Mr Tao’s performance, as disclosed by the various performance reports, was such that a decision to retire him in the public interest was a decision to which no reasonable decision maker could have come.

19.It is appropriate that I should remind Mr Tao that is not the task of the court in judicial review to examine the merits of the decision under challenge, and if it considered it would have reached a different decision, to substitute that decision.  The task of the court is to examine the procedure by which the decision is made.  If the proper procedure has been followed, and if the decision maker has applied the proper criteria, and not taken into account improper matters, then even if the court itself might have reached a different decision, the decision must stand.

The nondisclosure point

20.It is right that the advice of the Public Service Commission was not disclosed to Mr Tao until virtually the day prior to the hearing.  I bear in mind that the decision to retire Mr Tao was a decision that was made prior to the decision of the Court of Appeal in Siu Chi Wan Vincent v Secretary for the Civil Service HCMP 1907/2009, (unreported 12 November 2009, in which the Court of Appeal indicated that such advice ought to have been disclosed.  The disclosure of the advice of the Public Service Commission in similar cases should now be a matter of course.

21.As is quite plain from Siu Chi Wan Vincent, the merits or benefit to the applicant, arising from the document that was not disclosed are important.  It must be shown, if the argument is to succeed, that the content of the document is such that it would have a material bearing on the decision which was being challenged.  Cheung JA said this at §18:

“The merits of the appeal on non-disclosure in the first instance is not simply a discourse of academic interest because at the end of the day the document is required to be disclosed must be shown to have a material bearing on the decision which was being challenged. Even now Mr Kwok is unable to advance any argument on how the advice will have an impact on the outcome of the case beyond stating in vague terms that the late disclosure ‘gives rise to a reasonable suspicion that there could be something else which ought to have been but was not disclosed. If the minute itself would not have affected the result, there may well be something else which would’.”

22.Mr Collins relied upon the following paragraph from the advice of the Public Service Commission:

“2. Having examined TAO’s staff report file, the Commission noted that his performance during the probationary period was not very satisfactory. His low effectiveness and efficiency at work, and deficiency in written work were already identified by the Appraising Officer (AO) in 1991. It was also noted that TAO had made no improvement in these areas of work despite repeated warning/advice given by his supervisor. Serious doubt on his suitability of passing the probation and efficiency bar should have been raised at the material time. Given the AO’s adverse comment on TAO’s performance, the Department should at least have extended TAO’s probationary period to further observe his performance before his passage of the probation and efficiency bar. The Department should be reminded to adopt a more prudent approach when handling similar cases in future and of the importance of honest reporting.”

23.It is absolutely plain that there is nothing in this document which can assist Mr Tao in the contentions that he seeks to make.  The passage relied upon by Mr Collins is a criticism of the conduct of the Department as long ago as 1991, and if anything serves only to underline the hopeless position that Mr Tao was in by 2006.

24.There may well be some merit in the constitutional point raised by Mr Collins, but the court does not deal with hypothetical situations.  If there had been something in the advice which might have impacted upon the decision to retire Mr Tao in public interest, there might be a reasonably arguable grounds for judicial review.  But in the absence of any possible advantage to Mr Tao from the point, the ground is without merit.

Conclusion

25.Both because of the delay in bringing the proceedings, and because there are no reasonably arguable grounds which enjoy a realistic prospect of success, the application for leave to apply for judicial review must be refused.

Costs

26.Ms Tong made it clear that the Respondents would seek costs.  To be retired in the public interest on the grounds upon which Mr Tao was retired would be a heavy blow to any person.  Notwithstanding the justification for the requirement to retire, one immediately has a good deal of sympathy for such a person.  If there had been any reasonable argument that could be mounted on his behalf, I would not have hesitated to grant leave.  Mr Tao commenced these proceedings without advice, because he could not afford then to obtain advice.  Mr Collins has done the very best he could to assist Mr Tao at a very late stage in the proceedings and I am grateful to him for that assistance which has simplified and clarified the issues.

27.This may well be a situation where the SCS may take the view that having to respond to an application for leave for judicial review is a necessary incident of being an employer, and take the benevolent view that when the personal consequences to him of the decision to retire Mr Tao are taken into account, it would be unreasonable to punish him further now by seeking costs.

28.In those circumstances I make an order nisi that each party will bear their own costs, and invite the SCS to consider my comments.  I am confident that taking that benevolent view in a case such as this would not be a circumstance which would be likely to open a floodgate to similar unmeritorious applications.

Mr James Collins instructed by Messrs Henry Wan & Yeung for the Applicant

Ms Sara Tong, instructed by the Department of Justice, for the 1^st and 2^nd Respondents