Siu Chi Wan, Vincent v. The Chief Executive of the HKSAR and Another

HCA 1131/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1131 OF 2011

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D E C I S I O N

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1.This is an appeal by the plaintiff against Master Levy’s decision to strike out his writ and statement of claim and dismiss the action.

2.The plaintiff, Mr Siu, was formerly a Principal Officer of the Correctional Services Department, having begun his employment there on 22 April 1974.  On 21 February 2005 he was convicted on his own plea of the offence of a prescribed officer accepting an advantage without the permission of the Chief Executive, contrary to sections 3 and 12(2) of the Prevention of Bribery Ordinance (Cap 121).  The offence was committed by him by accepting an interest-free loan of HK$200,000 from the step-mother of a colleague who was an Assistant Officer II (ie a junior officer vis-à-vis the plaintiff), without any general or special permission of the Chief Executive.  He was sentenced to four months’ imprisonment suspended for a year.

3.On 29 April 2005, the Commissioner of Correctional Services wrote to the plaintiff stating that a recommendation that the plaintiff be dismissed would be made to the Secretary for Civil Service, as a delegate for the Chief Executive, for consideration of punishment under rule 255B of the Prison Rules (Cap 234A).  In response, the plaintiff’s solicitors made representations to the Chief Executive.

4.On 30 May 2005, the Secretary for Civil Service sought the advice of the Public Service Commission on the recommendation of the Commissioner of Correctional Services to dismiss the plaintiff.

5.On 24 June 2005, the Chairman of the Public Service Commission advised, after consultation with members of the Public Service Commission, that the recommendation to dismiss the plaintiff should be approved.

6.On 29 June 2005, the Secretary for Civil Service notified the plaintiff of the views of the Civil Service Bureau, inviting him to make further representations, if any, within 14 days.  On 13 July 2005, the plaintiff through his solicitors made further representations.

7.On 21 July 2005, the Secretary for Civil Service, exercising delegated authority from the Chief Executive, directed that the plaintiff be dismissed from the service pursuant to rule 255B(4) of the Prison Rules with effect from that date.  The plaintiff was also notified that, upon dismissal, he would forfeit all claims to any pension, gratuity and other benefits. 

8.Thereupon the plaintiff applied for judicial review of the Secretary’s decision in proceedings numbered HCAL 137/2005.  His application was eventually heard in June 2008 and rejected by Fung J on 8 July 2008.  Attempts by the plaintiff to appeal against that decision were unsuccessful.

9.The plaintiff then brought this action to claim against the Chief Executive and the Secretary for Civil Service principally for his lump sum pension and monthly pension benefits.  The original writ and statement of claim were signed by the plaintiff himself acting in person.  The Master struck them out and dismissed the action.  The plaintiff, who is now legally represented, has put forward a draft amended writ and draft amended statement of claim.  The issue before me is whether, on the basis of the proposed amended pleading, I ought to uphold the dismissal of the action or allow the claim as amended to go to trial.

10.As I understand it, the plaintiff’s claim is based in contract as buttressed by the provisions of the Pension Benefits Ordinance (Cap 99) (“PBO”).  The PBO is the relevant Ordinance because the plaintiff had in 1991 opted to join the new pension scheme, which was governed by the PBO, whereupon the Pensions Ordinance (Cap 89) ceased to apply to him. 

11.The plaintiff’s argument broadly runs as follows:

(1) The plaintiff has a right to pension benefits under the PBO; see s 5 of that Ordinance.  The PBO stipulates a process which has to be complied with before the plaintiff’s pension can be withheld from him.

(2) The prescribed procedure under ss 29A and 29B of the PBO was not followed in the plaintiff’s case.

(3) Under rule 254 of the Prison Rules, various punishments may be imposed by the Commissioner of Correctional Services and the Chief Executive respectively.  At the time in 2005, the Chief Executive could award, among others, the punishment of “dismissal”.  The rule did not specify that such dismissal would lead to the forfeiture of pension benefits.  While the rule was amended in 2009 to empower the Chief Executive to impose the punishment of “dismissal without retirement benefits”, this has no retrospective effect.

(4) Nor can the Government rely upon Civil Service Regulation 411 which states that “[o]n dismissal from the Service an officer forfeits all rights or advantages of his appointment, and no retiring benefits are granted to him”, because this regulation cannot prevail over the statutory provisions of the PBO or the Prison Rules.

12.In my view, on the proper construction of the PBO, rules and regulations, the plaintiff has no reasonably arguable claim for pension benefits.

13.So far as relevant for present purposes, the scheme of the PBO is divided into two parts.  First, sections 11 to 17 set out the circumstances in which pension may be granted to an officer.  The usual case concerning pension for normal service is dealt with in s 11.  S 11(1) provides as follows:

“(1) Unless otherwise provided in this Ordinance, no pension shall be granted to an officer except in respect of his service in a civil capacity under the Government and except-

(a) subject to section 27(2), upon his retirement on or after attaining his retirement age, and after completion of qualifying service of not less than 10 years;

(b) subject to section 27(2), upon his voluntary early retirement after completion of qualifying service of not less than 10 years-

(i) in the case of a serving officer to whom section 10(2) applies, on or after his attaining the age of 55 years;

(ii) in the case of a Scheduled officer of a directorate rank or senior rank to whom section 10(3) applies, on or after his attaining the age of 55 years;

(iii) in the case of a Scheduled officer of the rank and file grade to whom section 10(3) applies, on or after his attaining the age of 50 years;

(c) in the case of transfer to other public service-

(i) upon his retirement on or after attaining the age at which he is permitted by the law or regulations of the service in which he was last employed to retire on pension; or

(ii) upon his retirement in any other circumstances in which he is permitted by the law or regulations of the service in which he was last employed to retire on pension or gratuity,

but subparagraph (ii) shall not apply in the case of a female officer who retires for the reason that she has or is about to be married;

(d) upon his retirement on the abolition of his office, and after completion of qualifying service of not less than 2 years;

(e) subject to subsection (2), upon his retirement in the public interest, whether or not he has completed qualifying service of not less than 10 years;

(f) subject to subsection (2) and section 29(1)(a), upon his compulsory retirement in exercise of disciplinary powers of punishment by the Government, whether or not he has completed qualifying service of not less than 10 years;

(g) upon his compulsory retirement for the purpose of facilitating improvement in the organization of the department in which he is serving, by which greater efficiency or economy may be effected, and after completion of qualifying service of not less than 2 years;

(h) upon his retirement on medical evidence that satisfies the Chief Executive that the officer is incapable by reason of any infirmity of mind or body of discharging the duties of his office and that such infirmity is likely to be permanent, and after completion of qualifying service of not less than 5 years;

(i) upon his retirement in accordance with any compensation scheme, whether or not he has completed qualifying service of not less than 10 years;

(j) subject to subsection (2) and section 27(2), upon his resignation from the service, with the approval of the Secretary for the Civil Service, after completion of qualifying service of not less than 10 years; or

(k) subject to section 27(2), upon his retirement on attaining the maximum pension specified in section 21.”

14.Secondly, sections 27 to 29B set out provisions whereby a pension may be refused, or a pension already granted may be cancelled, suspended or reduced.  Thus, for example, s 27(1) provides that a designated officer may “(a) refuse to grant a pension to a person … or (b) cancel or reduce a pension granted to a person” if certain conditions apply.  Similarly, s 29(1) provides that where “an officer to whom pension has been granted” is convicted of certain offence, “the pension may be cancelled, suspended or reduced”.

15.It is true that s 5 of the PBO provides:

“Except as otherwise provided in this Ordinance, the entitlement to pension benefits shall be a right.”

“Pension benefits” is however defined to mean

“any pension, additional pension, dependant pension, death gratuity, commuted pension gratuity, short service gratuity or other benefits granted, payable or paid under this Ordinance” (underlining added).

S 5 does not confer an automatic right to pension on any officer in the service whose employment has been terminated for whatever reason.

16.To establish a right to pension, it is incumbent upon the plaintiff first to show that he falls within one or more of the criteria referred to in ss 11 to 17 which give rise to the eligibility for the grant of pension.  Only then does the question arise as to whether the power to refuse to grant a pension (such as in s 27(1)(a)) is engaged.[1]

17.It can be seen from ss 11 to 17 that a pension may ordinarily be granted only upon conditions linked, mostly, to the retirement of an officer.  S 11(1)(j) applies where an officer resigns from the service, with the approval of the Secretary for the Civil Service, after completion of the requisite years of service.  It is clear that there is no provision for a pension to be granted to an officer who has been dismissed from the service.  On that footing, there is no right to pension arising upon the termination of the plaintiff’s service as a result of the disciplinary action taken against him. It follows that his complaint that the procedure specified in ss 29A and 29B of the PBO has not been followed is misconceived.

18.Mr Wong who appears for the plaintiff submits that the plaintiff could have resigned in 2005 before he was dismissed, and this could lead to s 11(1)(j) becoming applicable.  In that case, if the plaintiff was to be refused a pension, s 27(2) of the PBO had to be satisfied and the necessary procedure gone through.  Be that as it may, this gives rise to no cause of action, in my view, because as a matter of fact the plaintiff did not resign.  In any event, s 11(1)(j) only applies where the resignation has the approval of the Secretary for the Civil Service.  Such approval was highly unlikely in the present case after the Commissioner became aware of the plaintiff’s misconduct.

19.As for the plaintiff’s reliance on the amendment to the Prison Rules in 2009 to add the words “without retirement benefits”, it appears that the purpose of the amendment was to deal with civil servants on the Civil Service Provident Fund Scheme, so as to render comparable the removal punishments impinging on retirement benefits as regards pensionable civil servants on the one hand and civil servants on the provident fund scheme on the other: see the Legislative Council Brief entitled “Disciplinary Framework for Civil Servants whose Retirement Benefits are provided under the Civil Service Provident Fund Scheme and Other Related Proposals” (CSBCR/DP/4-075-002/4). 

20.In any event, the amendment made in 2009 does not show that the plaintiff had any right to pension upon dismissal from the service.

21.It follows that I see no inconsistency between Civil Service Regulation 411 and the PBO or the Prison Rules.

22.There are in addition two small claims by the plaintiff for amounts representing alleged unpaid accumulated leave and salary withheld prior to his dismissal from the service.  These claims fall within the exclusive jurisdiction of the Labour Tribunal and should therefore also be struck out.

23.For these reasons the appeal is dismissed.  It is unnecessary to deal with the additional point relied on by the defendants, namely, that the plaintiff’s claim could and should have been, but was not, raised in the earlier judicial review proceedings and that for him to bring this action separately now is an abuse of the court’s process.

Mr Timothy M H Wong, instructed by Liu, Choi & Chan, for the plaintiff

Miss Abigail Wong, instructed by the Department of Justice, for the 1^st and 2^nd defendants