In Re Man Yau Ho Cedric

CACV000169/1995

1995, No. 169

(Civil)

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IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Hon Nazareth V.-P., Bokhary & Liu JJ.A. in Court

Date of hearing: 19 September 1995

Date of handing down judgment: 29 September 1995

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Judgment

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Liu JA:

1. The applicant was directed to be dismissed by the Governor from civil service under Colonial Regulation 57 on the advice of the Public Service Commission with effect from 29 April 1994. The applicant's dismissal by the Governor was conveyed to him by a letter dated 28 April 1994 and sent on behalf of the Secretary for the Civil Service, in which the applicant was informed "that after careful study of the Investigating Committee's report", the Governor concluded that he had been guilty of misconduct. The applicant was allegedly absent from duty without leave for 140 days, between 8 October 1991 to 24 February 1992. After disciplinary investigation, he was found guilty. The Governor directed that he be dismissed. The applicant presented his 24-page Representation to the Governor, which was rejected. The applicant sought leave from Jerome Chan, J to apply for judicial review of the Governor's dismissal of him under Colonial Regulation 57. The judge refused leave, and from that refusal, the applicant now appeals.

2. In 1991, the applicant resigned when he and his family emigrated to America. Financial and other difficulties were encountered in America, and on 8 August 1991 the Housing Department acceded to the applicant's request and allowed him to continue to serve as a Housing Officer. The applicant was thereupon required to report for duty at the expiration of his earned leave. As from 8 October 1991, he was accused of being absent without leave. The applicant was offered the option of resignation but he chose to face the disciplinary proceedings before the Investigating Committee. He was duly found guilty on 12 October 1993 by the Investigating Committee. On 28 April 1994, he was dismissed by the Governor under Colonial Regulation 57. On 4 August 1994, he applied for leave to judicial review his dismissal by the Governor. On 11 January 1995 he presented his Representation to the Governor against his dismissal. That Representation was rejected on 10 April 1995. On 3 July 1995 his application for leave to apply for judicial review was heard by Mr Justice Jerome Chan who refused leave on the same day. On 24 July 1995 Notice of Motion was filed in this appeal. He appeared before us on 19 September 1995.

3. In his Notice of Motion, the home-made grounds may be liberally read as complaining:

(1) that the judge was wrong in refusing leave;

(2) that the judge was wrong in considering his dismissal by the Governor in isolation without paying any proper regard to the alleged flaws in the role played and the procedure adopted by the Investigating Committee;

(3) that the judge failed to appreciate the nexus between his dismissal by the Governor under Colonial regulation 57 and the disciplinary proceedings before the Investigating Committee;

(4) that the judge failed to consider the application for leave with detachment;

(5) that the judge failed to have any proper regard to the medical reports, particularly the latest medical report of Dr Lee dated 15 November 1994

(6) that the judge failed to evaluate, wholly or fully, the evidence before him; and

(7) that the judge harboured a preconceived notion that the application could not succeed.

4. The issue is a plain and simple one. The question was whether the applicant was guilty of being absent without leave for 140 days from 8 October 1992 to 24 February 1995. Few lay tribunals are expected to run into difficulty in entertaining such an uninvolved inquiry. However, the Investigating Committee is sought to be censured on the grounds upon which the applicant intends to apply for judicial review of the Governor's direction. Put another way, the dismissal of the Governor is challenged for the flaws of the Investigating Committee. I turn first to the facts. The applicant maintains that for the 140 days between 8 October 1992 to 24 February 1995, the Housing Department should have granted him the indulgence for (1) his neck pain and/or (2) his wife's threats to leave him if he returned to report for duty in Hong Kong. I need not say how ludicrous it was, in the uneventful circumstances of this case, to rely on these threats of his wife. Coming to the other reason, neck pain, he claimed that in a long distance call to Mrs Chan of the Housing Department on 2 October 1991 (3 October 1991 for Hong Kong), the question of his neck pain was discussed. But in a letter dated 10 October 1991 despatched on behalf of the Director of Housing to the applicant, in which the gist of that long distance call with Mrs Chan was confirmed, the applicant's application was said to be confined to no-pay vacation leave. The applicant made no attempt to correct the version so confirmed. Moreover, in paragraph 3 of the applicant's own memorandum to the Director of Housing dated 19 June 1992, he wrote: "Very unfortunate my neck was hurt again in mid/late February 1992 and I had no other choice but to switch my plan of returning to Hong Kong as advised by my family doctors". An American Chiropractor stated in his report that the applicant consulted him in October 1991 but received treatment only several months thereafter, i.e. in early 1992. There is no evidence that the applicant complained of neck pain in October 1991 to anyone he consulted in America. However, in the prognosis in the later American medical reports the applicant was said to have possibly or likely suffered from neck pain since October 1991. But the unchallenged evidence is all one way. It is unsurprising that the Investigating Committee reached the conclusion they did.

5. The force of the applicant's administrative law complaints, real or imagined, loses much of its intensity when they are directed at his dismissal by the Governor. The letter dated 28 April 1994 sent on behalf of the Secretary for the Civil Service to the applicant was in these terms:

"With reference to the disciplinary investigation which was held on 12 October 1993, I have to inform you that after a careful study of the Investigating Committee's report, the Governor has concluded that you have been guilty of misconduct in that you were absent from duty without leave of permission from 8 October 1991 to 24 February 1992.

"Accordingly, the Governor, on the advice of the Public Service Commission, has directed that you will be dismissed from the service under Colonial Regulation 57 with effect from 29 April 1994. Upon dismissal, you forfeit all claims to any pension, gratuity or any other benefits or advantages of an officer."

6. The Governor had, "after a careful study of the Investigating Committee's report," acted on the advice of the Public Service Commission in dismissing the applicant. It would not necessarily follow from the Governor's reliance on the Investigating Committee's report that the Governor's direction to dismiss the applicant must be or must equally be reviewable, particularly when the Governor had the benefit of "a careful study" of the report and the advice of the Public Service Commission. It has not been demonstrated to us in what way and to what extent the Governor and the Public Service Commission allowed themselves to be improperly or unfairly influenced by the alleged shortfalls in the proceedings or conduct of the Investigating Committee. It is incumbent on the applicant to identify and formulate his legitimate complaints, but he has, in my opinion, failed to do so. The grounds for judicial review are exclusively referable to the inquiry of the Investigating Committee. How then is it possible to say that the Governor's direction to dismiss the applicant on the advice of the Public Service Commission is reviewable? This is the basis on which the judge reached his decision. I do not propose to deal specifically with what I understand to be the applicant's grounds of appeal. It can readily be seen that for these reasons alone, none of them is supportable. The decision of the judge is right.

7. There are two further routes by which the same conclusion may be reached. First, when the Representation was made to the Governor on 11 January 1995 in 24 pages in all, the three grounds on which the applicant proposed to apply for judicial review were fully canvassed in paragraph 3.3 at pp. 6 & 7 of his Representation (ground 1), paragraph 3.5 at pp. 7 & 8 of his Representation (ground 2) and paragraph 3.1 at p. 6 and paragraph 3.5 at pp. 7 & 8 of his Representation (ground 3). Dr Lee's report dated 15 November 1994 was also included for the Governor's consideration. In paragraph 8.4 at p. 23 of his Representation, the Governor was implored to instigate a re-evaluation of "the whole incident" by the Investigating Committee. It is inconceivable that the applicant's judicial review complaints, if legitimate, had not been cured by the Governor's personal or delegated consideration of his Representation. More importantly, the applicant has not shown how the Governor's decision taken on the applicant's Representation affirming his dismissal is susceptible to judicial review. "The statutory decision-making process must be viewed as a whole and, so long as the whole is fair, the individual should not be able to complain that a part of the process was flawed" per Woolf L.J. in the English Court of Appeal in Leech v. Deputy Governor of Parkhurst Prison, unreported, 6 November 1986. See "The Exhaustion of Alternative Remedis in Administrative Law", Clive Lewis, in The Cambridge Law Journal, March 1992, Vol. 51 Part 1 p. 138 at p. 144. In his failure to identify any criticism which may be levelled at the Governor's consideration of his Representation, it would not be right for the applicant to continue to suggest that his case has not at last been disposed of fairly and fully.

8. Further, not only has the applicant failed to disclose any or any valid grounds for a review court to interfere with his dismissal by the Governor and the Governor's rejection of his Representation, but taking a bird's-eye view of all the circumstances, for the reasons I am about to give it would have been futile to grant him leave to apply for judicial review. No plain errors of law is raised. Allegations of improper purpose or abuse form no part of the applicant's grievances. No distinct principle of public law is sought to be argued. The applicant's complaints are basically factual, primarily evolved from disciplinary practice. The alleged flaws at the Investigating Committee's hearing are these:

"(1) it had wrongly confined the issue of the disciplinary hearing to whether the Applicant had knowingly taken unauthorised leave. Where sick leave covering 25 February 1992 to 25 May 1992 had been granted to the Applicant retrospectively, the Investigation committee had failed to perceive the issue as being whether the Applicant indeed had an explanation for the unautorised absence which he had failed to communicate to the Department;

"(2) it had failed to perceive sickness being a ground for granting leave and direct its mind to whether or not the Applicant was sick and that such sickness alone would result in sick leave being granted;

"(3) failed to perceive that an issue of the hearing was whether the wife was threatening a divorce and that it may constitute a ground for leave in light of its exceptional circumstances."

9. The question the applicant formulated for judicial review is: "the Investigating Committee was under a statutory duty to investigate and consider all relevant matters and attach to them the due weight; the duty should be strictly adhered to in view of the gravity of the finding of the Investigating Committee by virtue of Colonial Regulation 63". It is the duty of and the discharge of that duty by the Investigating Committee that is sought to be reviewed. These are matters predominantly suitable for resolution by the Civil Service Branch. Few courts can justly claim to be better qualified to resolve these employment disputes in the context of the civil service. The applicant's case having received full attention, if the judge had given him leave and he had succeeded in having the matter re-ventilated before the Investigating Committee, the result would not have been different.

10. The judge was right to refuse leave. I would dismiss the appeal

Bokhary JA:

11. In purely human terms, nobody could fail to feel sympathy for the applicant in his plight. But as a matter of law, I can see no basis on which we can reverse the judge's refusal of leave. I would add this: giving people leave to embark on litigation without adequate foundation only makes things worse for them in the long run (for litigation is generally expensive and all too often ruinously so).

12. I, too, would dismiss this appeal.

Nazareth VP:

13. I agree that for the reasons given by Liu JA, the appeal must be dismissed.

14. Clearly the applicant was wrong in directing his attack at the Governor's decision. Nonetheless, and particularly as he is not represented, we have carefully considered his complaints against the disciplinary investigation made both in the written documents submitted and orally before us. I am satisfied on the evidence that there is neither merit in those complaints nor anything that would warrant the granting of leave to apply for judicial review.

Representation:

Man Yau Ho, Cedric, Appellant in person