RE Chi Hing CHUA Anthony

IN THE COURT OF APPEAL

1992, No. 180
(Civil)

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J U D G M E N T

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Sir Derek Cons, V.-P.:

1. Mr. Anthony Chi Hing Chua was for some time a dispenser and then pharmacist in the Hong Kong civil service. On 20th May 1992 he was compulsorily retired, following the adverse report of an investigating committee appointed by the Secretary for the Civil Service under powers contained in Colonial Regulation 57 and delegated to him by the Governor. On 2nd November Mayo J. refused Mr. Chua's leave to apply for judicial review and on 4th December this Court dismissed Mr. Chua's appeal from that refusal.

2. Mr. Chua now seeks leave to appeal to Her Majesty in Council. He suggests that the leave should be consolidated with leave which has already been refused in relation to the decision of another division of this Court and for which his application to their Lordships for special leave is pending. I doubt very much if this Court would have jurisdiction to make such a consolidating order, but in the event the question does not arise.

3. In his written application Mr. Chua sets out, in seven paragraphs, the grounds which in his view undermine the decision of this Court. There follow two paragraphs under the rubric "Contentions and Reasons for the appeal". He has also submitted a written skeleton of his arguments.

4. In none of these documents, nor in his address to us in court, can I find any question which in my view is of great general or public importance or which ought otherwise to be submitted to Her Majesty for decision. We can then only grant leave to Mr. Chua if he has an appeal as of right, that is "if the appeal involves, directly or indirectly, some claim of question to or respecting property or some civil right amounting to or of the value of $500,000 or upwards": rule 2, Order in Council, 10th August 1909, as amended. That being likely to be a question of some difficulty we adjourned the initial hearing, inviting assistance from the Attorney General.

5. At the resumed hearing Mr. Hamlin kindly appeared and was prepared to accept on behalf of the Attorney General that Mr. Chua does have an appeal as of right, being based on the terms of his contractual employment with the Government which, having regard to his apparent age and legitimate expectation of working until normal retirement age, with a pension thereafter, must be worth at least $500,000. At the same time Mr. Hamlin asked us strictly to enforce the provisions of rule 4 of the Order in Council, in particular that part which provides for security against costs. Having regard to Mr. Chua's lack of financial resources, that would effectively preclude Mr. Chua from taking this matter any further. He therefore asks us to dispense with those provisions.

6. I doubt whether in any event we could accede to his request, for the Order in Council is mandatory, but in my view the question does not arise, for the direct civil right with which we are presently concerned is not Mr. Chua's right to work as a pharmacist for Government nor his right not to be dismissed except in accordance with proper procedures, but his right to apply for leave to have the judicial review in which he seeks particular reliefs which include, as we observed in our earlier judgment, one which is already before their Lordships by way of an appeal for special leave and others which appear to be beyond the proper parameters of the proceedings. His indirect rights are to have a judicial review (if leave be given) and not to be dismissed save in accordance with Curtain procedures.

7. Judicial review is a discretionary remedy. It requires the leave of a High Court judge which he is not bound to grant, even where the applicant appears to have good grounds in law to support his complaint; a fortiori if the applicant does not. The position is similar to that in Royal Hong Kong Jockey Club v. Peter James Miers [1983] 1 WLR 1049 where the stewards of the club were not bound to grant a licence to the jockey in question, that being a matter for their discretion. It seems to me therefore, by analogy to the decision of their Lordships in that case, that Mr. Chua does not have an appeal as of right to Her Majesty in Council. His direct right to apply for leave for judicial review and his indirect rights just described cannot be measured in monetary terms.

8. For these reasons I would dismiss the application.

Kempster, J.A.:

9. I agree with the conclusion and order of My Lord the Vice President and with his reasons.

Litton, J.A.:

10. In his application for leave to apply for judicial review, the applicant has set out no less than twenty separate grounds in support of the various reliefs he seeks. Most of these "grounds" have sub-paragraphs which constitute, in effect, separate grounds. Many of these are simply unintelligible.

11. The heart of his complaints, in so far as I can understand them, is this : that the investigating committee constituted under Colonial Regulation 57 to investigate the charges against him failed to conduct the investigation fairly and properly and its findings of misconduct are vitiated on account of bias; in consequence, the decision of the Secretary for Civil Service to require the applicant to compulsorily retire from the public service was unlawful. Among the reliefs sought by the applicant is an order of mandamus to reinstate him as a government pharmacist with effect from 20 May 1992. There are lesser complaints, such as those relating to the decision of the Director of Accounting Services to "withhold" for seven days his net monthly salary which, on any view, cannot amount to a civil right of the value of $500,000. I will, for the purpose of this matter (confined solely to whether the applicant should have leave to appeal to Her Majesty in Council) put aside those complaints.

12. Having upheld the decision of the judge in refusing the applicant leave to apply for judicial review, the question before us is whether the appeal which the applicant wishes to bring to Her Majesty in Council is one which involves "directly or indirectly some claim or question to or respecting property or some civil right amounting to or of the value of $500,000 or upwards": rule 2(a) of the Hong Kong (Appeal to Privy Council) Order-in-Council 1909.

13. There is no doubt that the civil right directly involved in the applicant's proposed appeal is his right to apply for judicial review. But, plainly, there is some other civil right indirectly involved. What is that right? As I see it, it is the right to have a proper investigation of the allegation of misconduct. The question then arises: is the value of that civil right capable of being appraised and reduced to a money value? In my judgment, it is not. In reaching this conclusion, I have derived some assistance from the case of Griffin and Sons v. Judge Archer and the General Manager of Railways (1957) NZLR 502, referred to in argument in the case of Royal Hong Kong Jockey Club v. Miers [1983] 1 WLR 1049. In Griffin and Sons the court held that the only civil right involved, either directly or indirectly, was the right of the appellant to have its case heard by an impartial tribunal; the value of that civil right could not be appraised or reduced to a money value; consequently the appellant could not bring itself within rule 2(a) of the Privy Council Appeal Rules applicable to New Zealand.

14. In my judgment, Mr. Hamlin's concession, on behalf of the Attorney General, that the applicant does have an appeal as of right, based upon the terms of his contractual appointment with the government, gives too wide a construction to the word "indirectly" in rule 2(a). Assuming for the sake of argument that the investigating committee had conducted itself in the way the applicant suggests it should, does it necessarily follow that the applicant would have been exonerated of all charges of misconduct? If this conclusion cannot be drawn, how can it be said that the appeal involves indirectly the applicant's employment with the government?

15. Like My Lord the Vice-President I, too, have reached the conclusion that the civil right indirectly involved in the appeal cannot be measured in monetary terms, albeit by a different route.

16. For these reasons I too would dismiss the application.

Sir Derek Cons, V.-P.:

17. In handing down this judgment we make an order nisi that there be no order as to costs.

Representation:

Patrick Hamlin, Crown Solicitor for the respondent

Anthony Chi Hing CHUA, appellant in person

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J U D G M E N T

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Sir Derek Cons, Ag. C.J.:

1. Mr. Anthony Chi Hing CHUA joined the Hong Kong Civil Service as a Dispenser in 1980. Five years later he was promoted to Pharmacist, a rank he held until he was compulsorily retired as from 20th May this year.

2. Having acquired the degree of Bachelor of Laws externally from the University of London he was minded, in 1991, to obtain his professional qualification by attending a one-year Post-graduate Certificate in Laws course at the University of Hong Kong commencing on 12th September. To this end he applied on 1st August for 218 days' leave. Comprised in that period, after deduction of an accrued vacation leave balance of 180 days, were 88 days no-pay study leave. His application was rejected by the Secretary for the Civil Service on 22nd August, and again on 12th September following a review of his application consequent on Mr. Chua's appeal to the Governor. However during September and October Mr. Chua was granted 34 days' vacation leave, which he cut short of his own volition resuming duty on 9th October. He presumably used this to attend at the University.

3. On 30th August 1991 Mr. Chua lodged an application for leave to apply for judicial review, seeking a variety of reliefs. Included among them was:

"(4) An order of mandamus directed to the Secretary for Civil Service to grant me 'no-pay study leave' under CSR 1012(2) & 1013 to pursue the Postgraduate Certificate in Laws (P.C.LL.) course of the University of Hong Kong."

4. Leave was refused in September by Mayo, J. and an appeal before another division of this Court was dismissed on 7th January this year: Civil Appeals 137 and 150 of 1991 unreported. We understand that Mr. Chua is seeking further relief from Her Majesty in Council.

5. When Mr. Chua cut short his vacation leave and resumed work on 9th October he immediately applied for a half-day's leave on each of the following three days, i.e. the 10th, 11th and 12th. This was equally immediately refused by the Chief Pharmacist. The following day, i.e. 10th October, Mr. Chua made a yet further approach, seeking permission to take 42 half days' vacation leave from 10th October to 30th November and ten further days in December. This would have enabled him to complete the first term of the PCLL course at the University. He also advised that the half-day leave arrangement was to be understood as his reporting for work at 11:30 a.m. each day and leaving again at 4 p.m.

6. The Director of Health rejected the application the following day, and was not persuaded to change his mind by further correspondence from Mr. Chua later in the month. Nevertheless Mr. Chua absented himself from work in the manner and at the times that he had suggested on every working day during the period from 17th October to 12th November inclusive, and, it would seem, on many occasions thereafter.

7. Regulation 57 of Colonial Regulations provides:

"(1) If it is represented to the Governor that an officer has been guilty of misconduct, and the Governor is of the opinion that the misconduct alleged may be serious enough to warrant the dismissal or compulsory retirement of the officer, he may cause an investigation to be made into the officer's conduct in such manner as may be prescribed by regulations made by the Governor and approved by the Secretary of State.

(2) If after such investigation the Governor is of the opinion that the officer has been guilty of misconduct, he may inflict such punishment upon the officer as may seem to him to be just.

(3) where an officer is absent from duty without leave for a period exceeding 21 days and it is reported to the Governor that -

(a) the officer cannot be traced; or

(b) on being required by notice in writing (sent to an address or addresses through which it may be reasonably expected to reach him) to give, within the period specified in the notice, an excuse for his absence, the officer has failed to give any excuse or to give an excuse that is acceptable, the Governor may dispense with an investigation under paragraph (1) and summarily dismiss the officer."

8. Pursuant to that regulation and an order by the Secretary for the Civil Service, to whom the Governor had delegated his power, an investigation was made into Mr. Chua's conduct commencing at 9:30 a.m. on Friday 28th February this year. The investigating committee consisted of an Administrative Officer Staff Grade C as chairman and a Chief Executive Officer as member. They were assisted by a Senior Hospital Administrator. Their subsequent report indicates that the offence to be investigated was misconduct, being "absence from duty without obtaining leave or permission on" the dates we have previously mentioned.

9. The major part of the first day of their enquiry was occupied by discussion between Mr. Chua and the committee dealing with his applications that:

(1) the proceedings be opened to the public;

(2) be adjourned some three months;

(3) the Secretary for the Civil Service, the Director of Health and the Chief Pharmacist be called as witnesses; and

(4) if these requests should be refused, then the proceedings be adjourned to enable him to apply to the Court for judicial review of the refusal.

10. When all these applications were eventually refused, with a caveat as to (3) that the decision would be reviewed if during the course of the hearing it was found that the personal attendance of any was important, Mr. Chua walked out of the hearing, leaving behind however a number of papers for the committee's perusal.

11. Not surprisingly the proceedings could not be completed that day. Mr. Chua attended at the commencement of the resumed hearing on 6th March. Amongst other things he made a further request for an adjournment until May, so that he might have the assistance of, another civil servant who had offered to appear in the proceedings as his friend. The adjournment was necessary as the man was "very busy both at work and also (had) some sort of personal commitment". The committee was prepared to offer a short adjournment of, say, one or two weeks, but on refusal of a longer adjournment Mr. Chua again walked out of the proceedings.

12. On 8th April the committee tendered their report to the Secretary for the Civil Service. Their conclusions were that:

"50.    In the light of the above findings, the Committee comes to the unanimous conclusion that the Accused officer, Mr Anthony C H CHUA has misconducted himself in being absent from duty without obtaining leave or permission on the 23 occasions specified in the charge against him. Though he may argue that he already applied for leave to cover the periods of absence and did not agree with the reasons provided by the Department for turning down his applications, we do not think that these gave an acceptable excuse for him to be absent without approval and to defy the Department's decision of not permitting him to take leave. Indeed, we feel that in no circumstances should a civil servant in the rank of Mr CHUA take this irresponsible attitude. The odd pattern of leave he asked for vide Exhibits 30 and 32 also shows his lack of thoughts for his colleagues, office operation and public interest.

51.    Before reaching the above conclusion, the committee has tried to look for mitigating factors for Mr CHUA's misconduct but none including unreasonableness or prejudice against him, have appeared to be valid before us. All in all the evidence we have collected and the facts we have established through the hearing lead us to conclude that Mr CHUA is guilty of the charge."

13. By a letter dated 16th May Mr. Chua was advised that after consideration of the report the Secretary for the Civil Service, on the authority delegated to him by the Governor, had directed that he, Mr. Chua, be compulsorily retired from the service with effect from 20th May.

14. In the meantime the Director of Accounting Services had advised Mr. Chua that arrangements had been made to' deduct a total sum of $62,911.70 from his salary by reason of his unauthorised absences from work during the months October 1991 to March 1992 inclusive.

15. Mr. Chua has suggested to us that this is in effect double punishment, because recourse could have first been had to his unused leave balance. However, as at the time leave had been especially refused and Mr. Chua had not in fact been present at work at the times referred to, the Director's approach would seem appropriate.

16. On 16th August Mr. Chua lodged his second application for leave to apply for judicial review, the application with which we are now concerned. The reliefs he seeks are set out in 20 paragraphs, some of which are subdivided. They relate, in some instances, to matters beyond the background we have endeavoured to set out above, for example, under paragraph 11:

"A declaration that, to minimise corruption opportunities, the Department of Health and Hospital Authority must adopt United Nations World Health Organisation Good Manufacturing Practice ('GMP') as an objective criteria in their Drug Purchase Policy, and phrase out the subjective criteria in say 3 years' time."

and under paragraph 13:

"A declaration that I am a fit and suitable person, when the PCLL is passed, to be approved as a pupil by the Hong Kong Bar Council, with a view to be called as a barrister of the Supreme Court of Hong Kong."

This last is now academic since Mr. Chua was in fact so called in October.

17. The grounds upon which the reliefs are sought are set out on 7 pages of close typescript, the affidavit in support being of similar length.

18. The application for leave came on before Mayo, J. on 2nd November. Mr. Chua appeared in person and no doubt presented his case as carefully as he has done before us. In a brief judgment, delivered the same day, Mayo, J. refused leave, taking the view that Mr. Chua had not, in his opinion, "made out even an arguable case that any application for judicial review would have any prospect of success".

19. Appeal from a refusal of leave is as of right: Order 13 rule 3(4). Since that is an exercise of the judge's discretion the approach of this Court would normally be that referred to, for example, in Hadmor Productions Ltd v. Hamilton [1983] 1 AC 191 at 220. Indeed Mr. Chua filed a notice of appeal, on 11th November, alleging various imperfections in the judge and in his judgment. However Mr. Chua did not pursue these at the hearing presenting his case instead as though it were a renewal of the application itself. To this end he has, in addition to his submissions, taken us to those parts of the papers below which in his view indicate conduct fit for review by the High Court.

20. We declined to allow Mr. Chua to argue again that the authorities had acted unreasonably in refusing the leave requested, that being in our view a matter fully covered bythe previous proceedings. We saw no material significance in the fact that the series of half-day leaves, which the authorities not surprisingly castigated as an attempt to circumvent the departmental guidelines upon which the refusal of no-pay leave relied, would have been granted under a different Civil Service Regulation.

21. Mr. Chua's main arguments, if we understand them correctly, are that there was bias in the proceedings, both inherent and actual; that the proceedings were ultra vires; and that his conduct did not amount to misconduct, at least not of a nature sufficiently serious to warrant effectual dismissal from the service.

22. Inherent bias, he suggests, is to be inferred from the fact that the chairman and member of the committee were both government servants, employed under a colonial hierarchical system by reason of which it would be impossible for either of them to bring an open and independent mind to their duties. One relief claimed, in the alternative to reinstatement, is the reopening of the initial investigation before an augmented committee under the auspices of OMELCO.

23. Actual bias is to be found, Mr. Chua suggests, so far as the Secretary for the Civil Service is concerned, in the facts that he chose to proceed under Colonial Regulation 57, when he could have proceeded under Colonial Regulation 56 which provides a similar procedure to that of Colonial Regulation 57, but expressly excludes dismissal or compulsory retirement as a punishment; and that prior to the incidents which we have recounted earlier, the Secretary for the Civil Service had been considering the possibility of retiring Mr. Chua in the public interest under Colonial Regulation 59. So far as the committee is concerned, actual bias is to be found in its reliance upon procedural guidelines issued by the Civil Service Branch when deciding whether or not to open the proceedings to the public; in its refusal to grant the adjournments requested; in the chairman's refusal to agree, in the course of discussion, that Mr. Chua had been personally victimized; and in the committee's failure expressly to reconsider, during the subsequent course of the investigation, whether the presence of the three specifically requested witnesses was in fact necessary.

24. The criterion for bias in a situation of this kind is whether its presence would be reasonably suspected by a reasonable and fair-minded person knowing all the relevant facts: per Lord Ackner in R. v. LiverPool City Justices, ex parte Topping [1983] 1 WLR 119 at 123. Applying that standard to the matters we have just outlined we have no doubt whatsoever that such a person would not have the slightest, let alone. a reasonable suspicion that any part of the proceedings was in fact tainted with bias. This argument must therefore fail.

25. The ultra vires point depends on the suggestion that the Governor had no right to delegate to the Secretary for the Civil Service his powers under Colonial Regulation 57. This in turn depends upon Colonial Regulation 54(5) which provides:

"The Governor may delegate to any public officer any of the powers or duties conferred or imposed upon him by regulations 56 to 66, save that he shall not delegate the power to make regulations, nor save with the approval of the Secretary of State, the power to dismiss an officer or to require him to retire under regulation 59."

26. Although on its face the sub-regulation is against him, Mr. Chua seeks to turn it to his advantage by the submission that compulsory retirement, being in so many ways akin to dismissal from the service, must be taken to be included therein unless required under Colonial Regulation 59. We find ourselves unable to accept that argument. Apart from the natural distinction between the two, sub-regulation (3) makes it clear that in the regulations they are intended to be treated as separate forms of punishment:

"For the purpose of regulations 56 to 66, punishment includes dismissal, compulsory retirement with pension, gratuity or other allowances, without such benefits or with reduced benefits,..."

This argument fails also.

27. Finally we turn to misconduct. Mr. Chua has repeatedly emphasized that in his view his absences caused no inconvenience or disruption to the department and that no evidence was called before the committee to the contrary. He has also attempted to establish, by reference to sub-regulation (3) of Colonial Regulation 57, a standard of misconduct which he suggested in the circumstances had not been reached. We regret that it was an argument we were unable to follow.

28. Whether Mr. Chua was or was not guilty of misconduct is not a question of law or procedure, but the very fact which the investigating committee had to decide. The Court may therefore only interfere by way of judicial review if, in the Court's opinion, no reasonable investigating committee could have come to an affirmative conclusion on the evidence that was adduced in the present instance. Likewise the Court can only interfere with the decision of the Secretary for the Civil Service that Mr. Chua be compulsorily retired if no reasonable employer, faced with such a report from the investigating committee, could have made the same decision. Having regard to all the circumstances which we have outlined it seems to us almost inevitable that the conclusion of the committee and the decision of the secretary would have been as they were. But be that as it may, Mr. Chua has certainly not persuaded us that either was such as could not be reasonably reached. This last point therefore fails as well.

29. We therefore dismiss the appeal.

Representation:

Mr. Anthony Chi Hing CHUA, appellant in person