FUNG YIU BUN v. COMMISSIONER OF POLICE

HCAL 2350/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2350 OF 2001

____________

____________

_______________

J U D G M E N T

_______________

Introduction

1. This is an application for judicial review of the respondent's decision on 10 May 2001 to terminate the applicant's service (with effect from 12 May 2001), leave to do so having been given on 23 October 2001.

2. The relevant background facts are largely undisputed. The applicant was appointed by the respondent as an inspector of police on probation. The letter of appointment dated 15 December 1997 stated (among other things) that:-

The respondent points out at the hearing that the applicant's appointment was (as stated in the above letter) for 3 years only commencing on 5 January 1998 (and therefore expiring on 5 January 2001). Other parts of this letter are relevant to issues such as whether Hong Kong police officers are employees but these will be dealt with below as and when the issues fall for consideration.

3. During the probation period, the applicant has not been well reported on by his superior officers from different units or formations. A common theme in many of the assessment reports on his performance was that the applicant would only do the bare minimum. Further, although there were periods when the applicant showed some improvements, these were due to warnings and expressions of concern from his superiors. As soon as the pressure waned, the applicant's performance was seen to have slacked. In short, he appeared to require constant supervision and generally lacked drive and initiative.

4. In the last annual assessment report for the period ending October 2000 (prepared in January 2001), recommendation was made for the applicant's confirmation to be deferred for 6 months so he could be given a further opportunity to demonstrate his ability and suitability. This was however not followed when the matter was reviewed within the police force. It was instead recommended that his service be terminated under s. 25(1), Police Force Ordinance, Cap. 232. On 8 March 2001, the Assistant Commissioner of Police (Personnel) agreed with the recommendation to terminate and instructed that the applicant be informed of the respondent's intention to terminate his service and be given an opportunity to make representations. The applicant was informed accordingly on about 12 March 2001. He submitted his written representations on 18 March 2001. His representations were commented upon by some of his supervising officers, two of whom recommended that the probation period be extended for 6 months. After further internal consideration, it was decided on 7 May 2001 that the applicant be discharged from the force and he was informed of such in a letter dated 10 May 2001.

The Issue(s) in this Application

5. It is accepted by the parties that, at the end, the outcome of this application turns on the following 3 issues. The first issue is: whether this application falls within the public law domain therefore rendering the decision under challenge to be judicially reviewable.

6. In this connection, the observations of Sir John Donaldson MR in R v. East Berkshire Health Authority, ex p Walsh [1985] 1 QB 153 have been accepted by the parties herein to be the proper test. The relevant passages in that judgment are:-

Even if the above test was not accepted by the parties to be correct, I would still have found that this should be the test for determining if the dismissal is amenable to judicial review.

7. In the context of this application, the parties herein accept that whether this application falls within the public law domain depends ultimately on whether s. 25, Cap. 232 "injects any element of public law" into the decision to terminate the applicant's service with the Hong Kong Police. I should add that the parties herein also accept that cases involving disciplinary proceedings may also be amenable to judicial review: see, for example, McClaren v. Home Office [1990] ICR 824, 836. However, this application is not concerned with disciplinary proceedings and so cases relating to this area are irrelevant.

8. The other 2 issues are: if this application properly falls within the public law domain, (a) whether the decision-making process was procedurally unfair, and (b) whether the decision to terminate the applicant's service itself was irrational.

9. These issues will be dealt with under separate headings below.

Is a Police Officer in Hong Kong an Employee?

10. The applicant argues that police officers in Hong Kong, like police officers in England and some parts of the Commonwealth, are not employees. The respondent contends that they are. By reason of the parties' acceptance of the test propounded in the East Berkshire Health Authority case for determining whether a dismissal decision is judicially reviewable, this dispute is strictly irrelevant. I shall deal with it for completeness nevertheless.

11. The history relating to the establishment of police forces in England has been outlined in Wade & Forsyth: Administrative Law 8th Ed., pp. 149-51:-

It was recognised in England that:-

12. The respondent submits that the above is irrelevant to the Hong Kong situation, especially that since October 1997. Among the matters relied upon by the respondent in this connection is Article 100 of the Basic Law which reads:-

Hence, (the respondent argues) Article 100 indicates that police officers in Hong Kong are government employees.

13. The applicant makes 2 points in answer:-

Point (2) is a hopeless argument and the applicant does not further pursue it.

14. It is possible that a piece of statute may contain provisions which misunderstand the true legal position or use loose language. In relation to point (1) above, however, the following matters show that, at least in relation to Article 100, there was no misapprehension of the law on the part of the draftsman of the Basic Law, or that loose language has been used:-

The respondent also relies on Articles 15 and 48(5) of the Basic Law which in effect provide that he is nominated by the Chief Executive and appointed by the Central People's Government. Article 48(5) of the Basic Law also provides that the respondent is regarded as one of the principal officials of the Hong Kong Special Administrative Region. I regard these Articles to be of minimal significance in this application because Chief Constables in England are appointed by the local police authorities but this does not by itself constitute any employment relationship.

15. In relation to point (b) above, the "Memorandum on Conditions of Service for Local Police Inspector and Constable on Probation" provides at clause 1.1 that:-

Similar wordings can be found in clause 13.1 (relating to the discipline of an officer). Further, clause 3.3 provides:-

Clause 3.5 provides:-

Clause 4 provides:-

Clause 12.4 stipulates:-

References to the Secretary for Civil Service can also be found in clauses 13.16 and 13.17. Clause 15.3 provides:-

Finally, clause 17 provides:-

All the above terms indicate that the Hong Kong government is the applicant's employer.

16. By reason of the above matters, and assuming the terms of appointment of other police officers also refer to those documents set out in point (b) above, I find that police officers in Hong Kong are employees of the Hong Kong government.

Is a Police Officer in Hong Kong a Holder of Public Office?

17. In his written skeleton submissions, the respondent takes the view that a police officer in Hong Kong is a government employee and not the holder of a public office. The respondent indicated in the course of the hearing that if a police officer is a government employee, it is immaterial for the purpose of this application whether he is also the holder of a public office. The applicant, on the other hand, contends that it is important to consider this point.

18. I agree with the respondent's stance at the hearing. Once the test propounded in East Berkshire Heath Authority is accepted (or found) to be the correct test, whether a public servant is, in the words of Sir John Donaldson MR, "in a 'higher rank' or an 'officer"' is unimportant.

19. For this reason, the applicant's arguments about the need for police officers to take the prescribed oath or declaration of office before entering on the duties of their offices (s. 26, Cap. 232) and the form of the oath (Schedule to Cap. 232) need not be further considered.

Source of the Power to Terminate the Applicant's Service

20. The respondent argues that his power to terminate the applicant's service is purely employment in nature in that the respondent was merely exercising his contractual power to do so. The respondent contends that since s. 25, Cap. 232 was the provision upon which the power was founded, there was a statutory underpinning to the applicant's dismissal and this entitles him to ask for judicial review of the dismissal.

21. It is common ground that the provisions relevant to the applicant's dismissal can be found in the following terms of the "Force Procedure Manual" ("FPM"), Chapter 5. FPM 5 provides:-

FPM 5-04 para.2 is related to FPM 5. It reads:-

FPM 6 provides:-

FPM 7 states:-

FPM 8 stipulates:-

Hence, FPM 6 expressly refers to s. 25, Cap. 232 as the source of the power for terminating an officer's service. Further, the letter dated 10 May 2001 which terminated the applicant's service stated:-

Thus, it is obvious that the respondent prayed in aid of s. 25(1), Cap. 232 when he exercised his power to terminate the applicant's service. For ease of reference, the part of s. 25(1) relevant to the applicant is reproduced below:-

22. However, merely because the power to dismiss has a statutory origin does not automatically entitles the employee to ask for judicial review. As has been observed in East Berkshire Health Authority:-

As the applicant correctly puts it, whenever a statutory function is to be carried out the law necessarily implies that it will be carried out in accordance with fairness and/or the rules of natural justice unless those rules are expressly (or by necessary implication) excluded by the statute: see, for example, Mohamed Yaqub Khan, at pp. 979F-982H; Fok Lai Ying v. Governor in Council and Others [1997] HKLRD 811, 818 citing R v. Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531, 560. The applicant argues that there is no such exclusion in relation to s. 25(1), Cap. 232.

23. It must be noted that s. 25(1), Cap. 232 does not expressly provide that when the respondent exercises his power to terminate, the rules of natural justice should be followed. Hence the resolution of this issue turns on whether those rules are applicable, or have been excluded, as a matter of necessary implication. The other provisions of Cap. 232 have to be taken into account for this purpose because the context in which s. 25(1) appears in Cap. 232 is important to this point.

24. Cap. 232 expressly refers to these types of police officers: gazetted police officers (s. 13), inspectors, non-commissioned officers and constables (ss. 14 and 25(2)), temporary police officers (s. 24) and inspectors on probation (s. 25(1)). The power to dismiss police officers can be found in a number of provisions but the provision which apparently governs this matter generally is s. 15 which reads:-

The reason why s. 13(1) is expressly referred to in s. 15 is that it appears that the dismissal (as well as appointment, interdiction and so on) of gazetted officers is specifically provided for in s. 13(1). S. 38 refers to the power to terminate services of the Central People's Government and is hence irrelevant to this application.

25. Leaving aside the power to terminate services by advanced written notice or payment of salary in lieu of notice (which will be discussed below), the only provisions in Cap. 232 empowering the respondent to dismiss police officers are s. 16 (termination of service where it is desirable in the public interest), s. 31 (summary dismissal where an officer is guilty of contravening police regulations) and s. 37(5) (dismissal where an officer has been found guilty of criminal offence(s)). These provisions confer on the respondent what can be called powers to dismiss police offices specified therein for cause.

26. On the other hand, there is another type of power to terminate the services of police officers. This is given by ss. 23(1) and 25(1) (advanced written notice or payment of salary in lieu of notice) and by s. 24(3) (advanced written notice). These provisions are only applicable to non-commissioned officers and constables who have not completed 10 years of service (s. 23(1)), temporary police officers (s. 24(3)) and inspectors on probation (s. 25(1)). In each case, these officers can likewise by advanced written notice or payment of salary in lieu of notice: see ss. 23(2), 24(3) and 25(2) respectively. Ss. 24(1) and 25(1) have their respective counterparts in the form of clauses 15.1.1 and 15.1.2 of the "Memorandum on Conditions of Service for Local Police Inspector and Constable on Probation".

27. In view of the above provisions in Cap. 232, I conclude that the rules of natural justice have by necessary implication been excluded from s. 25(1) by reason of the following matters. First, Cap. 232 differentiate between dismissals which are for cause (s. 15 read together with ss. 16, 31 and 37(5)) and those which are by way of advanced written notice and/or payment of salary in lieu of notice (s. 15 read together with ss. 23(1), 24(3) and 25(1)). In relation to the latter type:-

28. No reliance has (correctly) been placed by the applicant on FPM 8 as giving him the right to last words. This was not provided for by FPM 8. It is a contractual term and, looked at in context, was not intended to incorporate the rules of natural justice save and except as expressly stipulated therein, namely, that the officer concerned can make written representations in accordance with that term. Similarly, the applicant has correctly not complained that the respondent has breached that term. Even if he does so, such complaint should properly be a matter within the private law domain because it is contractual in nature.

29. The applicant relies on a number of cases in support of his arguments relating to this point and that relating to procedural unfairness. Among the cases relied upon are Chan Tak Sing v. Chief Executive of HKSAR [1999] 2 HKLRD 389, Mohamed Yaqub Khan v. A-G [1986] 2 HKLR 972, Ng Wai Sang v. Commissioner of Police [1998] 3 HKC 501, Kam Wai Hung v. Secretary for Justice, unrep., HCAL No. 2546 of 2001 and Chief Constable of the North Wales v. Evans [1982] 1 WLR 115.

30. Chan Tak Sing was a case concerning s. 12 of Executive Order No. 1 of 1997 regarding the exercise of the power thereunder to call for a report of a police officer for the purpose of requiring him to retire. Mohamed Yaqub Khan was decided based on the construction given to s. 9(1), Royal Hong Kong Auxiliary Police Force Ordinance, Cap. 233. Ng Wai Sang was about the disciplinary charge of failing to be prudent in a police officer's financial affairs. Kam Wai Hung was concerned with the process of assessing the disciplinary awards against a police officer under reg. 11(2) and (3) and 14 to 15 of the Police Discipline Regulations, Cap. 232. The Evans case (on which the applicant places heavy reliance) was concerned with the exercise of power to discharge a probationer constable under r. 16(1), Police Regulations 1971. None of these cases can assist the applicant in this application because they dealt with different statutes and/or situations.

31. By way of examples, cases which decided that not every decision made by a public body or public authority has the necessary "public law element" to render it amenable to judicial review (which the respondent relied on) are set out below:-

Is the Power to Terminate Service Judicially Reviewable?

32. By reason of the above matters, the applicant's dismissal does not possess any basis for injecting an element of public law. This application should be dismissed.

Has there been Procedural Unfairness?

33. The crux of the applicant's contention here is that he has not been given the right to last words. It is important to note the following:-

34. In these circumstances, even if the relevant statutory provisions sufficiently injected a public law element to the dismissal, I find that they do not require any hearing or a right to be heard to be afforded. S. 25(1), Cap. 232 only requires advanced written notice should be given or payment of salary in lieu thereof be made before terminating the service. It has been referred to and discussed earlier and will not be set out again.

35. In relation to the invitation by the respondent for written representations from the applicant, that was provided for by FPM 8. Similarly, FPM 8 has been referred to and discussed earlier under the heading "Source of the Power to Terminate the Applicant's Service".

36. For these reasons, I do not find this contention to have substance.

Was the Decision to Terminate Service Irrational?

37. This part of the applicant's case is that one of the grounds for the dismissal was that his integrity was in doubt. This, the applicant argues, was related to his having made use of the earlier work of another officer as a draft for his own work during training exercise. The applicant submits that it was irrational for the decision-maker to conclude that such act should cast doubt on his integrity.

38. The respondent contends that the applicant's integrity was not one of the matters taken into account by the decision-maker. He refers firstly to the minute dated 7 May 2001 of the Deputy Commissioner of Police which contains the decision to discharge the applicant. It reads:-

The respondent also refers to the dismissal letter of 10 May 2001:-

39. I agree with the respondent's arguments that the applicant's integrity has not been considered by the decision-maker. It is therefore unnecessary to consider whether (as the applicant argues) the decision is liable to be vitiated when only one of several reasons given for it was irrational: R v. Secretary of State for the Environment ex p Brent LBC [1982] QB 593, 645-6. It is also unnecessary to consider whether copying another officer's work when the applicant was asked to do his own work during training exercise should cast doubt on his integrity.

40. Counsel for the respondent has fairly referred me to para. 27 of the affirmation of Ms. Lo Wai Ming Vivian where she deposed that:-

I accept counsel's submissions that (a) the deponent's above statement was not based on her own knowledge but documents and records she read, and (b) it was only the deponent's interpretation of the documents. At the end, whether the decision-maker has taken into account the "passing-off" incident is a matter for the court to decide based on the materials placed before it.

Is this Application Futile?

41. Finally, the respondent submits that even if I were to find in the applicant's favour regarding "liability", I should refuse to grant the relief sought as a matter of discretion. This is because it would be futile to remit the applicant's case to the respondent for re-determination. The respondent is bound to confirm his earlier decision to discharge the applicant. Both FPM 5 and FPM 5-04 para. 2 require an "unequivocal recommendation" for confirmation to the rank from the applicant's superior officers but there was no such recommendation. There was at most a recommendation that his probationary period be extended.

42. The applicant argues that it is not futile to remit his case because the respondent could consider if his probation period should be extended. If it were necessary to do so, I would have found that this application is wide enough for relief to be granted to the applicant for the purpose of asking the respondent to consider if the applicant's probation period should be extended under FPM 7. This is however academic because I find that this application should be dismissed.

Conclusion

43. To conclude, this application is dismissed.

Should this Application be Treated as if Begun by Writ?

44. The applicantsubmits that if the court is minded to dismiss this application, the court should make an appropriate order pursuant to RHC Ord. 53 r. 9(5). This provision empowers the court to order this application to continue as if it had been begun by writ.

45. It is within the court's discretion whether to make such order. There are two matters which should be considered in this regard. The first is, in the private law domain, the dispute between the applicant and the respondent is one related to a contract of service. This is a dispute normally commenced and determined in the Labour Tribunal: see s. 7 of and the Schedule to the Labour Tribunal Ordinance, Cap. 25.

46. The applicant argues that he will be seeking a declaration in the action by writ and, since the Labour Tribunal cannot grant a declaration, the matter should continue in the High Court.

47. I assume, without deciding, that it is proper for the applicant to seek a declaration instead of loss and damages. I also assume that it is outside the Labour Tribunal's power to grant a declaration. There is nevertheless a second matter which is relevant to the court's discretion to make the order sought by the applicant. This has been dealt with in the following 2 cases:-

48. The East Berkshire Health Authority case concerned the dismissal of a senior nursing officer employed by the health authority. After finding that the case was not one for judicial review, the court of appeal in England said:-

49. The Sit Ka Yin Priscilla case was a judicial review application brought by a former employee of the Equal Opportunities Commission. After having dismissed the application, Keith J. (as he then was) said:-

50. The above observations equally apply to this application. The applicant should be left to decide what cause of action he wishes to bring against the respondent and, after he has so decided, to properly formulate his claim. The application for an order under Ord. 53 r. 9(5) is therefore refused.

Disputes on Fact

51. There are some relatively minor factual disputes, such as whether the applicant was late for work on one occasion or three. I do not find these to be significant enough to affect the decision of this application. Insofar as it may be necessary to do so, I would place more weight on the contemporaneous records (particularly the assessment reports which were signed and acknowledged by the applicant) regarding these disputes. The applicant's written representations which sought to dispute them is given much less weight.

Costs

52. There is no reason to depart from the usual rule that costs should follow the event. There will be a costs order nisi that the costs of this application are to be paid by the applicant to the respondent to be taxed if not agreed. The applicant's own costs are to be taxed in accordance with the Legal Aid Regulations.