DCEO 11/2017 & DCEO 5/2018
(Consolidated)
[2019] HKDC 1537
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EQUAL OPPORTUNITIES ACTION NOS 11 OF 2017 AND 5 OF 2018
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BETWEEN
| | LI CHI SUM | Claimant |
| | and | |
| | SECRETARY FOR JUSTICE for and on behalf of THE DIRECTOR OF FIRE SERVICES | Respondent |
________________________
(Consolidated by the Order of Mr Registrar Ho of the District Court dated 28 February 2018)
| Before: | Her Honour Judge Winnie Tsui in Chambers (Open to Public) |
| Dates of Hearing: | 14 June and 28 August 2019 |
| Date of Decision: | 20 November 2019 |
________________________
D E C I S I O N
________________________
INTRODUCTION
1. Before me is a stay application made by the respondent by summons dated 15 February 2019. The following order is sought:
“There be a stay of these proceedings pending the conclusion of the disciplinary proceedings in respect of the Claimant’s suspected disciplinary offences committed between January and July 2012”
2. There is a long history of events which precede and culminate in the present consolidated action. It is necessary to set out the history in detail. The stay application is premised on and driven by the fact that the present action is progressing at the same time and in parallel with the disciplinary proceedings which the Director of Fire Services (“the Director”) is instituting against the claimant. I shall refer to the latter as “the second disciplinary proceedings”, for reasons which will shortly become clear.
3. The respondent says that there are overlapping issues which fall to be resolved in the two sets of proceedings and, as a matter of case management, the present action should be stayed pending the conclusion of the second disciplinary proceedings.
FACTUAL BACKGROUND
4. The claimant joined the Fire Services Department (“the FSD”) as a fireman in 2002.
5. Under the framework laid down by the Fire Services Ordinance (“the FSO”), Cap 95, he is a “member of other ranks”.
The claimant’s mental illness
6. In his consolidated notice of claim, the claimant says that from about 2011 onwards, he was suffering from depression, anxiety, delusionary disorders and/or adjustment difficulties in his job.
7. On 23 August 2011, he attempted to commit suicide at Kong Wan Fire Station by jumping from height. He was diagnosed with adjustment disorder shortly afterwards. He alleges that his mental illness had “affected his thought processes, perception of reality, emotions or judgment or … had resulted in disturbed behaviour”.
8. Sick leave was granted to him from 23 August to 2 October of the same year. On the following day, he was certified by doctor to be mentally stable and mentally fit to resume work. On 4 October 2011, he resumed operational duties.
The first disciplinary proceedings
9. Between 2010 and 2012, the claimant underwent four special appraisals and his performance was rated either “poor” or “very poor”. The claimant says that these special appraisals were conducted in disregard of his mental illness.
10. On 18 July 2012, the Director interdicted the claimant for investigation into 10 suspected disciplinary offences, which were alleged to have been committed between 18 January to 4 July of the same year, pursuant to section 14(1)(b) of the FSO.
11. On 25 February 2013, the Director instituted disciplinary proceedings against the claimant. These proceedings are to be distinguished from those which are currently being undertaken. The former concluded in March 2015 and the claimant was found guilty. The finding was however quashed in the judicial review proceedings by Wilson Chan J on 9 March 2018 (see judgment under HCAL 89/2015 at [2018] HKCFI 498). And that is the background leading to the Director’s present effort to bring the second disciplinary proceedings in respect of the same charges. In this decision, I shall refer to the first set of proceedings as “the first disciplinary proceedings”.
12. The ten charges can be grouped into four categories.
(a) First, on three occasions, without reasonable cause, he failed to promptly and diligently participate in station training which was part of his duty. This was contrary to para (4)(a) of Schedule 1 to the FSO.
(b) Second, on three occasions, he acted in a disorderly manner by holding a mobile phone and acting like he was making an audio and/or video recording of members of the FSD, causing nuisance to them. This was contrary to para (12) of Schedule 1 to the FSO.
(c) Third, on three occasions, he acted in a disorderly manner by making insulting remarks concerning other members of the FSD in offensive and foul language in conversations. This was contrary to para (12) of Schedule 1 to the FSO.
(d) Fourth, on one occasion, without good and sufficient cause, he removed his uniform and accoutrements from his locker and leave them unattended on the floor and leave the fire station, contrary to lawful written order. This was contrary to para (2) of Schedule 1 to the FSO.
13. Between February 2014 and March 2015, a total of six hearings were scheduled. The first five hearings were either adjourned or suspended. The sixth hearing took place on 13 March 2015. The presiding officer proceeded with that hearing, notwithstanding that the claimant was absent. The finding was that all 10 disciplinary charges were proved.
14. For present purposes, I only need to highlight the issue of medical board which arose in the course of the first disciplinary proceedings. This would turn out to be a material issue as eventually the guilty verdict was overturned by the court due to the mistake made by the presiding officer in connection with this issue.
15. In late March 2014, the claimant sent to the FSD two medical certificates regarding his mood and mental condition. In light of this, the first disciplinary proceedings were suspended. The FSD considered that a medical board should be convened to investigate, among other things, (a) whether the claimant’s work performance and suspected misconduct was related to his health condition, and (b) whether he was fit to attend the disciplinary proceedings. For that purpose, the claimant’s consent was necessary.
16. There was much back-and-forth over the grant of consent by the claimant. Eventually, on 11 March 2015, he returned a signed consent form to the FSD. However, the presiding officer rejected it as the claimant’s signature was not witnessed, as required in the form. The claimant was absent at the hearing which was held two days later on 13 March. The presiding officer declined to further adjourn the hearing and made the guilty finding after evidence was heard.
17. On 16 July 2015, the Director imposed the punishment of “dismissal without retirement benefits” on the claimant for all the charges.
The judicial review
18. In June 2015, the claimant, acting in person, applied for leave to apply for judicial review in respect of the guilty finding made by the presiding officer. He was granted legal aid in May 2016. Pursuant to the court’s leave, he later filed an amended notice of application dated 13 April 2017. He challenged the decision of the Director, contending that the first disciplinary proceedings were procedurally unfair, illegal, irrational and in breach of his right to a fair trial under Article 10 of the Hong Kong Bill of Rights Ordinance, Cap 383.
19. As summarised in the judicial review judgment, the claimant relied on four grounds. In the end, he succeeded in one only and failed on the others. The court granted a declaration that the presiding officer’s refusal to adjourn the first disciplinary proceedings so that a medical board could be convened was unlawful. It quashed the guilty finding of the charges and, consequently, the punishment. Lastly, the court made an order of mandamus requiring the Director to convene a medical board on the claimant.
20. The judge arrived at this conclusion for a number of reasons. One of them was that the Director’s refusal to accept the claimant’s consent form for want of a witness’ signature was unreasonable because the witnessing was not required under the FSD guidelines and there was no valid or cogent reason for this requirement.
21. For present purposes, I should also highlight another reason. The judge was of the view that under the FSD guidelines, medical advice from the medical board “is obviously necessary for deciding whether or not there is causation between the officer’s disability and his misconduct” (para 32). In the absence of such medical evidence, the presiding officer’s finding that there was no such causation was not supported by evidence, was without basis and could not stand.
Developments after the judicial review decision
22. Pursuant to the order, on 2 August 2018, a medical board was convened to examine the claimant.
23. On 24 August, the board sent its report to the Director. It stated that the claimant appeared to be in remission of his mental illness but he would warrant regular follow-up and treatment. At the end of the report, the board opined that:
(a) The claimant’s health condition at the material time provided an exculpatory or mitigating factor for his alleged misconduct under the charges.
(b) He is mentally capable of discharging the principal duties of a fireman.
(c) He is fit to attend a formal disciplinary inquiry.
24. On 4 December, the board sent a second report to the Director. At the end of the report, the board expressed the same opinion as in the first one. In addition, the board made references to some treatment records of the claimant in 2012. The board also added that there is a chance of relapse of the claimant’s mental illness and he therefore warrants regular follow-up. However, it is difficult to comment on the scenarios that might trigger a relapse. They could be perceived as “those that are in incident grounds or those that involve conflicts with colleagues”.
25. At the hearing, Ms Kay Seto, counsel for the respondent, told the court that the second report was issued after the Director had asked for clarification on the first report.
26. On 4 February 2019, the Director requested the medical board to provide further clarification of its opinion on, among other things, the risk of relapse, the risk that such relapse may affect the claimant’s discharge of his duties and the safety of the claimant and others.
27. On 15 March 2019, the medical board sent its supplementary report to the Director. It stated that it is difficult to estimate the risk of relapse because his mental condition could be affected by many factors. Further, it could not comment on the impact of any relapse on the claimant’s work performance or safety of others during fire-fighting and rescue operations.
28. Then, on 25 March 2019, the Director invited the claimant to make representations on whether the disciplinary proceedings should be resumed. On 9 April 2019, the claimant replied, opposing such resumption.
29. By his affirmation made in May 2019, the claimant complains that the Director’s plan to resume the disciplinary proceedings has been giving him immense mental anguish, reviving his old symptoms such as insomnia, nightmares, irritation, anxiety and lack of motivation. As a result, since December 2018, he has been prescribed medication double the dosage by his treating doctor. Given the opinion of the medical board, the Director’s decision to proceed with the second disciplinary proceedings amounts to further act of discrimination.
30. By letter dated 24 May 2019, the Department of Justice wrote to the claimant’s solicitors. The respondent was of the preliminary view that the disciplinary proceedings should proceed but, in light of the claimant’s latest allegation regarding his mental state, the respondent would require a further opinion from the medical board on whether he is currently fit to attend a formal disciplinary inquiry. For that purpose, the respondent asked for the claimant’s consent to disclose his recent medical records to the board. The consent was given shortly afterwards. The claimant’s solicitors took the opportunity to point out that it is difficult to comprehend why the respondent is adamant to resume the disciplinary proceedings, even though the medical board has opined that the claimant’s mental condition provided an exculpatory or mitigating factor for the alleged misconduct.
31. As of the hearing before me in June, the parties were still waiting for the advice of the medical board on that issue. At the adjourned hearing in August, I was informed that the medical board meanwhile had requested the claimant to attend an examination in order to give its opinion. However, the claimant had refused. As things stood then, the advice of the medical board as to whether the claimant is fit to attend the disciplinary proceedings was still pending.
32. Subsequently, by letter dated 31 October 2019, the respondent gave an update to the court. Upon enquiry made by the FSD, a doctor from the Department of Psychiatry of Kwai Chung Hospital confirmed that the claimant did not attend the medical board scheduled on 8 August 2019. However, the doctor had seen him on 5 August 2019. The doctor confirmed that the claimant would be mentally fit to attend formal disciplinary proceedings.
33. In light of that, the respondent stated in the update letter that the FSD would go ahead with the second disciplinary proceedings.
The present action
34. While the judicial review proceedings were in progress, ie from September 2015 to March 2018, the claimant, acting in person, commenced two actions against the respondent.
(a) First, in July 2016, he issued a writ under DCCJ 3425/2016. It was indorsed with a statement of claim settled by counsel under the Bar Free Legal Services Scheme. In essence, his causes of action were disability discrimination, breach of employment contract and negligence. In October 2017, the action was transferred to the equal opportunities list and re-designated as DCEO 11/2017.
(b) Second, in November 2017, he took out a claim in the Labour Tribunal under LBTC 3634/2017, claiming damages for breach of employment contract. The following month, by agreement, the case was transferred to the District Court and became DCCJ 5720/2017.
(c) By order dated 28 February 2018, the second action was transferred to the equal opportunities list and re-designated as DCEO 5/2018 and was consolidated with the first action.
35. The consolidated action came before me on 14 June 2018. That was designated as the “first hearing” under Practice Direction SL8, which applies to equal opportunities actions. That the “first hearing” took place almost two years after the claim was commenced is on the face of it unsatisfactory. It is unclear to me why there was such a delay. At the first hearing, I directed that consolidated notice of claim and consolidated notice of response be filed.
36. In the consolidated notice of claim, the claimant gives particulars of how his mental illness had affected his outward behaviour, which he refers to as “disturbed” or “distorted” behaviour. I extract the relevant particulars below.
“(1) His disabilities and distorted behaviour appeared as disobedience, not following discipline, being impolite and arrogant towards his superiors, emotionally out of control, lack of objectivity and lack of sound judgment.
(2) He felt oppressed, bullied, harassed and unfairly treated by his colleagues and superiors.
(3) He became unforgiving about unfairness. He complained about his superiors failing to treat him fairly.
(4) He suffered from delusion that his superiors and colleagues always oppressed him by laying malicious charges against him in order to expel him from the FSD.
(5) He was preoccupied that his superiors and colleagues did not treat him fairly, misjudged him and acted oppressively against him. He reacted and responded explosively to ventilate his grievances and deluded unfairness.
(6) When he thought he was being oppressed or not fairly treated, he tried to preserve the “evidence” on the spot by taking photographs or video recordings using his mobile phone in order to defend himself or prove his innocence. He often called the police and expected the police to intervene and/or to have a fair investigation into the matter.
(7) When there were arguments, conflicts or disputes at work with his superiors and colleagues, he became impulsive and emotional and would suffer from serious headaches, felt dizzy, started brawling, felt sorrow, cried and had difficulty breathing. He suffered from panic attacks from time to time.
…
(14) When he did not receive appropriate responses from his superiors or colleagues about his requests and complaints, he felt depressed, anxious, impulsive and/or emotionally out of control. Emotionally unstable and impulsive, he would throw and destroy articles and letters, wrangle with his superiors and aggressively demand his superiors to deal with his complaints and requests.
(15) His complaints and requests might appear as malicious, defamatory, abusive, irrational, unreasonable and/or groundless.
…
(17) He often laboured under an impression that his superiors abused their powers, acted oppressively against him, deliberately ignored his requests, treated him unfairly and conspired with his colleagues and other government departments for such purpose.
(18) Preoccupied with delusion that his superiors and colleagues oppressed and were unfair,
(i) he sometimes refused to obey his superiors’ orders and responded improperly and aggressively;
(ii) sometimes he would also refuse to follow his superiors’ orders when his complaints and requests were not properly ventilated, addressed or dealt with by his superiors.”
37. He claims that the Director knew full well about his mental illness and his “disturbed” or “distorted” behaviour and discriminated directly or indirectly against him. He says:
“By reason of the Claimant’s excessive and repeated complaints about his superiors and their unfair treatment towards him and in response to the Claimant’s uncompromising attitude and disturbed behaviour, his superiors began a series of oppressive, discriminative and punitive actions, aiming eventually to expel him from the FSD.”
38. It is not necessary to spell out in full the alleged series of “oppressive, discriminative and punitive actions” save to give a brief outline as follows:
(a) The claimant was not allowed to attend proper psychiatric clinics.
(b) The Director instituted the 10 disciplinary charges “related entirely to his distorted behaviour” over “trivial matters”.
(c) The Director unreasonably set up the four special appraisals, aiming eventually to expel him from the FSD.
(d) Based on the four special appraisals, the claimant was stopped his salary increment, deferred his salary increment and recommended for retirement.
(e) The Director repeatedly attempted to force the claimant to retire, which led to a worsening of his psychiatric illness.
(f) After interdicting the claimant, the Director continued with oppressive conduct calculated to harass him, in the course of serving documents relating to the first disciplinary proceedings on him.
(g) The Director pressed ahead with the disciplinary hearing notwithstanding that the claimant had signed a consent form but not yet been assessed by the medical board.
(h) The Director eventually dismissed him from employment without retirement benefit.
39. The complaint in sub-para (b) above is notable for present purposes. The claimant now alleges that the bringing of the 10 disciplinary charges amounts to a discriminatory act on the part of the Director. The claimant sets out his case as follows:
“9. In March 2015, the Claimant was warned of and eventually charged with 10 disciplinary offences which related entirely to his distorted behaviour, such as trivial matters of handling his own uniform, failure to attend training at times when he did not feel fit and well, personal clashes with his superiors, use of foul language and/or his excessive writing to other government departments to ventilate his grievances and complaints about his superiors.
10. The Director discriminated against the Claimant in view that the charges were laid because of his personal clashes between the Claimant and his superiors, and not in view of his disobedience of established disciplines.”
40. Accordingly, the Director, the claimant contends, has acted to discriminate against him contrary to section 11 of the Disability Discrimination Ordinance, Cap 487, and has acted to allow, cause or suffer him to be harassed, contrary to section 22 of the Ordinance. He seeks damages and declaratory relief.
41. In addition, based broadly on the same factual premise, the claimant claims against the Director for breach of employment contract and for negligence. On the latter cause of action, the claimant contends that the Director owed to him a duty of care not to do anything which would or would tend to worsen, aggravate or trigger his psychiatric illness or provoke his disturbed behaviour further and that the Director was in breach of such duty.
42. In the consolidated notice of response, as regards the bringing of the 10 disciplinary charges, the respondent denies any discrimination on his part. He avers that the charges were laid in connection with the claimant’s disobedient and undisciplined acts on the 10 occasions. The respondent denies that the FSD knew or ought to have known of the claimant’s alleged mental illness or “disturbed behaviour”. This is because after the claimant resumed operational duty on 4 October 2011, he had not submitted any medical certificate suggesting that his performance might have been affected by his mental condition. The first time the FSD learnt of the claimant’s psychiatric treatment received since 3 October 2011 was when he submitted the two medical certificates in March 2014 when the first disciplinary proceedings were already under way.
THE STAY APPLICATION
43. In light of the above background, the question before me is whether the present action should be stayed while the second disciplinary proceedings are ongoing.
The respondent’s grounds for staying the present action
44. The respondent says that the balance of convenience lies in favour of a stay, given the close correlation between the two sets of proceedings and the common issues involved.
45. Ms Seto submitted that a “substantial part” of the claim as pleaded in the present action concerns the commencement, handling and consequence of the first disciplinary proceedings. The issues involved in this part of the claim and the alleged misconduct of the claimant, which forms the subject-matter of the second disciplinary proceedings, are intertwined with one another. She highlighted 15 common issues between the two sets of proceedings in her skeleton submissions. An example is whether there was any causal link between the alleged misconduct and the alleged psychiatric disability. The same issue falls to be resolved in both proceedings.
46. The findings made in the second disciplinary proceedings, it was submitted, would likely give rise to issue estoppel in the present action. Ms Seto relied on a number of decisions, including, most notably, R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] 2 AC 146; Ho Kin Man v Commissioner of Police [2014] 3 HKLRD 478; and, William Henry Cowie v The Attorney General HCA 336/1947, 2 September 1948. Where issue estoppel arises, the scope of issues to be tried in the present action would be substantially reduced. A stay of the present action would thus avoid the unnecessary use of the court’s time and resources in dealing with the overlapping issues, as well as save time and costs of the parties. She pointed out that both parties are litigating on public funds.
47. On the other hand, if the two proceedings are allowed to run in parallel, the trial of the present action may take place either before or after the conclusion of the second disciplinary proceedings. This is unsatisfactory, given the close correlation between the two and it would give rise to a potential need to amend pleadings and file supplemental evidence in the present action in light of the findings of the second disciplinary proceedings, should the latter be concluded first.
48. According to the respondent’s estimate, the second disciplinary proceedings would take about 12 to 14 months to conclude, ie including and up to the conclusion of any appeal against the decision. This estimate is arrived at on the assumption that the claimant, the prosecuting officer and the presiding officer will each be legally represented. The process up to when the presiding officer delivers his judgment would take six months. If the charges are proved and if there is an appeal, the process would carry on for another six months. Two months are added as a buffer in the estimate.
49. As the FSD has just confirmed that it would proceed with the disciplinary proceedings, it is estimated that the hearing would be concluded in mid-2020 and the appeal, if any, would be concluded in late 2020.
50. As for the present action, the respondent estimates that the trial would take place in late 2020, given that expert evidence is expected.
The claimant’s grounds for not staying the present action
51. The claimant raises a number of grounds opposing the stay.
52. First, Mr Paul HM Leung, counsel for the claimant, submitted that what has to be decided in the second disciplinary proceedings is very different from what the court needs to decide in the present action. In the former, in issue are the 10 charges. In the latter, there is no need for the court to decide on them at all.
53. Secondly, there is no room for the operation of res judicata.
(a) Where there are no overlapping issues, no issue of res judicata would arise.
(b) But, even if there are, the authorities relied on by the respondent only support the proposition that res judicata may apply where there are successive sets of disciplinary proceedings. But that is not the case here. What we have here are disciplinary proceedings and court proceedings going ahead in parallel.
(c) Furthermore, the Director, when making a ruling on the disciplinary charges under the FSO, is not a “judicial tribunal”. His decision would not be judicial in the relevant sense. The FSO only makes provisions for an “investigation” into any alleged disciplinary offence. The investigation is conducted such that the Director can inform himself whether an employee has acted in breach of his terms of engagement and if so how the employer-employee relationship should be affected in the future. In that capacity, the Director is simply asserting a right in the employment relationship. Also, there is no independent body who would determine the issues between the Director and the claimant. Therefore the disciplinary proceedings under the FSO will not amount to a process of adjudication which is a pre-requisite for the doctrine of res judicata to arise in the first place. In this regard, Mr Leung primarily relied on the English decisions of Christou v Haringey London Borough Council [2014] QB 131 and Mattu v University Hospitals Coventry and Warwickshire NHS Trust [2013] ICR 270.
54. Thirdly, as a separate point, to the extent that there are overlapping issues, any factual findings made by the presiding officer of the FSD would not even be admissible as evidence in the present action. They amount to nothing more than the opinion of a government body. Applying Hollington v Hewthorn & Co Ltd [1943] KB 587, such opinion is not admissible in court. The court will simply need to hear and determine the claims on the evidence afresh without being influenced by such opinion.
55. Fourthly, the claimant says that the resumption of the disciplinary proceedings has triggered a relapse of his mental condition and that raises a serious question of further disability discrimination by the Director. The court may issue an injunction to prevent the irreparable damage which arises as a result.
56. Fifthly, he would suffer substantial prejudice if a stay is granted for any significant length of time. He has been on interdiction since July 2012, with grossly reduced salaries since January 2014. He has to count on loans in order to make ends meet. Even his elderly mother has to contribute her old age allowance to support his living.
57. On the expected timeframe of the progress of the second disciplinary proceedings and this action, while the claimant disagrees with the respondent’s estimate, Mr Leung’s estimate is in fact not too far off from the claimant’s. He expected that the present action would be ready for trial in mid-2020 and the second disciplinary proceedings would be concluded in mid to late 2020.
Legal principles
58. The legal principles governing a stay application ought not to be in dispute.
59. Section 48(5) of the District Court Ordinance, Cap 336, together with Order 1B, rule 1(2)(e) of the Rules of the District Court provide the statutory underpinning for the court’s power to stay. It may stay the whole or part of any proceedings either generally or until a specified date or event.
60. When called on to exercise this power, the court should consider the balance of convenience and fairness as between the parties. It should exercise its discretion in such a manner to ensure that its procedures are used in a logical, fair and cost-efficient manner. It is ultimately a matter of case management: see, eg, recently Lok Man Sin v Lam Chi Wing[2019] HKCFI 56, para 20.
61. The court may take into account the following matters:
(a) What would better serve the ends of justice as between the parties and the administration of justice generally?
(b) Would a stay cause injustice to the plaintiff?
(c) Would continuing the proceedings be unjust?
(d) A plaintiff commencing proceedings as of right should not be deprived of the right to continue in the absence of very good reasons.
See, eg, Rankothpedi Durayalage Kamalawathi v The Director of Immigration[2018] HKCFI 1579, para 13.
DISCUSSION
62. In my view, the following matters are material considerations in this stay application.
(a) Are there overlapping issues between the two sets of proceedings? If so, what is the extent of the overlap?
(b) Would any factual finding made in the second disciplinary proceedings give rise to res judicata or, most relevantly, issue estoppel?
(c) Taking into account the answers to the above and all the surrounding circumstances, how should the present court action be case managed so as to achieve justice and fairness between the parties?
ANY OVERLAPPING ISSUES?
63. As a starting point, it must be recognised that the nature of the second disciplinary proceedings and the present action is very different. In the former proceedings, the issue is whether the claimant committed the misconduct as alleged in the disciplinary charges. The outcome would affect his career and future prospect as a fireman, his remuneration in that position and his retirement benefit. In the present action, he is seeking a court declaration that he has been discriminated against on the ground of his alleged disability. He is also claiming monetary compensation for the loss and damage which he has suffered.
64. Furthermore, the scope of the present action is considerably wider than that of the second disciplinary proceedings, both in terms of the complaints and the time period involved. The claimant’s complaints in the former span over a much longer period of time from 2010 to 2015 whereas the latter only concerns the 10 occasions in 2012. The factual issues arising in the former are more extensive and wide-ranging.
65. Having said that, however, while the rulings eventually made by the Director and the court would be different, they will, to some extent, be premised on a number of overlapping factual issues.
66. In the second disciplinary proceedings, in respect of each of the charges, the presiding officer will have to make factual findings on the following matters in order to reach his ultimate rulings:
(a) Was the claimant engaged in the physical act as alleged? Eg, did he fail to attend and participate in station training on the three occasions as identified?
(b) At the time of the alleged physical act, was he suffering from the alleged mental illness or “disturbed” behaviour?
(c) If the above questions are answered in the affirmative, was his physical act attributable, wholly or in part, to his mental illness or “disturbed” behaviour? In other words, was the apparent act of disobedience merely a manifestation of his mental illness?
67. In the present action, the crux of the claimant’s pleaded case is that he had been suffering from mental illness and “disturbed” behaviour, and that the respondent knew about it and took steps to try to expel him from service. The steps included the institution of the first disciplinary proceedings. That amounted to disability discrimination.
68. It is clear that in order to rule on the claim in the present action, the court will have to arrive at factual findings on the matters set out in para 66(b) and (c) above. In respect of the former, no doubt, whether the claimant had suffered from a disability would be key to his claim in the present discrimination action. In respect of the latter, where the physical act was attributable to the claimant’s mental state and the respondent knew about it, this would go to support the allegation of discrimination.
69. In sum, the same factual issues, as identified above, fall to be resolved in both the second disciplinary proceedings and the present action. In this regard, I reject Ms Seto’s submission that there are other substantive overlapping issues involved. For instance, whether the FSD had laid the charges maliciously in the first disciplinary proceedings or conducted them improperly is not, as a matter of analysis, a matter for determination in the second disciplinary proceedings.
Case management over parallel proceedings
70. In a situation where two court actions are progressing in parallel and common factual issues are involved, it would be sensible to have them case managed together. Depending on the circumstances, they can be consolidated into one single action or heard together. Alternatively, one action can be stayed pending the outcome of the other.
71. Here, we are however not dealing with two court actions. The second disciplinary proceedings are brought within the framework laid down in the FSO and the Director is charged with its conduct. As such, the court does not have any case management power over how it is to be conducted, including ordering a stay of those proceedings on the ground that there is a parallel civil action in the District Court.
72. If I had that power, however, it might be desirable to stay the second disciplinary proceedings pending the conclusion of the present action. This is because the present action is a “larger” action in the sense that its scope is much wider than the second disciplinary proceedings. The resolution of the present action would likely resolve most, if not all, the disputes in the 10 charges. But neither party has suggested that we should (or could) go down that route. Hence, the only realistic options before me are either to stay the present action pending the conclusion of the second disciplinary proceedings, which the respondent asks for, or to allow the two actions to move on in parallel, which the claimant suggests.
73. In my view, it is clear that a stay is the proper way to go forward in the circumstances.
RES JUDICATA
74. It is the respondent’s submission that the factual findings made in the second disciplinary proceedings would likely give rise to issue estoppel in the present action, thus barring the parties from re-opening the same issues. The claimant disagrees. In gist, Mr Leung submitted that such findings have no bearing whatsoever on the present action.
75. The material question can be phrased more precisely as follows – would factual findings made in disciplinary proceedings conducted under the FSO against a fireman give rise to issue estoppel in a civil action between the fireman and the Director?
76. If the answer is yes, it would be a very strong, if not decisive, factor in favour of a stay. This is because to allow the two proceedings to run in parallel, time, efforts and costs will unnecessarily be incurred twice on the overlapping issues.
77. Both counsel confirmed that there is no direct authority on the question as framed above. One should therefore turn to the general principles on the doctrine of res judicata and its rationale. These are not in dispute. What divides the parties is whether the Director, when conducting the disciplinary proceedings, is acting as a “judicial tribunal”. The answer turns on, first, what amounts to a judicial tribunal and, secondly, a proper interpretation of the FSO.
General principles and rationale
78. A res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judgment: Spencer Bower and Handley, Res Judicata (4th ed) at para 1.01.
79. There is a requirement that it is a decision on the merits, pronounced by a tribunal which is judicial in the relevant sense: Spencer Bower at para 2.01.
80. Two policies support the doctrine of res judicata. First, it is of fundamental importance that there must be an end to all litigation. Second, a person should not suffer the hardship or oppression of being vexed twice for the same cause. In essence, the doctrine is founded on considerations of justice and good sense: Spencer Bower at para 1.10.
Judicial tribunal
81. The term “judicial tribunal” is described in Spencer Bower:
“Every domestic tribunal, including any arbitrator, or other person or body of persons invested with authority to hear and determine a dispute by consent of the parties, court order, or statute, is a ‘judicial tribunal’ for present purposes, and its awards and decisions conclusive unless set aside.” (para 2.05)
82. It is generally recognised that decision-makers other than courts may have powers of adjudication which attract the res judicata doctrine. In this context, a distinction is often made between decisions which are “judicial in the relevant sense” and purely administrative decisions. The former attracts the res judicata doctrine whereas the latter does not: Spencer Bower at paras 2.03 and 16.03.
83. The leading authority on this aspect of the doctrine is the House of Lords decision in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273. The question there was whether a decision of a planning inspector made under the Town and Country Planning Act 1971 concerning enforcement notices amounted to a res judicata. The question was answered in the affirmative.
84. Lord Bridge stated that the doctrine of res judicata should apply in the area of public law because the rationale underlying the doctrine has equal application in this area as in the private law field. He said:
“The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims “interest reipublicae ut sit finis litium” and “nemo debet bis vexari pro una et eadem causa.” These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in criminal law. In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.” (emphasis added)(289B-D)
85. In other words, where a decision is made pursuant to statute, in order to determine whether it is capable of giving rise to an estoppel by res judicata, the task is ultimately one of statutory construction. The material question is whether the decision is an adjudication on an issue which finally determines a legal right. If that is the legislative intent, the decision-maker qualifies as a judicial tribunal. (In this decision, for clarity, I shall use the word “decision” in a neutral sense. It refers to any factual finding or legal ruling made by the person in question. The word “adjudication” is, on the other hand, used to denote a decision which is “judicial in the relevant sense”.)
86. When answering the question, one must always bear in mind the underlying rationale of the doctrine. It is to work justice between the parties and in the community as a whole.
87. There is no rigid definition for what constitutes a judicial tribunal. As authorities show, it must depend on the circumstances surrounding the making of the decision in each case. But it seems that the touchstone of a judicial tribunal should comprise (at least) the three elements italicised above, namely adjudication, legal right and finality.
88. Where under the statutory framework, the decision-maker is not required to afford parties the opportunity of presenting evidence and argument, there is no adjudication and hence no room for the operation of res judicata. On the other hand, an administrative agency is capable of acting in a judicial capacity if it resolves disputed issues of fact when the parties have had an adequate opportunity to litigate. See Spencer Bower at para 2.03, citing Pastras v Commonwealth (1966) 9 FLR 152; see also footnote 26 to the same para.
89. In the present case, the rulings that will be made, or reliefs granted, in the second disciplinary proceedings and the present action are different. But there are overlapping factual disputes between the two. Therefore, any estoppel that would arise by res judicata in the present case would be in the form of issue estoppel in relation to the findings made on the common factual issues.
90. Issue estoppel is a sub-set of res judicata estoppel: see, eg, Ho Kin Man v Commissioner of Police [2014] 3 HKLRD 478 at para 10; Spencer Bower at para 1.05.
91. An issue estoppel applies to fundamental issues determined in any earlier proceeding which formed the basis of the judgment. Only determinations which are necessary for the decision, and fundamental to it, will qualify. Other determinations, however positive, do not: Spencer Bower at paras 8.01 and 8.23. It is not yet known what decision the Director will make in the second disciplinary proceedings and for what reasons. In theory, therefore, one cannot definitively say now whether the factual findings he will make would satisfy the above requirements. However, given the close correlation between the two proceedings and the nature of the overlapping issues, it is likely that they would do so.
The FSO
92. I am of the view that a factual finding made by the Director in disciplinary proceedings conducted within the framework under the FSO is capable of giving rise to issue estoppel in a subsequent court action. This is because, as a matter of statutory interpretation, his decision is judicial in the relevant sense. It is the end product of an adjudication which finally determines the legal rights of the person subject to the disciplinary proceedings, subject to the right of appeal.
93. The FSO contains elaborate and detailed provisions on disciplinary proceedings. I reproduce below the presently relevant provisions. I shall include those provisions applicable to “members of other ranks” (of whom the claimant is one) and omit those applicable to other members of the FSD.
94. The recital states that the Ordinance is:
“[t]o make better provision as to the constitution, duties and powers of the Fire Services Department and as to the discipline of members thereof and to make provision for the prevention of fire hazards, for the investigation into matters relating to a fire …”
95. The Director, subject to the orders and control of the Chief Executive, is charged with the supreme direction and administration of the FSD: section 5. He may authorise any member (not below a certain rank) to exercise or discharge any of the powers or duties which he by any enactment is entitled to exercise or required to discharge: section 6(2).
96. Part III of the Ordinance, which contains sections 12 to 16, is entitled “Discipline”.
97. Section 12 provides:
“Offences against discipline generally
Any member who commits any of the offences against discipline specified in the First Schedule shall be liable to be dismissed or otherwise dealt with as provided in this Ordinance and in regulations made thereunder.”
98. Schedule 1 is entitled “Offences against discipline” and sets out 13 categories of offence against discipline. There is no dispute that the 10 charges made against the claimant fall within Schedule 1.
99. Section 14 provides:
“Offences against discipline by subordinate officer and member of other ranks
…
(4) Whenever it is alleged that a subordinate officer or member of other ranks has committed a disciplinary offence, investigation shall be made into the allegation in the manner provided for by Part I of the Second Schedule and punishment may be awarded in accordance with the provisions of the Third Schedule.
(5) Notwithstanding section 6(2), the Director shall not authorize any other member to exercise the power of dismissal conferred on him by the Third Schedule.
(6) If proceedings against a subordinate officer or member of other ranks do not result in any punishment he shall be entitled to the full amount of the emoluments which he would have received if he had not been interdicted.
(7) If a punishment other than dismissal is awarded, any subordinate officer or member of other ranks may be paid such proportion of the emoluments withheld as a result of his interdiction as the Chief Executive thinks fit where the punishment is imposed by the Chief Executive or as the Director thinks fit in every other case.”
100. Part I of Schedule 2 is relevant. It is entitled “Rule of procedure for the investigation into offences against discipline by subordinate officers and members of other ranks”. It is necessary to reproduce it in full.
“1. Every charge shall be entered on a charge sheet.
2. Every charge shall be investigated by the Director in the first instance without delay in the presence of the accused and a full record thereof be made by the Director.
3. The charge shall be read and explained to the accused.
4. Evidence shall not be on oath.
5. The accused shall have full liberty to cross-examine any witness against him and to call any witnesses and make any statement in his defence.
6. No documentary evidence shall be used against the accused unless he has previously been supplied with a copy thereof or has been given access thereto.
7. The Director may at any stage of the proceedings amend the charge or add a new charge:
Provided that in such event the amended or new charge shall be read and explained to the accused who shall be entitled to have any witnesses who have given evidence recalled for further cross-examination and to call such further witnesses as he may desire.
8. At the conclusion of the hearing of a charge, the Director shall—
(a) if in his opinion the evidence does not show that some offence against discipline has been committed, dismiss it;
(b) if in his opinion the evidence does show that some offence against discipline has been committed, either—
(i) award a punishment within his powers; or
(ii) refer the case to the Chief Executive.
9. (1) Whenever the Director refers a case to the Chief Executive under rule 8(b) he shall forward—
(a) a typed copy of the record of proceedings (including the charge) certified by himself to be a true copy of the original thereof;
(b) a report setting out—
(i) his reasons for considering the charge proved;
(ii) his recommendations whether as regards punishment or otherwise;
(c) the accused’s conduct sheet.
(2) Whenever the Director so refers a case he shall inform the accused that he may within 14 days forward any further representations he may wish to make in writing to the Chief Executive.
10. Upon reference to him of a case and after consideration of any representations in writing of the accused, the Chief Executive shall—
(a) if he is of opinion that the charge has not been proved, either—
(i) dismiss it; or
(ii) order either further investigation by the Director, or a fresh investigation in such manner and by such person or persons as he may think fit;
(b) if he is of opinion that the charge is proved, or if, after any further or fresh investigation ordered under paragraph (a), he is of such opinion, shall award a punishment within his powers.
11. Every punishment awarded shall be entered in the conduct sheet of the member so punished.
12. Where the Director has delegated any function, power or duty to another member pursuant to section 6(2), references in rules 8, 9 and 10—
(a) to the Director, shall be read as if they were references to that other member; and
(b) to the Chief Executive, shall be read as if they were references to the Director,
but any case referred to the Director by another member pursuant to rule 8(b) (as modified by this rule) may be referred to the Chief Executive by the Director in accordance with rules 9 and 10.”
101. Part II of Schedule 3 sets out the punishment which may be given to a member of other ranks found guilty on a disciplinary charge. It ranges from, at the most severe end, dismissal without retirement benefit (para (a)(i)) to, at the most lenient end, reprimand (para (a)(vi)) and extra duties (para (a)(vii)).
102. Section 14B and Schedule 4 establish a mechanism for review and appeal. A member of other ranks has a right of appeal against a finding or punishment: section 14B(1)(a) and para 1 of Schedule 4. The Director may, of his own motion, review the finding or punishment: section 14B(3).
103. The rest of Schedule 4 spells out the appeal procedure in detail. Again, it is necessary to reproduce it in full.
“3. The appeal shall lie—
(a) to the Chief Executive, in respect of a finding made or punishment awarded by the Director; and
(b) to the Director, in all other cases.
4. Upon an appeal, the Chief Executive or the Director, as the case may be, may—
(a) confirm or reverse the finding;
(b) confirm the punishment;
(c) subject to rule 9, substitute any other punishment which could have been awarded in the first instance;
(d) remit the punishment in full or in part without substituting any other punishment;
(e) if he dismisses an appeal against a finding and no punishment has been awarded, treat the appeal as if it were a case referred to him for punishment and award any punishment or take any other action which he is authorized to take.
5. Upon a review under section 14B(3) the Director may exercise any of the powers in rule 4(a), (b), (c) or (d).
6. An appeal shall be made in writing within 14 days from the day on which the subordinate officer or member of other ranks is informed that he has been found guilty of an offence or from any later day on which punishment is awarded for that offence.
7. For the purpose of any appeal against a finding, the Chief Executive or the Director, as the case may be, may—
(a) take again the whole or any part of the evidence or accept in whole or in part the record of the evidence already taken; and
(b) hear any additional evidence which he may consider relevant,
and the Director may exercise the like powers where he reviews a finding under section 14B(3).
8. In the event of an appeal, any punishment (other than a reprimand or severe reprimand) awarded to a subordinate officer or a member of other ranks shall be suspended until the appeal is disposed of or abandoned.
9. Neither the Director nor the Chief Executive shall award a greater punishment under rules 4 and 5 without first allowing the subordinate officer or member of other ranks a reasonable opportunity to be heard or to make representations in writing as to why the punishment should not be increased.”
104. In my view, the legislative purpose and intention is plain and clear from a perusal of the above provisions. The FSD and its members discharge a vital public function in our society. The recital refers to the prevention of fire hazards. Our society relies on the FSD and its members to keep us safe from fire hazards. The integrity and discipline of members of the FSD is of fundamental importance to the proper discharge of this public function.
105. The elaborate provisions show that disciplinary offences committed by members of the department are, and must be, taken formally and seriously. The material provisions concerning discipline are crafted in mandatory terms. Section 12 expressly provides that any member who commits a disciplinary offence “shall” be liable to be dismissed or otherwise dealt with under the Ordinance. Where a disciplinary offence is alleged, investigation “shall” be made: section 14(4). The Director is expressly charged with the duty (which he can delegate in appropriate cases) to investigate into such offences and conduct the disciplinary proceedings in the prescribed manner. Para 2 of Part I of Schedule 2 provides that every charge “shall” be investigated by the Director in the first instance “without delay” and a “full record” be made by him.
106. The procedure in Schedule 2 ensures that the member charged with an offence knows what the charge is and affords him an opportunity to defend himself by giving evidence, calling his own witness, and cross-examining any witness against him. The Director, or his delegate, has a duty to pronounce his finding and, if applicable, award punishment or refer the case to the Chief Executive.
Adjudication
107. In my view, under the process, the member has an adequate opportunity to litigate, ie to present his evidence and argue his case. On the face of it, it amounts to a proper adjudication of the offence he is charged with.
108. In this regard, I note that, as revealed in the charge sheet in the present case, a presenting officer (主控官) will prepare the charge sheet and a briefing officer will serve the charge sheet on the member 28 days before the hearing. At the hearing, a presiding officer (主審官) will hear the case. The member is allowed to present his case by himself, a legal representative or a defaulter’s friend (助辯人). These detailed steps, albeit not provided for in the FSO, are clearly steps taken by the Director in the discharge of his duty under section 14(4).
Legal rights of an individual
109. The member’s legal right is clearly at stake. He faces punishment which substantively affects his career, remuneration and prospect as a member of the department.
Finality
110. He has a right to appeal against a guilty finding and/or his punishment. Detailed provisions are made in this regard. In the more serious cases, the appeal will lie to the Chief Executive. It can reasonably be expected that the whole process, from the commencement of the disciplinary proceedings up to the conclusion of the appeal, would take up considerable resources, in the form of manpower and costs (depending on the seriousness of the charge).
111. In the circumstances, while there is no express wording to that effect, it is clear that the legislative intention must be that once the right to appeal is exhausted, that is the end of the matter as far as the offence is concerned.
112. To suggest otherwise would lead to an absurd result. Having incurred much time and resources in going through an elaborate process of preparing and hearing the charges and, in some cases, an appeal going all the way to the Chief Executive, it would be absurd if the member or the Director could subsequently turn their back to the findings made in the process and say that those findings are not final and binding on them. If the parties are at liberty to have another go at the issues already determined in the process, it would be an anomalous outcome. It would mean that there is no finality on a matter of discipline, which is both a matter of public interest and a matter of private interest affecting the individual’s legal rights affecting his financial condition, career and reputation. The parties will have to undergo the hardship of being vexed twice (or more) in the process.
113. The statute has made it clear that disciplinary offences are serious matters. And it has entrusted the task of investigation into these offences to the Director. Once a conclusion is reached after the prescribed procedure is followed through, that would be final and conclusive as between the Director and the member concerned. (That is, however, subject to the caveat that decisions made in the process are amenable to judicial review if any of the well-established grounds are established as a matter of public law. And that is in fact what happened to the first disciplinary proceedings.)
114. In sum, on the face of it, the FSO contains a self-contained and comprehensive procedure governing how the Director or his delegate should discharge the duty with regard to discipline, which would affect the legal rights of the claimant. Applying Thrasyvoulou, there is a presumption that the decision made by the Director is final and is capable of giving rise to res judicata estoppel in future proceedings. In any event, in my view, even in the absence of such a presumption, the provisions of the FSO appear to be plain enough to support the same conclusion.
115. I shall now turn to the authorities cited by both counsel.
Res judicata as applied in the context of disciplinary proceedings
116. Ms Seto placed strong reliance on R (Coke-Wallis) in support of her submission that disciplinary proceedings can give rise to res judicata estoppel. (The case was referred to by the Court of Appeal in A Solicitor (60/12) v Law Society of Hong Kong [2013] 4 HKC 198 at para 43.) The English case concerned an earlier decision of the disciplinary committee of the Institute of Chartered Accountants in England and Wales in a complaint against the claimant, a member accountant. It was held that in view of the objects and powers of the institute as revealed by its byelaws, there was no reason why cause of action estoppel should not apply to successive sets of proceedings before the committee in respect of the same complaint. The dismissal of the first complaint was therefore an absolute bar to the proceeding in which the second (and same) complaint was raised.
117. It is notable that the disciplinary proceedings in that case, unlike the present action, were not based on statute. But Lord Clarke opined that the res judicata principle should apply. The provisions of the institute’s charter and supplemental charter are akin to statutory provisions and are therefore subject to the Thrasyvoulou principle: paras 27 and 29.
118. In my view, while the decision has no direct application to the present case, the authority is helpful in that it is an illustration and application of the Thrasyvoulou principle in the context of disciplinary proceedings.
119. Mr Leung contended that R (Coke-Wallis) is of no relevance in our case. It is authority for the proposition that there should not be successive sets of disciplinary proceedings in respect of the same complaint. It means that there should only be one bite of the cherry in the same forum. However, here, we are not concerned with successive sets of disciplinary proceedings. Therefore, it was submitted that no issue of res judicata arises.
120. Insofar as Mr Leung was submitting that R (Coke-Wallis) is authority for the proposition that a res judicata estoppel cannot arise on the mere ground that the subsequent proceeding is conducted in a different forum from the earlier one, I reject that as representing the position of the law. The submission is not valid, both on reasoning and legal authorities.
Cross-forum scenario
121. In a cross-forum situation, it seems more likely that issue estoppel, rather than cause of action estoppel, would be engaged because the different forums can be expected to have different jurisdictions and powers.
122. Where the conditions for an issue estoppel are satisfied, as a matter of analysis, there is no apparent reason why it should not operate merely because the subsequent proceedings take place in a different forum from the first. Mr Leung had not suggested any. The doctrine of res judicata is ultimately to work justice. It is a recognition of the public interest that there should be finality to litigation. Further, as between parties, neither one of them should have to endure the hardship or oppression of being vexed twice by the one and same cause. There is no reason why these policy reasons should not apply with equal force in a cross-forum scenario.
123. On authorities, Ms Seto cited William Henry Cowie. The plaintiff in that action was a former police officer. Whilst employed, he faced a disciplinary charge which was proven before a departmental board of enquiry under regulations made pursuant to section 12 of the Police Force Ordinance of 1932. He brought the action against the Attorney General, the cause of action being wrongful dismissal. Gould J held, as a preliminary issue, that the finding of the board of enquiry would estop the plaintiff from saying that he was not guilty of the charge in the civil action. This was based on his lordship’s ruling that the board of enquiry was a judicial tribunal and its findings were judicial decisions: paras 7 and 8.
124. Hence Cowie is a plain example where a res judicata estoppel arose where the forums in which the successive proceedings were conducted were different. In that case, the findings made by the board of enquiry in the course of statutory disciplinary proceedings gave rise to an estoppel in relation to those findings in a subsequent court action.
The claimant’s contention – no adjudication under the FSO
125. The main crux of the claimant’s contention is that a decision made by the Director in disciplinary proceedings conducted under the FSO does not amount to an adjudication and, therefore, do not give rise to any res judicata estoppel in subsequent proceedings. There are a few strands to the argument leading to that conclusion.
126. First, the express words used in the FSO.
127. Mr Leung attached significance to the word “investigation” used in section 14(4) and Part I of Schedule 2. He argued that it is clear from the use of the word that the Director is under a duty to make an investigation into the disciplinary offence, not an adjudication of the parties’ rights. Such investigation does not amount to an adjudication in the propose sense. He also pointed out that the word “tribunal” does not appear anywhere in the FSO. There is nothing in the statute to suggest that a tribunal or adjudication body is intended to be set up under the FSO to determine any dispute arising between the employer and the employees in the FSD.
128. While I agree that the choice of words is a relevant matter to take into account when ascertaining the legislative intent, the words used (or not used) must be interpreted in the overall context. In my view, Mr Leung has placed undue weight on the word “investigation”, without paying due regard to the other provisions of the FSO, eg, those provisions relating to the adducing of evidence by the member concerned. In any event, the notions of investigation and adjudication are not necessarily mutually exclusive. There is no apparent reason why the Director cannot “adjudicate” while he “investigates”.
129. Second, Mr Leung contended as follows:
“The purpose of the procedure is merely to enable the Chief Executive or the Director, as the employer, to inform himself or herself, through the Director’s investigation, whether the employee has acted in breach of his terms of engagement or in some other inappropriate way touching upon discipline, and if so, to decide how that should affect the future relations between the employer and employee. It is an assertion of a right under the employment contract.” (original emphasis)
130. On this point, he relied on Christou.
131. In that case, the claimants were employed by a local authority as social workers. They attended a disciplinary procedure. At its conclusion, they were given written warnings for their failings in the handling of a case, which involved the death of a child. Subsequently, fresh disciplinary proceedings were instituted against them in respect of the same incident and they were summarily dismissed for gross misconduct.
132. The claimants brought claims of unfair dismissal at the employment tribunal, arguing that they had already been disciplined once for the same matter and should not have been subjected to double jeopardy. If the claimants succeeded in their argument, it would mean that the subsequent disciplinary proceedings should not have proceeded and they should not have been summarily dismissed.
133. The Court of Appeal ruled against them and held that the exercise of disciplinary power by the employer was not a form of adjudication. The purpose was not to determine a dispute. The power arose by reason of the hierarchical nature of the relationship. The purpose was to enable the employer to assert his right as employer. He was protecting his own interests when making findings of fact and interpreting the contract in the process. As such, the employer was not an adjudicative body and the decision it made was not judicial in the relevant sense. Hence that would not bar the same matter from being looked into again in the subsequent proceedings: see paras 47 to 50.
134. In my view, same as R (Coke-Wallis), Christou is materially different from the present case in that the disciplinary action taken there had no statutory underpinning. Hence when it comes to determining whether the decision made was judicial in the relevant sense, the court’s approach was not a matter of statutory interpretation. It is therefore far removed from the present case and has no direct application.
135. In any event, Mr Leung’s approach here is overly narrow and therefore misconceived. His approach focuses solely on the employment relationship, without paying any (or sufficient) regard to the objective fact that under the FSO, the Director is also charged with the duty to serve the public by upholding and maintaining the orderly operation of the FSD.
136. Where a member is alleged to have committed a disciplinary offence, the Director is duty bound to make an investigation expeditiously. At the end of the investigation, he is under a duty to make a decision on whether the charge is proved and, if so, what punishment the member should face. In theory, one may analyse this as an employment-related matter as it affects the remuneration and career prospect of the member. However, from the viewpoint of the general public, more importantly, it is a matter of discipline. And the Director is tasked with the responsibility of, after due process, coming to a conclusion of whether a disciplinary offence has been committed. This is vital to the upholding of the integrity, standard and discipline of the department.
137. It is therefore wrong to characterise the Director’s action taken pursuant to the FSO as merely an act of asserting an employer’s right. That characterisation diminishes the role, power and duty of the Director and the vital public function he serves under the FSO. And I reject it. That is where the present case is different and distinguishable from Christou.
138. The third strand of the claimant’s argument on adjudication relates to the lack of independence of the Director.
139. Mr Leung submitted that under the FSO framework, there does not exist a body independent of the employer and the employee to determine a dispute between them. The fundamental principle is that a man may not be a judge in his own cause. If a judge is in fact a party to the litigation, then he is indeed sitting as a judge in his own cause. Owing to the lack of independence, the Director cannot be said to be adjudicating in the proper sense when making a ruling in the disciplinary proceedings.
140. In this regard, he also drew support from Christou.
141. Elias LJ commented on the importance of independence of an adjudicator:
“This is not to say that the doctrine of res judicata could never apply between employer and employee. It would, in my judgment, be open to an employer to agree that, say, a bonus payable to employees should be determined by an independent arbitrator, and I do not see why in principle the doctrine should not apply to any such determination. But that would not be the natural inference to draw whenever the employer adopts and applies disciplinary procedures staffed by his own personnel. The critical question is not the formality of the procedures, but rather whether they operate independently of the parties such that it is appropriate to describe their function as an adjudication between the parties.” (emphasis added)(para 51)
142. It would follow, the submission goes, that where the decision-maker is not independent of the parties, eg, where the decision would in fact affect the substantive legal rights of the decision-maker himself, then his decision does not amount to an adjudication of rights as between the parties.
143. Mr Leung emphasised that the doctrine of res judicata operates inter partes. Even where a procedure is in-built with safeguards to ensure fairness and due process (whether by statute or otherwise), the crux of the matter nevertheless rests on whether there is an adjudication of rights by a person independent of the parties affected by the proceeding, in the form of, eg, a judge, an arbitrator or an umpire.
144. Elias LJ remarked in the employment context thus, at para 48:
“The employer has a duty to act fairly and procedures are designed to achieve that objective. The degree of formality of these procedures will vary enormously from employer to employer. But even where they provide a panoply of safeguards of a kind typically found in adjudicative bodies, as is sometimes the case in the public sector in particular, that does not alter their basic function. It is far removed from the process of litigation or adjudication, which is in essence where this doctrine bites.”
145. On the inter partes point, in his oral submissions, Mr Leung argued that there should be someone “sitting in the middle” hearing arguments from both sides. Otherwise, the process cannot be described as adjudication in the proper sense.
146. To develop Mr Leung’s argument further in the special circumstances of the present case, if the Director’s finding in the second disciplinary proceedings does give rise to issue estoppel in the present action, this would mean that in respect of the overlapping factual issues, the Director is in a position to make a finding in the second disciplinary proceedings which will be favourable to his defence in the present action. In that case, he is in effect a judge in his own cause in the present action (at least in respect of the common issues). So, the argument goes that the issue estoppel should not apply.
147. Ms Seto’s reply to this strand of argument is that at common law there is no right to an independent tribunal. The emphasis is instead on the impartiality of the tribunal: Disciplinary and Regulatory Proceedings (9th ed) by Treverton-Jones QC and others at paras 3.03 and 3.21. Further, Cowie is an example where the decision of the departmental board of enquiry was held to raise an estoppel in a subsequent civil court action between the police officer and the Crown. Ms Seto submitted that Christou was decided per incuriam and should not be followed.
148. At the hearing, counsel disagreed on the constitution of the departmental board of enquiry in Cowie. More precisely, it is unclear whether the board comprised any individual outside of the police force. Counsel had not been able to retrieve the relevant regulations which would shed light on this. Hence it is not clear, Mr Leung submitted, that it can be relied upon as a precedent showing that a decision made by a non-independent person can amount to an adjudication.
149. Having considered the rival submissions, I am of the view that the requirement of independence, advocated by the claimant, is not a requisite requirement in order to engage the operation of the res judicata principle in the present case; and, the absence of such independence does not disqualify the decision made by the Director from being an adjudication. In this discussion, a decision-maker is “independent” in his decision if he does not have a substantive interest in the matter, personal or otherwise. Here, I am prepared to proceed on the basis that the Director does have an interest in the outcome of the disciplinary proceedings in the sense that his decision would affect the employment rights of the parties.
150. I note, as a starting point, that the description given in Spencer Bower does not stipulate independence of the decision-maker as a requirement of a judicial tribunal – see para 81 above. However, I note at the same time that in their discussion of the distinction between judicial decisions and purely administrative decisions, the learned editors cite the decision of the Supreme Court of New Zealand in Arbuthnot v Chief Executive of the Department of Work and Income [2008] 1 NZLR 13 in footnote 26 to para 2.03. In that case, Blanshard J held that the administrative body in question could not be relevantly judicial because “it did not have sufficient independence” (at 26). But counsel had not cited this case in argument.
151. In my view, it is reasonably clear from the judgment in Christou that the requirement of independence goes to the issue of adjudication. Much emphasis was placed on the origin of the disciplinary power in that case. Elias LJ said (at para 48):
“In the employment context the disciplinary power is conferred on the employer by reason of the hierarchical nature of the relationship. The purpose of the procedures is not to allow a body independent of the parties to determine a dispute between them. Typically it is to enable the employer to inform himself whether the employee has acted in breach of contract or in some other inappropriate way and, if so, to determine how that should affect future relations between them. …” (emphasis added)
152. Applying Christou, in the employment context, there is a need for an independent decision-maker to preside over the case in order for the decision to constitute a res judicata. This is because the private and substantive rights of both parties are at stake and in the case of a disagreement, whether over facts or law, the parties’ interests are potentially adverse to each other. Both parties would be “asserting” their respective rights. In such a case, for there to be a proper adjudication of the disagreement with the consequence that neither party can re-open the matter later, it only accords with common sense and logic that the decision-maker should be someone other than the two parties whose rights are in issue. The decision-maker should have no stake in the outcome. Only then would there a proper determination of their rights which will bind them in the future.
153. For the above reasons, I consider that the ratio of Christou as regards the requirement of independence applies to the employment context where the decision-making process is not governed by statute. It may of course be extended to other similar situations by analogy, where appropriate. However, the case should not be read as elevating the requirement of independence as an essential requirement in all cases. There is nothing in the judgment which supports this.
154. The main distinction between Christou and the present case is that the Director’s power and duty to make a ruling in disciplinary proceedings derives from statute. Mr Leung set much store by the employment relationship between the parties. However, it seems to me that the relevant provisions in the FSO are not primarily concerned with the regulation of the private rights of parties inter se. It is first and foremost concerned with upholding and maintaining the integrity, standard and discipline of members of the FSD. To achieve this objective, the Director is entrusted by the legislature to investigate into any alleged disciplinary offence, apply the prescribed procedure and make a verdict and, if applicable, award the appropriate punishment. In doing so, he is discharging the important function of protecting the safety of the general public.
155. The legislature has designated the Director to be the person in charge. His ruling may be favourable to the member concerned or it may adversely affect his interest. There is no doubt about it. However, as far as the Director is concerned, it can fairly be said that he does not have any substantive interest in the proceedings save for the protection of the general public. If he is asserting any right, it is a right asserted on behalf of the society as a whole. Understood in that sense, when conducting the disciplinary proceedings, he is not a judge in his own cause. I reject Mr Leung’s submission to that effect. He has no “cause” in the matter. Therefore, the considerations giving rise to the need for independence in the Christou type of situations do not apply fully here (or at all). The main differences are, as I see it, that the Director is discharging a public function here and he is doing so by the choice of the legislature.
156. Equally importantly, as remarked above, as the Director is discharging a public function, his decision is open to challenge on judicial review grounds. He must act lawfully and within his power as laid down by the FSO. He must comply with the rules of natural justice and act rationally. In other words, he is not acting without constraint. In the event that he is acting unlawfully, his decision is liable to be quashed. Where the judicial review process, if invoked, is concluded, that should and would be the end of the matter. It is generally recognised that public interest demands that disciplinary decisions be concluded reasonably promptly and once concluded, and any judicial review challenge ruled upon, the legality of that outcome should not be revisited as it should be considered settled once and for all: Ho Kin Man at para 29.
157. These are the control mechanisms inherently in place as check and balance against any abuse or unlawful exercise of power by the Director. All these do not feature in the employment situations contemplated in Christou. That provides another contrast between the present case and Christou. These mechanisms also provide the assurance that when it comes to the present action where the Director is accused of discriminatory acts and where issue estoppel is held to arise, the Director will not be judging in his own cause. This is because any decision he has made in the second disciplinary proceedings would not be allowed to stand if he has acted unlawfully and improperly.
158. To conclude, I hold that the independence requirement set out in Christou has no direct application in the present case. Even where the Director is considered not as an independent person by reason of the employment relationship with the claimant, that does not disqualify him as a judicial tribunal.
Does the Hollington principle apply?
159. As a separate point, Mr Leung submitted that any factual findings made by the Director would not be admissible as evidence in the present action. They cannot therefore be binding on the parties. Relying on Hollington, Mr Leung submitted that at common law a judgment or finding of another court or tribunal in earlier proceedings is inadmissible in subsequent proceedings. The rationale of the Hollington principle was explained in the Court of First Instance decision in Capital Century Textile Co Ltd v Li Dianxiao[2018] HKCFI 729. Lisa Wong J stated:
“In short, the exclusion of the factual findings and conclusions of an earlier court or tribunal from subsequent proceedings serves to ensure a fair trial, not in any general sense as suggested by Mr Tsang, but in the specific sense that the judge appointed to hear and determine the subsequent case makes his own decision on the evidence and submissions presented to him, without being influenced by the opinion of an earlier adjudicator.” (para 28)
160. Hence Mr Leung contended that the court in the present action would not be bound by any factual findings made by the Director in the second disciplinary proceedings. They would at most amount to his opinion and, as such, is not admissible in any event.
161. This submission can be quickly disposed of. The Hollington principle is subject to the operation of the doctrine of res judicata. In Capital Century Textile, the judge explicitly stated the exception as follows (section 62 of the Evidence Ordinance, Cap 8, was also referred to as an exception in respect of a domestic criminal conviction):
“It is trite that a judgment and factual finding of another court or tribunal in earlier proceedings, whether civil or criminal, is inadmissible in subsequent proceedings, unless the party against whom the finding is sought to be deployed is bound by it by reason of an estoppel per rem judicatam. See Hollington v F Hewthorn & Co Ltd [1943] KB 587 which, though controversial (and even considered to have been wrongly decided), has never been overruled. …” (para 23) (underline added)
162. I have concluded that issue estoppel is capable of arising in the present case. Hence there is no room for the Hollington principle to operate to render the findings of the Director in the second disciplinary proceedings to be inadmissible in the present action.
Parallel proceedings
163. To complete the analysis, one should take a step back and consider the practical outcome of the way forward advocated by the claimant. He says that the second disciplinary proceedings and the present action should be allowed to run in parallel. The court will not be bound by any findings made by the Director. No res judicata estoppel would arise. In the event that the court and the Director arrive at different factual findings on the common issues at the conclusion of the respective proceedings, Mr Leung submitted that it cannot be helped. The situation is unavoidable.
164. In my view, this is an anomalous result which could not have been intended by the legislature. The different factual findings can be totally irreconcilable. For instance, it is possible that the Director finds that the claimant did not suffer from the alleged mental illness whereas the court finds that he did. In that case, where do the parties stand? It would follow that rulings made in proceedings prescribed in detail by statute is capable of being overturned in practical effect by a subsequent court ruling. This would be a bizarre result. And that lends support to the conclusion that the determinations made by the Director are meant to be final and conclusive and would operate as a bar to parties trying to re-litigate the same point subsequently.
Summary on res judicata
165. In sum, the FSO contains a self-contained and comprehensive procedure governing how the Director should discharge the duty with regard to discipline, which would affect the legal rights of the claimant. Applying Thrasyvoulou, there is a presumption that the determination made by the Director is final. There is nothing which suggests that the presumption should be displaced. In any event, even in the absence of such a presumption, I am satisfied that the requirements for a judicial tribunal, namely adjudication, legal rights and finality, are met under the statutory framework. Hence the Director, in the exercise of such duty, should qualify as a judicial tribunal. I would therefore answer the question posed in para 75 with a “Yes”.
DISCRETION
166. I shall now turn to the case management question set out in para 62(c) above. One must bear in mind that the claimant commenced the present action as of right. For the court to stay the action, there must be a very good reason.
167. Here, in light of the common factual issues, it is undesirable, if not unworkable, for it to go ahead when the second disciplinary proceedings are under way.
168. In the event that the latter is concluded first (which is likely in my view given the scope of the issues involved), the court will very likely be bound by the factual findings made there on the common issues. The time and costs spent on those common issues in the present action will therefore be wasted. In the event that the court action is concluded first, equally, the time and costs spent on the common issues in the second disciplinary proceedings up to that point would be wasted. Furthermore, the court should be proactive in the case management of the present action so as to avoid any potential situation where conflicting decisions are made in the two sets of proceedings. All these factors point strongly to a stay.
169. On the other hand, if the present action is stayed and therefore delayed, I need to consider whether that the claimant will suffer prejudice as alleged – see paras 29, 55 and 56 above.
170. As regards the complaint that the Director has re-commenced the disciplinary proceedings in disregard of the claimant’s mental condition, I am inclined to share Ms Seto’s view that the claimant seems to be selective about the proceedings he would like to carry on. On the one hand, he complains about the effect of the disciplinary proceedings on him. On the other hand, however, he seems to have no problem carrying on with the present court action, which can be expected to induce at least the same stress and anguish.
171. The claimant has also deposed to the effect that he is at present suffering from financial hardship, which will no doubt be lengthened if a stay is granted. This factor should not be lightly dismissed. However, this only applies if the claimant eventually succeeds in the present action and is awarded damages and where that is the case, he will likely be awarded interest which would in some way compensate him for the period in which he is being kept out of the damages.
172. Overall speaking, the balance comes down in favour of a stay of the present action. In the circumstances, that would better serve the ends of justice as between the parties and the administration of justice in general.
CONCLUSION
173. For the above reasons, I make an order in terms of para 1 of the respondent’s summons. I also make an order nisi that the costs of the summons, including any costs reserved, be in the cause, with certificate for counsel, and that the claimant’s own costs be taxed in accordance with the Legal Aid Regulations.
| | (Winnie Tsui) |
| | District Judge |
Mr Paul HM Leung, instructed by Hastings & Co, assigned by the Director of Legal Aid, for the claimant
Ms Kay Seto, instructed by the Department of Justice, for the respondent