IN THE SUPREME COURT OF HONG KONG
Coram : Hon. Mr Justice Findlay in Chambers
Dates of hearing: 8 and 9 October 1996
Date of handing down of judgment: 15 October 1996
J U D G M E N T
1. The applicants were very lowly public servants in the Department of Housing. In 1994 and 1995, they were subject to disciplinaryproceedings for being absent from work without leave or permission and for making false entries in attendance books. As a resultof this, they were compulsorily retired or dismissed. In April and May 1996, they applied for leave to bring proceedings by way ofjudicial review. Leave was granted by Keith, J, who said that he had “not detected any significant or material difference betweenthese cases” and two other cases I had dealt with in January and February 1996 (Cheung Sai To and Au Man Wah; MP 3367 and 3368 of1995). Keith, J also extended the time in which the applications could be made.
2. In Cheung’s case, I quashed the findings of the disciplinary committees and the decision of the Governor’s delegate. I did this becausethere was a total failure to investigate whether or not the applicants in those cases had permission from their superior officersto be absent from duty, and whether or not their superiors knew that they made false entries in the attendance books. I found thatthese were “circumstances surrounding” the charges that the committees were expressly instructed to investigate.
The Present Application
3. The respondent now seeks an order that the leave granted by Keith, J be set aside on the grounds that there has been undue delayin making the applications, that good reasons for the delay have not been shown, that the granting of leave would be likely to causesubstantial hardship to, or substantially prejudice, the rights of the respondent or would be detrimental to good administration,and, as always, that there has been material non-disclosure.
4. Because of the way these matters were argued, it is necessary, to some extent, to go into the merits of the applicants’ cases.
5. It is quite clear that, during the relevant time, instances of absence from duty of very junior staff in the Housing Department,and making consequent false entries in attendance books, was rife. A total of 1171 officers were disciplined in respect of this behaviour;769 receiving verbal or written warnings, 365 were reprimanded or severely reprimanded and 37, including the nine I have mentioned,were removed from the service by compulsory retirement or dismissal. In Cheung’s case, Ms Dale Watson, who appeared for the AttorneyGeneral, correctly described the situation as “appalling”.
6. In the light of these circumstances, the evidence and my comments in the earlier case, one might have thought that it would havebeen thought appropriate for the government, if it did not already know, to investigate and find out the extent to which absencesfrom duty by very junior staff, with the consequent false entries in attendance books, was permitted, condoned or tolerated withinthe department. If there was a practice within the department to permit absences and false entries in attendance books, or to turna Nelsonian eye in their direction, this, everyone should have appreciated, must have had a important bearing on the culpabilityof junior officers who followed the practice. Certainly, I would thought, someone might have thought that for 37 officers to losetheir jobs, apparently without any warning, because they followed an established, although unjustifiable, practice might have beenharsh.
7. I do not know if the disciplinary authority has undertaken this investigation. If it has not done so, it has not properly investigatedthe circumstances surrounding the alleged charges against those disciplined. If it has done so, and has chosen not to put the factsbefore the court, the same situation prevails; it cannot complain if I draw the inference that it has not properly investigated thecircumstances surrounding the charges.
8. It cannot possibly be said that those responsible for disciplining the applicants did not had sufficient grounds to investigate thecircumstances I have mentioned. We know that at least three of those sacked have specifically described the lax practices of thedepartment, and others have hinted at it. But quite apart from this, I cannot be possible that it did not occur to some senior officerin the department to say “Just a minute. How is it possible for these people to be absent for such extended periods and so oftenwithout their superiors knowing about it? We must find out who allowed this to happen, and why.”
9. Mr Chan says that I must not look at the matter in this way. He says I must consider each case individually, and, if a particularapplicant did not raise the matter of this practice in the department, there was no obligation of the committees to investigate it.This is not so. The committees were only part of the disciplinary process. The committees were no more than fact-finding bodies.The Investigating Committee is required to make a report containing the record of the proceedings, the findings of fact and an opinionas to whether or not the facts amount to misconduct. This report goes to the Governor or his delegate. If that person is of the opinionthat the officer has been guilty of misconduct, he may inflict such punishment as may seem to him to be just. This person may, afterconsidering the report, require the Committee to make further investigations, to answer questions and ascertain facts. I do not knowwho this person was. He, or she, has chosen not to deal with the application for judicial review. Instead, Mr Law Wing Tak, an assistantdirector of housing, has filed an affirmation dealing with the applications. This is not satisfactory. I have said before that, whena person’s decision is brought on judicial review, it is that person who should answer the complaint. It is only that person whocan explain his decision, not some other person in the department concerned. As a result, I do not know if the person who “convicted”the applicants and imposed the punishment took into account the right factors and ignored the wrong ones. I do not know if that persongave any consideration to whether or not it was possible that an applicant’s superiors led him into believing that his absence fromduty would be condoned. Presumably that person was a senior officer in the department. He would have an overview of the whole messthat confronted the department. He would know that the situation was such that what had happened could not conceivably have happenedwithout the superiors of the workers concerned knowing about it and that the absences could not have been allowed to continue overan extended period of time without the superiors in some way condoning it.
10. On this basis, in my view, Keith, J was correct in saying that the cases of these applicants were similar to those in Cheung’s case.
Out of Time?
11. Mr Chan says that the applications for leave were well out of time, and, of course, they were. Leave should not be granted unlessthere is good reason for extending the period within which the application should be made. It should be noted that the law requiresa “good reason” for extending the period, not “good reason” for the delay. All the applicants say that they did not think of applyingfor leave until my decision in Cheung’s case came to their attention. The applicants applied for leave within three months, or withindays of three months, from the date of my decision. Clearly, Keith, J thought that was good reason for extending the period, or hemay have thought that the way in which the public service treats its junior employees was of public importance, and this also provideda good reason. I do not sit as an appellate body from the decision of Keith, J, and I do not think there was any sufficient materialnon-disclosure that would justify my interference with his decision.
Other Material Non-disclosure?
12. Mr Chan also complains that some of the applicants did not disclose to the ex parte judge that they had not raised the matter ofabsence with express or implied permission before the disciplinary committees. This is undoubtedly so, but it cannot be said thatthis was deliberate. What the applicants did or did not say before the disciplinary committees was a matter of record. The applicantscannot have hoped to conceal this. Keith, J gave leave because he thought the cases of the applicants were similar to the cases ofapplicants who had already been successful on judicial review, and, in my view, he was quite right to think so. Even if there werematerial non-disclosure, I exercise my discretion to allow the cases to proceed because I believe that justice demands this.
13. It is argued on behalf of the respondent that there is prejudice because some of the supervisors of the applicants are not availablebecause of the delay. This may be so, but the absence of some individual supervisors will not hamper an inquiry into the generalpractice in the department. That is what is of interest. What was the extent to which absences were tolerated or condoned, not whethera particular absence on a particular day was permitted?
14. Mr Chan accepts that, unless his case on this point is overwhelming, it is not appropriate to consider it at this stage. It is not,in my view, anything like overwhelming.
15. In the result, I can find no case for setting aside the leave granted, and the respondent’s application is refused. It seems, onthe face of it, that the applicants are entitled to their costs. I make an order nisi that the respondent pay the applicants’ costs.
Judge of the High Court
Miss Tracy Chan, inst’d by Messrs Paul CW Tse & Co and Messrs Chong, Luang & Co, for the Applicants.
Mr Edward Chan, QC, inst’d by the Crown Solicitor, for the Respondent.