Judicial review is a process in which the executive branch of the government and public bodies can be held accountable by the courts for how they make their decisions. It’s therefore often celebrated as an important manifestation of the rule of law, a mechanism that keeps power in check.
Much less talked about, however, is when an application for judicial review is plainly groundless and acknowledged by the courts as such. The lack of interest in these cases is unfortunate because it lets an opportunity go to waste: an opportunity to understand how a public body arrives at its decisions, with due care and under proper procedure.
Last month, the High Court refused an application from a citizen (the applicant) for judicial review of various decisions made by the Equal Opportunities Commission in handling a disability discrimination complaint.
The applicant had lodged a complaint with the EOC in March 2018 under the Disability Discrimination Ordinance, alleging that his employer had unlawfully discriminated against him because of his depression and another illness. The employer was said to have deducted his salary for his absence from the office, refused to let him use his vacation leave to cover the absence, and assigned him to a new position despite his objections based on medical reasons.
Justice requires decision-makers to be unbiased. Parties affected by a decision need an appropriate chance to present their case before that decision is made. Accordingly, the EOC contacted the employer requesting a response to the allegations, as part of its established procedure.
The employer explained that it had rejected the applicant’s applications for sick leave because he had failed to submit medical certificates issued by a government or Hospital Authority clinic, as required by the employer to prevent possible abuse of sick leave.
It also claimed that it had never forbidden the applicant to use his vacation leave to cover his absence. On the contrary, the applicant allegedly ignored repeated requests from the employer to make a valid application for vacation leave. It was on this basis that the employer eventually deducted his salary.
As for the job reassignment, the employer said it was merely implementing an existing policy, under which employees who had worked in the same unit for more than five years, would be subject to a posting arrangement.
After reviewing all the information gathered from both parties, the EOC took the view that there was not sufficient evidence of any unlawful act — the employer’s actions could not be said to be done as a result of the applicant’s disability.
The EOC then sent a letter to the applicant by registered post, informing him that the commission was considering discontinuing its investigation. Reasons were provided in the letter, including that the complaint appeared to be “lacking in substance” — one of the conditions stipulated by Hong Kong’s anti-discrimination laws in which the EOC can duly discontinue an investigation. In a further attempt to help the applicant, the EOC asked him in the letter to furnish new information, if any, within 14 days before a final assessment was made.
Yet the applicant did not make any reply by the deadline. The EOC thus issued another letter, informing him that the investigation had been discontinued. One day afterward, he emailed the EOC saying he had just received the first letter, and requested an extension of the deadline. Since he failed to provide any reason as to why he had not collected the letter in a timely manner, nor any new information regarding the complaint, the EOC declined the request.
Which takes us back to the application for judicial review. The applicant essentially made three claims: 1) the EOC’s refusal to extend the deadline was unfair; 2) the EOC’s decision to discontinue investigation was unreasonable; and 3) the EOC had failed to provide adequate reasons in explaining the discontinuation decision.
In refusing leave to apply for judicial review, the court dismissed all three claims as untenable. In particular, it noted that prior to the EOC’s final decision, the applicant had already been given an opportunity to provide comments on his employer’s response, as well as an extension of time on at least three occasions to share additional information if he so wished.
Nonetheless, not once did he indicate that he had new information to provide. Further, he had failed to show that he had suffered a substantive prejudice as a consequence of the EOC’s refusal to further extend the deadline. In these circumstances, there was nothing unfair about the EOC’s decision.
The court also agreed with the EOC’s assessment that there was insufficient evidence to establish a causal link between the employers’ actions and the applicant’s disability, an essential ingredient of disability discrimination. It follows that it was not unreasonable for the EOC to have discontinued the investigation.
Last but not the least, the court reconfirmed the principle that reasons given by a decision-maker can be brief so long as they meet the requirement of fairness, meaning that the person adversely affected by a decision should have an adequate indication of the reasoning process.
In this case, the reasons given by the EOC in its letter were held to be clear and adequate. Indeed, the EOC had gone to the lengths of explaining to the applicant why the alleged acts did not amount to disability discrimination, referring to relevant information throughout the explanation.
The court’s decision is no doubt a welcome one for the EOC, but it carries significance for everyone in Hong Kong. While the EOC is here to serve the public, it has to do so impartially and properly. This means ensuring that both parties in a dispute have an opportunity to explain themselves, as illustrated in this recent case.
It also means making the prudent decision of discontinuing an investigation when there is no evidence of an unlawful act and no new information can reasonably be expected to emerge. Otherwise, complainants who do have a substantial case may have their complaints stuck in the backlog.
After all, as the saying goes, “Justice delayed is justice denied”. The public wants efficiency. In 2021-22, the EOC not only exceeded its pledge of concluding 75 percent of cases within six months, but also saw a decrease in the average time spent on a case to around 100 days.
We have also enhanced our complaint-handling procedure following a review in 2018, notably by abolishing the practice of reassigning a case from one officer to another when its classification changes from an inquiry to a complaint. Consistent with our victim-centric approach, this ensures that aggrieved persons would not feel distressed by repetitive requests for information.
Looking ahead, the EOC will earnestly address people’s concerns and difficulties in daily life regarding equal rights by adhering to its core values of fairness and impartiality in serving Hong Kong. We are also confident that more people will begin to understand the meaning of the procedure we follow, and that it exists for the benefit of all.
The author is chairperson of the Equal Opportunities Commission.
The views do not necessarily reflect those of China Daily.