- 5-
(4).
it is not of a nature to which the principle sought applies.
In view of this conclusion it is not necessary for me
This to rely upon the Full Court decision of In re Yeung Lam is a curious case. Strictly speaking it establishes only that in circums tances similar to the present neither mandamus, nor certiorari will lie. But its authority may go further, for the reasons given for the decision are reasons generally accepted as excluding the audi alteram partem principle, namely that the power given to the Commissioner of Police was purely administrative and was one /: unfettered by any statutory requirement. These conclusions were
reached upon an argument conceded by counsel for the applicant which, with every respect, appears to overlook the comments of
(5) the House of Lords in Ridge v. Baldwin Then there was a ready
{
acceptance of the suggestion that misuse, or even deliberate abuse,
of that power was immaterial. This was a view not taken by the
(6) English Court of Appeal in R. v. Lord Leigh where a police authority misused powers it retained over one of its pensioners, and seems contrary to the general principle that the law looks to substance rather than form. Yet, despite conclusions that on their face would seem fatal to any approach, two of the members of the Full Court indicated that the applicant may have fared better if he had sought a declaration rather than a prerogative
writ.
It would not be proper to leave this action without commenting upon one matter of fact seriously in dispute, that is
the extent to which
was made aware of his shortcomings
·
and possible reversion before the conclusion of the course at Aberdeen. The records alone indicate several occasions when this was done. The course started on the 3rd Junc. On the 3rd August, at the end of the first stage, Hr. Horrin interviewed bach participant, discussed his progress and read to him his stage report (Exhibit 8 note 3). By that time Mr. Morrin had already received a separate written and unfavourable report upon Sergeant Khan (Exhibit 11). The joint stage report (Exhibit 5) lists sone of the matters complained of and concludes with the words "He will need to make a much grater effort and show a positive response to his training if he is to make the grade".. The emphasis is my own. The warning letter to which I have already referred was handed to
(4) [1968] H.K.L.R. 454
(5) [1964] 4.C. 60 at pp.75 and (6) [1897] 1 Q.3. 132
130