LEUNG KA LAU AND OTHERS v. THE HOSPITAL AUTHORITY

HCA 1924/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1924 OF 2002

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BETWEEN

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INDEX TO JUDGMENT

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J U D G M E N T

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Introduction : the present dispute

1. This case regrettably brings into the harsh glare of the courtroom a long-standing dispute between public hospital doctors and their employer, the Hospital Authority (‘the HA’).

2. The nub of the present dispute is that the doctors claim that for many years the HA has required them to work long hours without proper recompense, and that this is in breach of their employment contracts and of the Employment Ordinance, Cap. 57 (‘the EO’).

3. This action has its origin in two sets of proceedings in the Labour Tribunal which were originally commenced only in relation to the provision of rest days and statutory holidays.

4. The initial proceedings were brought on 15 March 2002, and involved 148 claimants in LBTC No. 2272 of 2002.  The second proceeding was instituted on 18 March 2002 by 23 claimants in LBTC No. 2432 of 2002.

5. The Labour Tribunal ordered these two sets of claims to be consolidated.  Six claimants abandoned their claims, and the remaining 165 claims were transferred to the High Court and became HCA 1924 of 2002.

6. On 15 July 2003, by Consent Order of that date, Registrar Chan gave directions for the trial of a ‘lead case’ involving three lead plaintiffs : Dr Leung Ka Lau, Dr Choi Chi Yee and Dr So Yung Pak.

7. By that Order, the remaining plaintiffs and the defendant HA expressly agreed to be bound by “any determinations of law or principle in the lead cases”, a procedure which mirrors that which was adopted in the case of Cheng Ho Kee v. Secretary for Justice, HCA No. 16883 of 1999, which proceedings had been brought by Correctional Services Officers dissatisfied with their compensation arrangements.

The parties

8. The plaintiffs are 165 doctors of differing seniorities and professional specialties who work (or have worked) in different departments or units in public hospitals in Hong Kong.

9. The three doctors selected as the ‘lead plaintiffs’ to present the lead case and to be representative of the plaintiffs en bloc are the 1^st plaintiff, Dr Leung Ka Kau, the 91^st plaintiff, Dr Choi Chi Yee, and the 77^th plaintiff, Dr So Yung Pak.  I ought at this stage to say a little about each of them, and I take them in this order because that is the sequence in which they gave evidence.

Dr Leung Ka Lau

10. Dr Leung is a surgeon specializing in General Surgery.  In many ways he is the moving light behind this litigation.

11. Dr Leung began his medical career some years before the HA was established to take over the management and control of public hospitals.  Thus, until 1 September 1992 he was a government doctor serving on civil service terms and subject to the Civil Service Regulations (‘the CSR’s’).

12. Since 1 September 1992 Dr Leung has been continuously employed by the HA and has served at the Prince of Wales Hospital pursuant to two contracts :

(1) From 1 September 1992 to 30 June 1995, pursuant to a contract evidenced by a letter from the HA to him dated August 1992;

(2) Since 1 July 1995, pursuant to a contract evidenced by a letter to him from the HA dated 26 June 1995.

13. Between 1998 and 2001, Dr Leung was a committee member of the Hong Kong Public Doctors Association, which is the principal staff association of doctors serving in public hospitals.  Dr Leung was the President of this association from 2001 to 2003, including that date upon which these proceedings were commenced in the Labour Tribunal.

Dr Choi Chi Yee

14. Dr Choi is a specialist surgeon also; her special interest is in the field of head and neck injuries.

15. She began her medical career as an intern (sometimes referred to as a ‘house officer’) on 1 July 1997, and since that time has been continuously employed by the HA to serve at various public hospitals :

(1) From 1 July 1997 to 30 June 1998, pursuant to an internship contract, as evidenced by a letter to her from the HA dated 14 May 1997;

(2) Between 1 July 1998 and 30 June 2001, pursuant to a contract as evidenced by a letter from the HA to her dated 8 June 1998;

(3) Between 1 July 2001 and 30 June 2004, pursuant to a contract as evidenced by a letter to her from the HA dated 17 April 2001.

16. At the time of this trial, Dr Choi was still serving at public hospitals, I understand principally at United Christian Hospital, under the employment of the HA.

Dr So Yung Pak

17. Dr So is a general practitioner.  Like Dr Choi, he began his medical career as an intern under the employment of the HA.  From 1 July 1999 to 17 May 2004 he was continuously employed by the HA pursuant to a series of contracts as follows :

(1) From 1 July 1999 to 30 June 2000 pursuant to an internship contract, as evidenced by a letter from the HA to him dated 14 May 1997;

(2) Between 1 July 2000 and 30 June 2003, pursuant to a contract as evidenced by a letter from the HA to him dated 19 June 2000;

(3) Between 1 July 2003 and 17 May 2004, pursuant to a contract as evidenced by a letter from the HA to him dated 7 May 2003.

18. Dr So ceased to be employed by the HA beginning on 18 May 2004, and now is in private practice.

19. All three of these doctors gave evidence.  There were no other viva voce witnesses of fact called on behalf of the lead plaintiffs.

The Hospital Authority

20. The Hospital Authority is a statutory body established on 1 December 1990 pursuant to the Hospital Authority Ordinance, Cap. 113.

21. With effect from 1 December 1991 the HA formally took over management and control of the 38 government and subvented hospitals and institutions and their then 37,000 staff; in very rough terms, the public hospital doctors, with whose terms of service this judgment is concerned, comprise about 10% of those employees.

22. There is some history to the establishment of the HA.

23. Prior to 1 December 1991, medical and health services in Hong Kong were provided through Government, Government-assisted and private organizations.

24. Subsequent to the Report on the Delivery of Medical Services in Hospitals by W D Scott (who was commissioned by the Government in 1985 to review the management of the public hospital system), and following public consultation, the Government concluded that an independently administered hospital system, in the form of a statutory Hospital Authority, should be established in order to oversee the management of public hospitals, and that there should be integration of the then dual system of government and subvented hospitals, with the Government continuing to be responsible for funding the public hospital service and for determining overall policy.

25. The HA is accountable to the Government through the Secretary for Health, Welfare and Food, whose responsibility is the formulation of health policies and monitoring the performance of the HA; under the Hospital Authority Ordinance, the resources of the HA consist primarily of money paid or provided by the Government to the HA, as voted by LegCo.

26. It is fair to say that over the years since the HA’s establishment, the demand for public health services in Hong Kong has grown at a very considerable rate, and that public hospitals have faced an extremely heavy workload : for example, the Minutes of the LegCo Panel on Health Services of 10 March 2003 record that Dr Yip Wai Chun of the Hong Kong Public Doctors Association pointed out that the public hospital doctors were facing a very heavy workload, as seen from the fact that the overwhelming majority (93%) of patients were being handled by the public health sector.  Dr Yip also is recorded as stating that public hospital doctors were facing escalating health demands also due to other factors : an ageing population, enhanced public expectation on service quality and medical advancement.

27. At the same meeting Dr Leong Che Hung pointed out that the problem of long working hours of public doctors “might be a resources problem [which] the HA might not be able to solve by itself”.  These were prophetic words. 

28. Prior to the transfer of employment to the HA, public doctors were civil servants whose conditions of service were governed by the CSR’s; after the HA took over responsibility for public hospitals most, if not all, public doctors became employed by the HA, and were invited to be employed upon new contractual terms.

29. In this connection, the evidence is that when a government doctor joined the HA on such new terms, his previous non-salary benefits, for example, pension entitlement, were translated into a cash amount, which thereafter became part of his monthly remuneration.

30. In broad terms, the HA employs roughly half of the doctors in active practice in Hong Kong.  In public health care terms the statistics are significant : currently the HA manages a Head Office, 43 public hospitals/institutions, 46 specialist outpatient clinics, and more than 60 general outpatient clinics.

31. At this trial two witnesses of fact were called to give evidence on behalf of the HA.  They were Dr Ko Wing Man, formerly the Director (Professional Services and Human Resources) of the HA and Dr Liu Shao Haei, the current Senior Executive Manager (Professional Services) of the HA.

The plaintiffs’ claims in overview

32. In this action the lead plaintiffs claim compensation for rest days and holidays for which allegedly they have been deprived, together with ‘overtime’ worked since 1996.

33. There is no particular significance in this date, which simply represents the statutory six-year limit immediately preceding the institution of the Labour Tribunal Proceedings in 2002; in his evidence, Dr Leung commented, with some feeling, that if the statutory limit had been longer than six years, his claim would have stretched back to an even earlier date.

34. There are thus three broad strands in the manner in which the current claim is formulated, although within these categories there undoubtedly exists a degree of overlap :

(1) The overtime claim

35. The ‘overtime’ claim which is being pursued embraces several concepts, and the outset it may be easier to define that which I apprehend that the doctors are not claiming under this head.

36. They do not say that within a normal working day that work in excess of that which is contractually referred to as ‘conditioned hours’, that is, their usual ‘office’ hours, should attract ‘overtime’ allowance.

37. That which they do say, however, is that for the periods when they are ‘on call’ outside such conditioned hours, they are entitled not to cash, but to time off in lieu to take account of such ‘overtime’ as has been worked during such ‘on call’ periods.  This might be conveniently categorized as the ‘general on call overtime claim’.

38. However the overtime claim as postulated within the Re-amended Voluntary Particulars extends also into the other two primary claims that are made in terms of work conducted on rest days and statutory holidays.

39. Thus, when the doctors were on call during a ‘rest day’ it is said that time worked on a rest day over and above the normal daily working hours itself should attract overtime – for present purposes this may be characterized as the ‘rest day overtime claim’; equally, when the doctors were on call on a public holiday, it is said that those hours worked on such a public holiday over and above the normal daily working hours also should attract overtime – this also may be characterized, for ease of reference, as the ‘holiday overtime claim’.

40. It thus may be appreciated that the plaintiffs’ case in regard to ‘overtime’ contains elements additional to the ‘general overtime’ concept.  For my own part I consider this formulation unnecessarily complex.  It is difficult not to regard the manner in which this case presently is put forward as having been unduly influenced by the legal advice that these plaintiffs have received; it is also not difficult to recognize, both within the constituent elements of the claim as now propounded and the evidence as it has been framed pursuant thereto, that there has been a degree of ‘lawyers’ spin’ injected into this litigation which in my judgment sits happily neither with the subject matter of this claim nor with the traditional ethos and culture of public medicine.

41. The stark fact is that ‘overtime’, be it in general or particular form, was not canvassed as a head of relief when these claims first saw the light of day; it is a matter of record that when the plaintiffs brought their case before the Labour Tribunal, they made only a ‘basic’ rest day claim and a ‘basic’ holiday claim, and in my judgment they were right in this approach.  The ‘overtime’ claims were added later only after these proceedings had been transferred to the High Court, and are pleaded out in full in the amended pleading which came into existence only after such transfer.

42. In my view, this case has always been about the public doctors’ fundamental dissatisfaction with the requirement that they work on their rest days and on public holidays, a fact which comes through clearly upon a review of the case papers.

(2) The rest day claim

43. The basic claim under this head comprises the situation wherein the plaintiffs were rostered ‘on call’ or otherwise were required to work upon days that should have been their weekly ‘rest days’.

44. It is important to note for the purposes of this case that the parties are agreed that the ‘rest day’ is to be taken as the Sunday.

45. Thus, the basic ‘rest day claim’ seeks corresponding days off in lieu of work on a rest day, which for these purposes encompasses work during normal daily conditioned hours.  To this basic claim is elided the ‘rest day overtime’ claim to which earlier I have referred.

(3) The holiday claim

46. This claim covers the situation wherein the plaintiffs were on call or otherwise were required to work on a statutory or public holiday without having been granted an alternate holiday in lieu thereof.

47. This may conveniently be characterized as the ‘holiday basic claim’, in contradistinction to the ‘holiday overtime claim’.

48. It may be appreciated, therefore, that in terms of their claim the plaintiffs advance five categories for consideration in this litigation.

49. In respect of their claims in all categories, the plaintiffs seek compensation in the form of time-off in lieu with pay, or alternatively in terms of pure damages awards.  In addition, the plaintiffs seek declaratory relief as to their legal entitlements.

50. Some idea of the scale of the relief sought in this case is gained by the following table, which is compiled from data contained in the Re-amended Voluntary Particulars pleaded by the lead plaintiffs, who have expressed their claims in numerical terms up to 30 June 2005.

(1) Figures are rounded to the nearest whole digit.

(2) When translating hours into days, 8 hours are taken to be 1 day.  The plaintiffs adopt a more complex basis when calculating monetary equivalents.

(3) Dr. So, no longer in the employment of the HA, nonetheless claims declarations as to his entitlement to time-off in lieu.

51. These figures are substantial.  Dr Leung’s ‘general overtime’ claim alone is calculated to amount to some HK$17 million.  In light of the fact that this is a ‘lead case’ for 165 doctors, which presumably also will be taken as the benchmark for the 4,600 or so public hospital doctors now working for the HA, it must be recognized that when extrapolated over the public health spectrum these claims, if substantiated, have significant implications both for the continued existence of the HA in particular, and for the provision of public medicine in Hong Kong generally.

The court's approach

52. The purpose of the present litigation is to establish legal principles relevant to a set of factual scenarios.  The parties have refrained from adducing detailed evidence and, for the most part, from factually challenging each other’s witnesses.  Neither side, for example, has sought to prove or disprove whether the HA had required a particular doctor to work on a particular day, whether that doctor had done so voluntarily or otherwise, and what work that doctor actually had performed.

53. At bottom, the objective facts are not in dispute.  What the parties now seek is this court’s judgment upon the legal effect of those facts.  Accordingly, in this judgment I set out the principles applicable to the various factual scenarios as revealed on the evidence.

Central issues : the ‘on call’ system and the ‘honorarium scheme’

54. Before attaching in detail to the constituent elements of the lead plaintiffs’ claim, I should make reference to that which I perceive as the two central factual elements which are woven into the tapestry of this litigation.  Absent an understanding of what these elements are, and how they work, it is difficult fully to appreciate the manner in which the lead plaintiffs approach this case.

The ‘on call’ system

55. It is common ground that public doctors in Hong Kong have an extremely heavy workload.  On normal days they start early in the morning and work late into the evening.  Their dedication to their task, and to their patients, is respected, admired and readily recognized by both the public and the HA alike.  As Dr Ko Wing Man, the HA’s principal witness, acknowledged : “It is known that doctors in the public hospital system have worked long and unsociable hours.”

56. It is a given in medicine that patients often require attention upon a 24 hour, 7 day a week basis.  It follows, therefore – and doctors are well aware of this fact when they enter the profession – that save for a few specialties involving little or no direct in-hospital patient work, doctors in public hospitals must be prepared for very long hours, and on many occasions will of necessity work overnight and also on Sundays and public holidays.

57. The practical means which has been devised to cater for the demands of patient care has been the ‘on call system’.

58. The purpose of the on call system is to ensure that there are doctors available to respond to, and to attend to patients’ needs after normal working hours.  Detailed arrangements may differ among different hospitals, and also among different departments, depending upon administrative practices and actual needs, but the basic idea is common to all.

59. The evidence is that the on call system operates by way of monthly rosters, known as ‘call lists’.  A call list is a document provided to all doctors within a department or unit which sets out who is rostered ‘on call’ upon which days.  Usually the call list is posted on the notice board within the nurse’s station in any particular hospital unit, and on occasion it is copied to other clinical units so that doctors in those units know whom to contact for consultation as and when the need arises.

60. Call lists are compiled by the more senior doctors in a medical unit.  For example, Dr Leung was for a period responsible for making the call lists for the doctors in his team, lists which he had to submit to his superior, the department head.

61. Call lists are not totally rigid.  Doctors may liaise with each other in order to swap their ‘on call’ days, although, understandably, it is not easy for doctors to swap a Sunday or a public holiday call.

62. The frequency at which a doctor has to be rostered on call varies according to the manpower strength of any particular department, both overall and in terms of the level of seniority of any particular doctor.  As the HA recognized, on call duties could be as frequent as one in every three nights for junior doctors; for his part Dr Leung, although relatively senior, was frequently on call for a period because he was the only senior medical officer on his particular team at that time.

63. When a doctor is rostered to be on call, he usually is on call for the entire day, not only after normal working hours.  According to Dr Ko, specific duties might be assigned to on call doctors even within normal daily working hours.  However, within the context of this case the description ‘on call’ is used to refer to the period after normal working hours until the beginning of work the next day; thus, for Saturday calls, that period would be from 1 pm on Saturday to 9 am on Sunday, and for Sunday calls the period would be between 9 am Sunday and 9 am Monday.

64. It needs to be borne in mind that being on call is generally in addition to normal hours of work, so that after a 24 hour period on call, a doctor may well have to work the next day; according to Dr So, on occasion a doctor might be permitted a half day off, that is, he could leave by 1 pm the following day, although this does not appear to be a common practice.

65. The thrust of the evidence is that more than one doctor in a department would be on call together on any given day, including interns and medical officers of differing seniority and clinical experience.  The manner in which this works is that the most junior doctor in the unit usually is the ‘first tier’ of call (‘first call’), whilst more senior doctors are put on higher tiers of call (‘second call’, ‘third call’ and so on).

66. Being on ‘first call’ means that the doctor in question has to respond at short notice and usually is expected to stay within the hospital compound.  This sometimes is referred to as being on ‘resident call’.  A doctor rostered on ‘second call’ may or may not be expected to stay in the hospital compound, depending on the hospital or department, whilst a doctor rostered on ‘third call’ typically is not expected to stay within the hospital compound, but would remain contactable, for example, via pager or mobile phone, and would make himself available in the sense of staying within a reasonable distance from the hospital; Dr Leung said in evidence that on emergency call this would be within 30 minutes of the hospital, and upon non-emergency call this parameter would be extended somewhat.

67. Depending upon the manner in which the particular department organizes its work, the activities of a doctor on call are wide-ranging and include making ward rounds, attending to ward duties, out-patient sessions, special procedures for certain patients (e.g., those in intensive care) and performing operations.  A doctor on call also will have to deal with consultations from other departments or hospitals, theatre cases overrunning, and so forth : as Dr Ko succinctly put it, “Medical practice is anything but routine”.

68. A doctor on ‘resident call’ usually is provided with a ‘call room’ where, in the periods between being actually called, he may rest.  A call room is not a dormitory, its facilities are limited and, if truth be told, fairly Spartan – it is used by whomever is on resident call on the particular day.

69. Nor does it follow that being provided with a call room means that a doctor gets any proper rest.  According to Dr Choi, for example, when she was on resident call as a junior doctor she often was called many times in the night; when she was able to rest, she left the lights on so that she would sleep only lightly and be in a position to respond readily to calls.  Often when on resident call she said that she slept or dozed in her work area instead of returning to her call room in order to maximize her available rest time.  For his part Dr So had similar experiences.

70. It is clear from the evidence that a senior doctor on a higher tier of call has more freedom and better rest opportunities.  To revert to Dr Leung’s case, depending upon whether his team was on ‘emergency call’, that is, responsible for the admission of emergency patients, he generally was expected to stay within the 30-minute distance parameter, although he explained also that since he lived close to his hospital, Prince of Wales, he usually was at home for the time period during which he was on call.

71. Dr Leung also said in evidence that, until 1 January 2002, if he was on ‘third call’ on a rest day or a public holiday that he would attend ward rounds in the morning, and that for the remainder of the day he was not required to stay at the hospital, but was expected to stay within a designated distance from the hospital.  He estimated that, when on third call, he would actually be called three or four times on average.

72. Dr Leung further explained that, when called, he would first deal with the call by giving brief advice over the telephone, but, where he felt the junior doctor calling him to be “not reliable”, he would himself decide to return to the hospital to attend to the patient.  Giving what he acknowledged to be “guesstimates”, Dr. Leung said that, prior to 1 January 2002 (when his clinical unit was reorganized) he spent 20% of the time on call beyond conditioned hours in the hospital, and thereafter he spent 10% of the time in the hospital.

73. It is quite clear – and indeed this is not the subject of dispute – that the ‘on call’ system puts special demands upon doctors, causing considerable strain and extending their work to unsociable hours.  Equally clearly, it is an inherent part of the practice of medicine in a public hospital environment, and is a situation that is universally encountered by public service doctors; as Dr Ko said, the on call system “is found all over the world for the purpose of facilitating 24-hour patient care.”

74. The plaintiffs of course do not dispute this contention.  They say that the HA has provided insufficient resources, specifically the number of doctors, properly to maintain the system, and that as the result of this shortfall their conditions of service and their contractual and statutory rights have been, and are being wrongly compromised.

75. However, before examining these allegations, it is appropriate to consider, in outline at least, the principal administrative measure that is prayed in aid by the HA in terms of its recognition of the working conditions of its public hospital doctors.

The honorarium scheme : its origin and development

76. The work patterns of the public hospital doctors are anything but recent developments.  Doctors have had to work for long hours for as long as the concept of public medicine has existed, and doctors consistently have made representations to health authority management about this problem.

77. In Hong Kong in the late 1980’s, the then Government Doctors’ Association actively lobbied the Government for better working conditions.  Its then chairman, Dr Dickson Chang, wrote in a letter dated 4 September 1988 to the then Chief Secretary, Sir David Ford :

“The perennial problem of loss of experienced doctors and doctor shortage has recently shown a dangerous trend of becoming critical … [It] is urgently required that practicable concrete proposals acceptable to staff be implemented to retain experienced staff and solve the staff shortage problem …”

78. The Government Doctors’ Association advocated, among other things, taking doctors (and dentists) out of the civil service master pay scale and providing for an independent pay scale.  In this respect, Dr Chang wrote :

“The medical and dental officer grade is distinct from the other professional grades in many aspects:

… 3)  Long working hours averaging 80 per week and these overtime work are not compensated in any way

… 5)  Working on all days of the year irrespective of weather, holidays, festivals and weekends thus sacrificing a lot [of] social life and causes tremendous disruption on family life.”

Under the heading “Overtime pay/Professional allowance”, the Association proposed to the Government :

“Government doctors in the hospital units work on average over 80 Hours per week ie nearly double that of the other civil service colleagues who work 44 Hours weekly, not to mention the differences in enjoying public holidays and weekends.  This should be adequately compensated and there are 2 options:

1)  Overtime pay according to the actual number of hours of work on-duty and on-call …

2)  … an easier way is to provide a professional allowance at 20% average for all grades of staff.  This is much easier administratively and is acceptable to staff.”

79. The Government responded in a letter dated 5 December 1988, from the Secretary of Health and Welfare Mr T H Chau, who wrote :

“… The many proposals put forward in your letter to improve the working conditions and terms of services of Government doctors have been studied most carefully by the Administration.  During the process of review in the last two months, officers from both this Branch and the Medical and Health Department have already indicated to your members of the complexity of the issues involved and the implications of the various options for improvement.

… certain of your proposals (such as the development of an independent pay scale for government doctors and the provision of a professional allowance to all doctors irrespective of the nature of their duties and hours of work etc.) could not be pursued in the short term because of their far-reaching implications for the civil service as a whole and because their basic concepts will require very detailed examination and justification which, inevitably, must be time-consuming.

We have come to the view that our immediate attention should focus on those proposals which could be implemented quickly.  These include the following:

… Honorarium

It has been accepted in principle that doctors who consistently have to work unusually long hours in order that certain services are properly manned due to shortage of manpower, should receive remuneration in the form of an honorarium.  Implementation of this proposal awaits the identification of such services and the calculation of the financial implications so that approval can be sought from the Finance Committee of the Legislative Council.  I understand the Department is in the process of discussing implementation details with your representatives.”

80. Three months after its written response to the doctors, the Government went to the Finance Committee of the Legislative Council.  In a paper number “FCR(88-89)208” prepared for a committee meeting on 8 March 1989, the Government sought approval of its proposals for certain honorarium payments.  In explaining its proposals, the Government wrote thus :

“Introduction

Since patient care has to be on a continuing 24-hour basis, an on-call system is maintained after normal office hours.  In practice, this means that some members of the team have to remain in the hospital, covering the period from 5 p.m. to 9 a.m. on weekdays and from 1 p.m. on Saturdays to 9 a.m. on Mondays.  Similarly, medical staff have to be on-call during public holidays.  These arrangements are essential to ensure that any new admissions as well as any deterioration in the condition of the patients can be attended to immediately.

Due to the acute shortage of medical staff, a situation exacerbated by the high wastage rate of experienced medical officers in the past two years, the majority of medical staff on on-call duties in certain very busy clinical units in government and subvented hospitals have to work consistently unusually long hours in order to maintain adequate medical supervision of patients outside normal officer hours …

The Secretary for the Civil Service has advised that although civil servants in the administrative and professional grades, irrespective of rank and pay points, are not eligible for overtime allowances and honoraria for overtime work under normal rules, the exceptional circumstances described … above justify the payment of an honorarium.  The consistently and unusually long hours of work undertaken by the medical staff concerned are significantly in excess of any normal overtime work normally expected of professional staff …

Proposal

… it is proposed that the following fixed rates of honoraria should be paid to the officers concerned in various specialties and services in government and subvented hospitals:

(a)   $3,500 per month for medical officers and senior medical officers working in the clinical units and services specified in Enclosure 1;

(b)   $1,750 per month for medical officers and senior medical officers working in the clinical units and services specified in Enclosure 2; and

(c)   $1,750 per month for consultants working in the clinical units and services specified in Enclosure 3.

A lower rate of $1,750 is proposed for the medical staff at (b) and (c) above because they work, on average, about half the overtime undertaken by those officers eligible for the full rate.

Since the honorarium is paid for the extra hours worked, it is further proposed that eligible officers who take leave in excess of 14 consecutive days should cease to be eligible for the appropriate honorarium for the period of absence.

Although overtime work is normally remunerated at a specific rate for each hour of overtime worked, such a basis is not recommended in this particular case for the following reasons:

(a)   there are about 1,400 medical officers in various ranks in both government and subvented hospitals who are undertaking on-call duties at significantly varying frequencies, from one in every four days to one in every ten days.  The frequency of on-call duties depends on the number of medical officers available in individual clinical units, and the number and medical conditions of patients in each clinical unit.  Furthermore, the actual time these officers are required to be physically present in the wards varies significantly.  Sometimes officers are required to attend to patients throughout the hours they are on duty whilst at other times they may only need to attend to one or two patients requiring one hour or less of ‘active duty’;

(b)   given scenario at (a) above, it would be difficult to establish equitable rates of allowances for active and non-active duties; and

(c)   more importantly, the logging of actual hours worked would create considerable administrative problems.  It would be difficult and costly to monitor actual hours worked in individual clinical units and administrative procedures devised might be open to abuse.”

81. At this juncture I pause to note that this LegCo paper apparently made no distinction between being on call overnight on weekdays and being on call over weekends, so that at this stage no consideration seems to have been accorded to the specific concept of ‘rest days’.  As will be noted later in this judgment, the Employment Ordinance makes ‘rest days’ a distinct category wherein employees have a statutory right to abstain from work; however, at the date of this LegCo paper, of course, public doctors were government employees, and as a matter of law the Government is not subject to the EO.

82. The Hospital Services Department announced these honoraria arrangements (which came to be called the ‘Honorarium Scheme’) in Standing Circular No. 7/89, dated 24 April 1989.  The circular is headed with the following note : “Distribution of this circular is Scale D.  It should be read by all Government doctors.”  It then explained the impracticality of “paying honoraria for extra working hours on an individual basis” and, in referring to the new scheme, further stated :

“A simpler system has been devised to recognize the varying degrees of requirement to work consistently long hours and to recompense the officers involved who are not entitled to earn overtime allowances under the normal rules.”  (Emphasis added.)

83. From time to time since the scheme’s inception, additional units became included, such that doctors in those units also came to receive the monthly honorarium payments.

84. Shortly after its first circular, the Hospital Services Department issued Standing Circular No. 24/89, dated 24 July 1989 and entitled “Clarification of determination of period of eligibility of fixed-rated honoraria payable to Medical & Health Officers”.  As was the case with the first circular, this document is headed with a note stating that it should be read by all government doctors.  It states the “basic criteria for deciding an officers [sic] entitlement in a designated unit” and explains :

“In general terms, an officer is entitled to the honorarium from the day he joins to the day he leaves an eligible unit provided that he works for 14 continuous days or more, the only deduction being for the number of days of leave taken, if taken in periods of more than 14 continuous days.”  (Emphasis added.)

85. It is common ground that when the HA took over the management of public hospitals in 1992, it inherited and has continued to operate the Honorarium Scheme.

86. I note also that when preparing to brief hospital staff about the option of leaving the civil service and joining the HA under contract, the HA compiled a “Questions & Answers Brief” for its briefing teams.  A document entitled “Questions and Answers on HA Remuneration Package”, dated 21 August 2001, includes the following questions and answers :

“… Special Allowance and Honorarium

… Q: Will doctors on call duty, public holiday’s duty and overtime work be properly recognised and calculated because they work in excess of the conditioned hours of work?

Ans: Doctors are already being paid an honorarium for the long working hours (including on call) put in by them.  Whether the rate of honorarium should be revised or the pay scale for doctors should be reviewed would have to be looked into further.

… Overtime Allowance

… Q: Is it possible to extend OT allowance to include all staff who work more than the conditioned hours per week while honorarium should be paid to all staff but reserved as recognition for exceptional service or situations?

Ans: A line has to be drawn somewhere on the eligibility for overtime payment.  There are already provisions in the HAPP&PM for the payment honorarium to those staff who are not eligible for overtime allowance for doing overtime work.

Likewise, it would not be appropriate to extend payment of honorarium to all staff which is intended to cover exceptional circumstances.”

87. In 1995, the HA introduced a new Compensatory Leave Scheme (which relates solely to statutory holidays) in addition to the Honorarium Scheme.  In its Operations Circular No. 13/95, dated 23 October 1995, the HA explained the Honorarium Scheme as follows :

“In order to provide adequate medical services and because of the need for continuity of care of patients, it has been a long established practice for the medical profession in the public hospital system to operate under an on-call system after normal office hours (e.g. from 5 pm to 9 am on weekdays, and from 1 pm on Saturdays to 9 am on Mondays) and during public holidays (including statutory holidays as provided for under the Employment Ordinance …).

In recognition of the exceptional circumstances of these doctors, the Government in April 1989 approved the granting of a fixed-rate honoraria [sic] (i.e. $3,500 per month for full rate and $1,750 for per month for half-rate) to doctors working in various specialties and services in public hospitals.  The Hospital Authority has inherited this practice since its management takeover in December 1991.  There is in place an arrangement for doctors to perform overtime on-call duties on rest days.”  (Emphasis added)

88. On the evidence before me, this final sentence, as emphasized, appears to have been the first occasion since the establishment of the HA three years earlier – at which point the Employment Ordinance had become statutorily applicable to doctors in public hospitals – in which the concept of ‘rest days’ had been mentioned specifically in connection with the Honorarium Scheme.

89. The HA later issued Human Resources Circular No. 40/96 dated 4 December 1996 in an attempt to “clarify the procedures involved in the payment of the fixed-rate honorarium”.  In effect, this document is an elaboration of the Hospital Services Department’s circular No. 24/89.  At one place, in substantially identical terms to the old document, the new circular stated :

“In general terms, an eligible employee is entitled to the honorarium from the day he joins to the day he leaves an eligible unit, provided that he remains working in the unit for at least 14 continuous days.”  (Emphasis added.)

90. The introduction of the new Compensatory Leave Scheme for statutory holidays prompted some questions from public hospital doctors.

91. For example, the 146^th plaintiff named in this action, Dr Subhash Jasoria, then an anesthesiologist at the Queen Elizabeth Hospital, wrote to the hospital’s Chief Executive in a Memorandum dated 31 May 1996, and raised a number of queries about holidays and rest days; in particular he asked why he and his colleagues were placed in the situation in which effectively they had no day off in the working week, and whether “compensatory time off” could be given to an employee.  This stimulated a chain of correspondence.

92. The Deputy Director (Human Resources) of the HA responded to Dr Jasoria in a memorandum dated 18 June 1996 :

“Currently, HA is granting an honorarium to some medical officers to cover and recognise the excessive overtime they have to work during rest days and all holidays.  However, since it is stipulated in Section 40A of the E.O. that ‘no payment of holiday pay shall be made in lieu of the grant of a (statutory) holiday’, it has been decided that in addition to the honorarium paid, compensatory leave be granted to an employee who has worked on a statutory holiday.

… It is a statutory requirement for an employee to be granted 1 rest day (either paid or unpaid) in every period of 7 days, and the rest days shall be granted in addition to any statutory holiday.  However, in accordance with Section 20(2) of the E.O., ‘an employee may, at the request of his employer, work for his employer on a rest day.’  In this connection, it should be noted that a [sic] honorarium has been granted to some medical officers to cover overtime worked during rest days mentioned … above.”

93. In turn, Dr Jasoria sought further clarification.  In a memorandum dated 24 June 1996, he responded :

“Since you have brought up the topic of the overtime honoraria, please let me know what is the scope of this payment … It definitely is not a bondage to slavery, hence the overtime honoraria cannot be used for asking the employee to perform beyond the requirements of the law and reason, or to deprive them of benefits that are granted to all other employees of the HA …

Finally I would like to apologise for any inconvenience caused.  I feel that having to work for nearly twenty-eight days in a month without a break is a bit unreasonable and harsh.  This is what my roster is for the current month.  At the same time it is up to now a difficult task to obtain time off for the days worked which are designated as holidays by the HA.”

94. Dr Jasoria’s enquiries appeared to have stimulated attention at the highest levels of the HA.  His memorandum led to several rounds of correspondence with Mr David Weller, signing for the Chief Executive of the HA.  This correspondence was copied to the HA’s Deputy Director (Operations), Queen Elizabeth Hospital’s Chief Executive, and the hospital’s Chief of Service (Anesthesia).

95. In a memorandum dated 20 February 1997, Mr Weller informed Dr Jasoria :

“We have provided [your Chief of Service (Anesthesia)] with HR inputs on the issues raised, to facilitate her formulation of a ‘complete reply’ to your memo which also involves a number of operational issues requiring attention of the hospital management.”

96. What these “HR inputs” were is not directly in the evidence.  But in a memorandum from Queen Elizabeth Hospital’s Chief Executive, Dr York Chow (now the Secretary for Health, Welfare and Food), to the Deputy Director (Human Resources) and the Deputy Director (Operations), dated 25 February 1997 (a memorandum which has received considerable profile in this case), Dr Chow wrote :

“DD(HR) has advised that, it is legally acceptable if a staff forego [sic] the fixed-rate honorarium and opt for all rest days.  However, it is absolutely unacceptable on operation side as it may ruin the on call system of our Dept of Anaesthesia and perhaps other clinical departments.  Indeed it would have a corporate wide implication rather than a local issue.

Unless HAHO have a concerted line on this policy, I could hardly take-up this case.  I would consider it is appropriate for you both to sort out this case instead of passing the responsibility to the hospital.  I am afraid I cannot take up the role to interpret the HA policy on behalf of the Head Office.”

97. I have been informed by counsel for the HA, Mr Huggins SC, that the HA has claimed legal privilege over the internal legal advice, referred to at the outset of Dr Chow’s memorandum, dealing with the relationship between the honorarium and rest days.  It is tolerably clear, however, from Dr Chow’s memorandum that there was a clear view within the HA that it was open to the doctors to forego the honorarium and to take the rest days, but that this option, for all practical purposes, was a non-starter for operational reasons.

98. Indeed, at trial, the HA’s witness Dr Liu Shao Haei admitted that the HA has no policy to the effect that doctors could swap the honorarium for rest days, and furthermore never had promulgated such options to its doctors.  According to Dr Liu in his oral evidence to this court, at the time of this correspondence, there was “some discussion in the HR department” about doctors foregoing the honorarium and taking rest days, but no further action was taken within the HA.  Indeed, it is not in dispute that the public hospital doctors never were told by the HA about this option being available to them; as Dr Liu stated, “the HA does not put forward such options for our doctors” and that “it never has been promulgated to the doctors”.

99. In the circumstances perhaps it can be understood why this should have been the case.  On the one hand, the Honorarium Scheme, if it was to relate to rest days, cannot be mandatory in terms of requiring doctors to work on rest days.  Such clearly would run foul of the specific provisions of the EO.  But neither, as a matter of practical operational expedience, could the HA afford to let doctors request their Sundays off.  There simply would be no doctors on duty.  As Dr York Chow had succinctly stated in his memo of 25 February 1997, this might “ruin” the whole system.

100. In fact, the relationship between the honorarium on the one hand and rest days on the other, which in turn raises the thorny issue of estoppel, is one of the two most difficult legal issues in this case, the other being the relevant categories of ‘on call’, and whether such constitutes ‘work’, as the doctors now maintain.  But this is to anticipate the analysis.

101. I turn now to specific consideration of the three principal elements constituting the plaintiffs’ claim.

(1) The overtime claim

102. I deal with this aspect first because in my view it is the easiest of the three claims to resolve; it has little attraction and less substance.  As earlier observed, this is the aspect of this claim which the 165 named plaintiffs did not mount at the time when they commenced these proceedings in the Labour Tribunal; in evidence the lead plaintiffs acknowledged that they did not think that they had a claim under this head until their lawyers had advised them to this effect.

103. Perhaps it is not surprising that the doctors themselves had failed to appreciate that they were entitled to overtime, not least because the notion of ‘hourly based’ recompense for overtime fundamentally is inconsistent with the culture, ethos and tradition of the medical profession.  Indeed in cross-examination Dr Leung specifically agreed with the proposition (abstracted from a November 2000 Report on Doctors’ Working Hours in HA Hospitals) that :

“The doctor’s responsibilities for continuing patient care transcend normal working hours.  In order to provide timely treatment to patients and to save lives, it has long been an established practice worldwide for doctors working in hospitals to work with [sic] an on-call or shift duty roster basis so as to provide 24-hour service coverage.  In HA, all medical staff are expected to work overtime and to perform on-call duties in line with the operational requirements of the specialty according to their appointment condition.”

104. The claim for recompense for overtime or time-off in lieu thereof also represents by far the largest component of the lead plaintiff’s claims in that this claim is based on ‘work’ undertaken on each day on which they were on call; thus, the division of the claim into general on call overtime, together with overtime incurred on rest days and on statutory holidays and public holidays.

105. It is a somewhat startling proposition, from which Dr Leung did not shrink in cross-examination, that the lead plaintiffs now maintain that, whenever they were rostered on call for a 24 hour span, that beyond the ambit of their conditioned hours ‘overtime’ was incurred simply by reason of their being on call, irrespective of where they were, and whether or not they in fact were called and had carried out any active duties.

106. I agree with the contention of the HA that in this context the central question is one of construction of the relevant contractual materials.  The HA contends, in my view correctly, that these materials variously consist of the letters of appointment, the Honorarium Scheme, and the Human Resources Policies Manual (‘HRPM’).

107. In considering the issue of construction I bear in mind that the appropriate approach is that as set out in the seminal judgment of Lord Hoffman NPJ in Jumbo King Ltd v. Faithful Properties Ltd [1999] 4 HKC 707, at 726D :

“In my respectful opinion, the judge’s approach was far too narrow and literal.  The construction of a document is not a game with words.  It is an attempt to discover what a reasonable person would have understood the parties to mean.  And this involves having regard, not merely to the individual words they have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects it was intended to achieve.  Quite often this will lead to the conclusion that although there is no reasonable doubt about what the parties meant, they have not expressed themselves very well…the overriding objective in construction is to give effect to what a reasonable person rather than a pedantic lawyer would have understood the parties to mean.  Therefore, if in spite of linguistic problems the meaning is clear, it is that meaning which must prevail.”

108. The starting point is the letters of appointment of the three lead plaintiffs which contain provisions relating to hours of work.  The relevant terms in the Senior Medical Officer (SMO) and Medical Officer (MO) letters of appointment fall into three forms of wording :

(1) Dr Leung’s 1995 letter of appointment as SMO, at para 4, and Dr Choi’s 1998 letter of appointment as MO, at para 9, provided in identical terms :

“Your normal hours of work will be 44 hours per week but you may be required to work overtime depending on the exigencies of your work.  Your Head of Department/Unit/Section will advise you of your work schedule.  In addition, you may also be required to work shifts to provide 24-hour coverage.”

(2) Dr. Choi’s 2001 letter of appointment as MO, at para 8, and Dr. So’s 2000 letter of appointment as MO, at para 9, provided :

“Your normal hours of work will be 44 hours per week but you are expected to work overtime and perform on-call duties in line with prevailing policies depending on the exigencies of your work and the operational requirements of individual specialty.  At the absolute discretion of hospital management, a fixed rate honorarium may be payable to you in recognition of the additional work done.  Your Head of Department/Unit/Section will advise you of your work schedule.  In addition, you may also be required to work shifts to provide 24-hour coverage.”

(3) Dr Choi’s 2004 letter of appointment as MO, at para 8, her 2005 letter of appointment as MO, at para 8, and Dr So’s 2003 letter of appointment as MO, at para 8, provided in identical terms :

“Your Head of Department/Unit/Section will advise you of your work schedule.  You are expected to work overtime and perform on-call duties in line with prevailing policies depending on the exigencies of your work and the operational requirements of individual specialty.  At the absolute discretion of hospital management, a fixed rate honorarium may be payable to you in recognition of the additional work done.  In addition, you may also be required to work shifts to provide 24-hour coverage.”

(4) The letters of appointment of Dr Choi and Dr So as interns respectively both contained an identical term, at para 2.3 :

“The working hours for the Employee may vary depending upon the operational needs of the Branch/Division/Department/Unit to which he is posted.  In some cases, the Employee may be required to work shifts to provide 24-hour coverage.  The Employee will be advised of the exact work schedule by the Head of Department.”

109. There is nothing in these letters of appointment which places the objective reader on notice that a claim for ‘overtime’ is maintainable in any of the forms now claimed, or at all.  To the contrary, the letters of appointment of Drs Choi and So specifically refer to “a fixed rate honorarium … in recognition of the additional work done.”

110. Moreover, although the words of the opening paragraphs of the various letters of appointment of the lead plaintiffs differ slightly, all of them stipulate that in substance the employment offered was subject both to the prevailing HRPM and the rules and regulations of the HA from time to time.

111. This begs two questions : first, the ambit of the other contractual terms relevant to the plaintiffs’ claim for overtime, and second, what is the impact of the Honorarium Scheme?

(a) The contractual terms of employment

112. As to the first question, the plaintiffs’ contentions are essentially thus.

113. They say that under Chapter B2 of the HRPM, every employee, including doctors, has “conditioned hours”, such being “the official hours of duty applicable to [the] individual employees”.  This “forms the basis for the calculation of basic salary, cash allowance and other benefits as appropriate.”  The plaintiffs say, correctly, that their conditioned hours are 44 hours per week.

114. The plaintiffs then refer to a number of sections in Chapter E4 of the HRPM, a chapter entitled “Overtime Allowance”. 

115. In this chapter, section E4.1.1 defines overtime as “work undertaken over and above an employee’s conditioned hours of work (as defined in Chapter B2) regardless of the time of day at which it is undertaken”.  Section E4.2.3 states, “Overtime work should normally be recompensed by time-off in lieu.  Where this is operationally impracticable within a reasonable period from the date on which the overtime is worked, an overtime allowance may be paid to eligible employees.”

116. The plaintiffs acknowledge that, under section E4.3.1, that doctors (but not including interns) are not eligible for overtime allowance because of their seniority in the pay scale; it is common ground that these lead plaintiffs have too many points on the HG Pay Scale and thus fall outside the parameters of this section, which states that :

“Employees in ranks whose scale maximum is on or below Point 25 of HGPS and whose scale minimum is on or below Point 19 of HGPS and employees remunerated from the HA Model Pay Scale are eligible for Overtime Allowance, with the exception of:

(a) employees in grades and ranks where the need to attend for duty outside normal conditioned hours is necessitated by the nature and level of responsibility of the job and has been reflected in the pay scales; and

(b) employees remunerated from the HA Training Pay Scale and other employees under training who are required to attend duty beyond conditioned hours in connection with their training.”

117. However the plaintiffs mount the tendentious argument that, although doctors are not eligible for overtime allowance, nevertheless they are entitled to time-off in lieu.

118. To this argument the HA makes a three-pronged response.

119. First, that as a matter of simple construction the terms of the contracts show that doctors are expected to work overtime and are not entitled to overtime allowance or time-off in lieu.  Second, that this is a matter which always has been clearly understood by both the doctors and the HA.  Third, precisely because it was recognized that under the terms of their contracts that doctors were not entitled to compensation for overtime, the doctors had lobbied for, and the Government, and later the HA, had implemented the Honorarium Scheme in specific recognition of such long hours; thus, the HA maintains, the Honorarium Scheme compensates both for the overtime and, more importantly, acknowledges that the doctors’ contracts otherwise do not provide for compensation for overtime.

120. Let me advert briefly to each of these points.

(i) Construction

121. At trial and in written submissions, each side spent some time on section E4.4.3 of the HRPM, which in terms states :

“Overtime work is payable after one hour’s work either at the start or at the finish of a shift.  Thereafter, overtime is payable for the actual time worked rounded off to the nearest half-hour.  No time-off in lieu will be recompensed if the overtime does not qualify for Overtime Allowance.”  (Emphasis added.)

122. It is the HA’s contention that the emphasised sentence means simply that doctors, who do not qualify for overtime allowance, also do not qualify for time-off in lieu.  In other words, that they are expected to perform overtime duty absent additional compensation.

123. The plaintiffs counter-argue that the second sentence is qualified by the first and, indeed, by the whole of section E4.4, which is generally concerned with the basis of calculation of overtime allowance.  In other words the plaintiffs contend that the second sentence applies only to employees who are eligible for overtime allowance, i.e. not doctors.

124. In support of their respective interpretations, each side made reference to the history of the evolution of the HRPM, dating back to the time when equivalent or similar provisions were in the form of Civil Service Regulations.  There is no necessity to recite the details.  Suffice to point out that the emphasised sentence within section E4.4.3, upon which the plaintiffs (or more accurately, the plaintiffs’ lawyers) now place such importance, did not find a place within the CSR’s.

125. Moreover, when this sentence first had appeared, in exactly the same wording, within the November 1991 version of the HRPM, it was a freestanding provision and demonstrably had the effect for which the HA now contends.  This sentence appears to have been moved to form part of section E4.4.3 in the 1994 amendments to the HRPM.  Counsel for the HA has described this as an unfortunate development, the effect of which has “allowed lawyers to play [word] games.”  I agree.  I also take this opportunity to say that I disagree with the contention of Mr Wong SC, counsel for the lead plaintiffs, that the 1994 amendments constituted a “fundamental change” in approach.  It was nothing of the sort.

126. It is important to note that neither HA nor the plaintiffs had behaved any differently after the 1994 amendment.  Indeed, as far as Dr Leung knew, there had been no change in the regime as it was applicable to doctors, and in my judgment the objective data clearly indicates that this single sentence, which has been the focus of extended argument, had been intended to have precisely the same effect as prior to the 1994 amendment.

(ii) Clear understanding of doctors

127. The fact that doctors are not entitled to overtime compensation, whether in overtime allowance or time-off in lieu, appears on the evidence to have been clearly understood by the public doctors.

128. As earlier noted, in 1988 Dr Dickson Chang, then chairman of the Government Doctors’ Association, in a letter to the Chief Secretary, wrote that “[doctors in government hospitals have] long working hours averaging 80 per week and these overtime work are not compensated in any way”, whilst, as earlier noted, the lead plaintiffs themselves have acknowledged in evidence that they did not think they had such a claim for overtime until their lawyers had advised them of it. 

129. In my view it is extraordinary for the plaintiffs now to assert otherwise.  It is also extraordinary for them to have been advised that there is a seriously arguable entitlement to overtime when both the terms of contract and the surrounding circumstances manifestly do not support such a proposition.

(iii) Honorarium Scheme

130. The plaintiffs’ claim in this regard is rendered further unarguable when addressed in light of the provenance and ambit of the Honorarium Scheme.

131. At the outset let me say that I do not consider that Chapter E2.6 of the HRPM, entitled “Honoraria”, which appears within Chapter E2 which is headed “Special Allowances and Honoraria”, has any bearing whatever on the present debate; both Dr Leung and Dr So accepted that the two schemes are separate and distinct with, fundamentally, the rate of honorarium under Chapter E2.6 being variable whereas the Honorarium Scheme to which these plaintiffs are subject provides a fixed rate of payment.

132. The Honorarium Scheme was put in place precisely to recognize that doctors work many hours of overtime, for which they would not otherwise have received any compensation.  Such is clear from the development of the Scheme, which I have thought it important to set out in some detail earlier in this judgment.  In my judgment the existence of the Scheme reinforces the simple proposition that doctors are not, and indeed never have been, entitled to an ‘overtime allowance’ or to time-off in lieu.

(b) Impact of the Honorarium Scheme

133. The HA makes a further point in relation to the Honorarium Scheme.  It contends that Scheme forms part of the HA’s “rules and regulations” to which the plaintiffs’ employment was subject.

134. I accept this contention.  Indeed, in her evidence Dr Choi accepted that the Honorarium Scheme formed part of her contract through the rules and regulations of the HA, as did Dr So.

135. I entertain no doubt that at the time when each of the lead plaintiffs entered into their respective contracts of employment that this scheme indeed did form part of the HA’s rules and regulations; there are defined criteria for eligibility, and well-defined mechanisms for its operation, as set out in the relevant Circulars promulgated to the public hospital doctors.

136. As Dr Ko commented in evidence, and as I accept, if the HA issues a Circular which is applicable and which touches upon the working condition and contract of particular employees, then such should form part of the contract or regulation governing the conditions of service of the particular employees.  In this context, I note that Circular 40/96, which describes an eligible employee as being “entitled” to the honorarium, is one of the circulars that has remained in force throughout and which, on the evidence, always was accessible to the public doctors.

137. There is no doubt but that the honorarium forms part of an eligible doctor’s wages, and is for example taken into account in the calculation of wages in lieu of notice upon termination of employment.  I bear in mind, also, that the Honorarium Scheme did not provide a mere discretion to the HA to pay the fixed rates; to the contrary, it provided a monthly entitlement to the lead plaintiffs if they came within the specified criteria for payment of this allowance (which they did).

138. Moreover, I note that in Dr Choi’s 2001 letter of appointment as MO there is express reference therein to “a fixed rate honorarium [which] may be payable to you in recognition of the additional work done”, which clearly was a reference to the Honorarium Scheme to which these doctors’ employment was subject.

139. I have little hesitation in concluding that since the Honorarium Scheme is part of the contract, and clearly was intended to be recognition for doctors working overtime, the plaintiffs’ claim under this ‘overtime’ head must be dismissed.

140. Lastly under this head, I should say something, also, about the position of interns.  Part of the lead plaintiffs’ claim, at least in terms of the cases of Drs Choi and So, relates to the period in which they were interns.

141. The interns’ position on the pay scale is not such that prima facie it disqualifies them from overtime allowance.  But section 4.3.1 applies in another way.  The section states that “employees under training who are required to attend duty beyond conditioned hours in connection with their training” do not qualify for overtime allowance.

142. It is difficult to think of a better example of “employees under training” than interns.  The overtime claim as mounted in this action on behalf of interns is an absurdity.   The one-year period of internship is a requirement for becoming a full doctor under section 10A of the Medical Registration Ordinance (Cap. 161) and section 3 of the Medical Registration (Miscellaneous Provisions) Regulation.  It is during this year when interns learn to practice medicine by working as junior doctors.  As Dr So, the youngest of the lead plaintiffs, acknowledged, it would be impossible to separate the training and working aspects of internship.

143. Given that section 4.3.1 is applicable to interns, the like analysis as is referable to full doctors brings me to the like conclusion; interns are not, and never have been, entitled to additional recompense for ‘overtime’.  This is an extraordinary proposition with no analytical basis whatever.

144. In fact, Drs Choi’s and So’s letters of appointment as interns do not even mention “conditioned hours”.  In my view this reinforces the clearly understood position that interns have to work very long hours.  Such was part of their training; in no way would they receive special compensation for the additional hours of such training.

145. Accordingly, in so far as a claim on behalf of interns is seriously maintained under this head through the lead plaintiffs, Drs Choi and So, this claim also is dismissed.

(2) The rest day claim

146. I turn now to the ‘rest day’ element of this case, the second major element within the lead plaintiffs’ claim.  Unlike the overtime claim, in my judgment this aspect merits serious consideration.

147. The plaintiffs say that they have been consistently deprived of their rest days, to which they are contractually entitled.  They also say in this context that the HA consistently has been in breach of the requirements of the law on rest days as set out in the Employment Ordinance.

148. The HA disputes this case, and in any event puts the doctors to proof of their claims in this regard.

149. The HA says that prima facie it has granted rest days to its employees on every Sunday – which for the purposes of this case is accepted by both sides to be the relevant ‘rest day’ – but acknowledges that from time to time its doctors were indeed on call and/or did ward rounds on Sundays, which in turn raises the contested issue of whether being on call and/or doing ward rounds constitutes ‘work’ such that the doctors could be said to have been deprived of their rest days or of their statutory right to abstain from working on a rest day.

150. Within the context of this argument the HA’s contention is that this court also should proceed on the basis that in fact there were occasions when the lead plaintiffs were on call on Sundays, but that the issue of precisely how many Sundays are involved, and the extent of work done on those days, is a matter for the quantum stage.

151. I accept this broad approach, and for the purpose of this judgment I consider only the various arguments arising in terms of applicable principle.  Whether, on the basis of such applicable principle, the parties wish further to litigate individual cases, or whether the HA and the doctors will seek administratively to settle their differences upon the basis of the principles herein adumbrated does not seem to me greatly to matter.  That which both parties now wish is resolution of the primary argument.

(a) Relevant contractual and statutory provisions

152. The starting point for any debate of this nature must always focus upon the primary contractual and statutory provisions.

153. There is, I think, little dispute in this area, which is dealt with in Chapter F1 of the HRPM.  Section F1.1.1 provides thus :

“Objective

It is the objective of the Hospital Authority to grant its employees:

(a)  a break from their work by providing paid annual leave on an earned basis; and

(b)  leave of absence with pay on public holidays gazetted by the Government, or alternative holidays if leave cannot be granted on the gazetted public holidays.”

It is common ground that the term ‘public holidays gazetted’ includes Sundays, and that for the purpose of this case this clause forms an integral element within the lead plaintiffs’ rest day claim.

154. As to the statutory position within the Employment Ordinance, the key provisions are as follows :

155. Section 17(1) of the EO states that :

“… every employee … shall be granted not less than 1 rest day in every period of 7 days.”

156. Section 19(1) provides that :

“… no employer shall require an employee to work on any of his rest days.”

157. Section 20(2) states that :

“An employee may, at the request of his employer, work for his employer on a rest day.”  (Emphasis added.)

158. Section 2 defines “rest day” to mean :

“… a continuous period of not less than 24 hours during which an employee is entitled … to abstain from working for his employer.”  (Emphasis added.)

159. Central to the rest day claim is the concept of ‘work’ and whether being on call constitutes ‘work’.  The answer to this, it seems to me, is that some categories of ‘on call’ fall into this classification, and some do not.  It may be useful at this stage to arrive at some conclusions in terms of these ‘gradations’ of call.

(b) Gradations of 'on call'

(i) Resident call

160. Common sense decrees that, if a doctor is required to stay at his hospital, he is ‘at work’.  This does not depend upon whether and how many times he is called during the period; the very reason for having a doctor on resident call is because someone has to be there to care for the patients.  The doctor on resident call is, literally and metaphorically, ‘the first port of call’.

161. The overwhelming probability, therefore, is that a doctor on resident call in fact will be called and will have to attend patients.  According to Dr Choi, when on resident call work is so busy for her that at best she would only get about four hours’ sleep in aggregate; often she slept in the work area instead of returning to her call room in order to maximize rest time.  Dr So said he had similar experiences.

162. In terms of ‘resident call’ the HA does not accept that in itself that such amounts to ‘work’.  The HA maintains that further enquiry is necessary into the amount of time that a doctor on ‘resident call’ actually worked in the wards and the amount of time in which he was not in the wards.  This, the HA says, is because the wards – not the call rooms nor elsewhere in the hospital – are the doctor’s ‘place of work’.

163. In this context the HA relies upon the Court of Appeal’s decision in Cheng Ho Kee & Others v. Secretary of Justice, CACV 54 of 2004, unreported, 7 November 2005.  In this litigation, a number of Correctional Services Officers working in prisons claimed that, when doing “overnight on call” in the Correctional Services Department’s residential and recreational facilities immediately outside the prisons, they nevertheless were at their “place of work”, and therefore were entitled to overtime allowance, it having been agreed between the parties that if such facilities were not the officers’ “place of work”, no issue would arise in terms of entitlement to overtime allowance.

164. In this argument the HA relies upon the observation of Stock JA that “a place of work, in this context, is a place to which the officer regularly reports for his routine active duty …”  From this the HA argues that, since doctors routinely report to work in their wards, their call rooms do not represent their place of work.

165. In my view this argument is flawed.  Stock JA’s observation presupposes the concept of “a place” and its geographical confines.  In the particular context of that case, the “place” was clear.  Stock JA referred to “common parlance”; in Cheng Ho Kee the “place” was the prison.  Equally, for doctors, in my view their place of work is the particular hospital or clinic or associated medical facilities.

166. In addition, in Cheng Ho Kee Tang JA noted, quoting Hartmann J’s first-instance judgment in HCA 16883/1999, unreported, 9 February 1994, that the more junior prison officers had to stay within the prison for “sleep-in, stand-by” duties, and there was no dispute but that they were entitled to overtime allowance.  In this regard, Tang JA observed, further quoting Hartmann J, that those staying outside the prison provided “a reserve of officers” who, after being on shift, “are (invariably) off duty for 24 hours”.

167. Indeed, Hartmann J in his judgment in Cheng Ho Kee had used the example of doctors on call to illustrate his interpretation of the law, observing that, “The doctor who must remain at the hospital to make himself immediately available in case of need is, in my view, standing-by at his place of work.  I say that even if he is provided with a room in the hospital where he may rest.”  Hartmann J, of course, made these remarks in the hypothetical in the case then before him.  But in my view they equally serve to illustrate the obvious common-sense approach to characterizing a doctor’s ‘place of work’.

168. In my judgment Cheng Ho Kee clearly is distinguishable on its facts.  The situation for doctors on resident call is far from analogous to the prison officers on call outside the prison.  If anything, their case is akin to those junior prison officers staying inside the prison.

169. It follows that I have concluded, and so find, that doctors on resident call are at their place of work, and are working, for the entire period in which they are on such resident call.

(ii) On call outside the hospital

170. Being on call outside the hospital strikes me as a wholly different matter.  In this instance the doctor clearly is not the first port of call; he is quite removed from the patients – and from the place of work.  Dr Leung estimated that he would be called, by pager or telephone, three to four times.  He further stated that, when called, he would give brief advice over the telephone, but if he felt the junior doctor calling him to be “unreliable”, he would decide to return to the hospital.

171. But as Dr Leung acknowledged, in this situation he is essentially free to go about his social and family life while on call outside the hospital.  The loss of freedoms he pointed to were : (i) to stay within 30-minute distance of the hospital; (ii) not to drink alcohol; and (iii) to remain mentally ready.  In my view these are matters which essentially come with the job, and in themselves are insufficient to justify the classification of ‘outside call’ as in itself constituting work, particularly when coupled with the fact that it is the doctor himself who exercises judgment on how to handle any call as is in fact made.

172. I therefore conclude that a doctor is not ‘at work’ or ‘working’ simply by virtue of being on call outside his hospital.  Likewise the giving of brief advice by telephone, in my view, is not to be thus characterized.

173. However if a doctor on non-resident call in fact is called back to the hospital, in my view in this instance he would be returning to ‘work’.  In this connection there remains the problem of quantifying such ‘work’ – a return to the hospital of one hour does not (and perhaps should not) equate, for example, to a return for a period of, say, five hours, but problems as to quantification should not affect analysis of broad principle.

174. This conclusion broadly accords with that of the House of Lords in Suffolk County Council v. Secretary of State for the Environment and Another [1984] ICR 882, a case which was relied upon by the HA.

175. In that case, the House of Lords held that the obligation of a retained part-time fireman to keep himself available for responding to calls was not in itself employment.  Their Lordships held that his hours of work began only when called.  This case and that of the present are, of course, factually very different, and I bear in mind the distinction that in the English case the House of Lords there was considering a differently worded contractual provision (as to entitlement to pension) and therefore that the part-time fireman had some degree of choice in not responding to a particular call; equally that case revolved around that which was connoted by ‘employment’ as opposed to ‘work’.

176. Viewed thus, Suffolk County Council v. Secretary of State for the Environment clearly is far from directly on point, but in so far as it is of any assistance to the current debate, the rationale underpinning the leading speech of Lord Templeman emphasizes that hours of employment do not include hours devoted to an activity which is pursued for the benefit of, and at the choice of, the employee.  By analogy, it is not easy to appreciate why a doctor who is on call, but who nevertheless is not called and is doing that which he otherwise wishes to do, should legally be characterized as at ‘work’ or ‘working’.

177. I would add that the conclusion which I thus have reached, namely that a doctor on non-resident call, but who is not in fact called, is not to be considered to be ‘working’ is, in my view, consistent with the conclusion reached in Cheng Ho Kee wherein the prison officers were subject to a Civil Service Regulation that expressly disqualified them from claiming any overtime allowance if they were on call at a location other than their place of work.

178. The plaintiffs in the present case are, of course, subject to no such provision.  I bear in mind that doctors on call outside their hospitals have considerably more freedom than the prison officers who were required to remain in off-site recreational facilities; it would be odd if prison officers outside their prison were to be classified as not being at their place of work, which was the reasoningunderpinning the decision in Cheng Ho Kee, but that the position of doctors on call outside the hospital was to be accorded a quite contrary status.

179. I further note that this conclusion also is consistent with that in Leung Kam Keung v. Secretary for Justice, HCMP 4920/2002, unreported, 3 November 2004, wherein Barma J held that a welfare worker employed by the Housing Department, and given family quarters in the housing estate, is not ‘at work’ when on call at home.  Once again, it would be curious if a welfare worker on call at home within his housing estate is not at work, whilst a doctor on call at home outside his hospital was to be characterized otherwise.

180. During argument Mr Huggins SC for the HA also raised the possibility of a doctor, when on call outside the hospital on a Sunday, being called on the Sunday afternoon.  Counsel argued that in this situation the doctor would have had 24 continuous hours of rest since he got off work at 1 pm on the Saturday, and thus would have had his rest day.  In my view this argument is misplaced.  For the purpose of this litigation the parties expressly have agreed that the HA has appointed Sunday as the designated rest day.  It seems to me that whether the ‘on call’ doctor goes to the hospital in the Sunday morning or the Sunday afternoon, in such circumstance he nevertheless is working on his rest day.

181. Mr Wong SC for the plaintiffs also advanced the argument that whether a doctor has worked at all during the period on call is immaterial.  The question, counsel argued, should be whether the doctor was entitled to abstain from working.  This is so because, he said, the HA breached section 17 of EO immediately upon its removing the plaintiffs’ entitlement to abstain, which, the plaintiffs contend, occurred as a matter of fact upon their names appearing on duty rosters as being on call on any rest day or holiday.

182. Since I have already held that a doctor on resident call is at work for the whole period, this argument is relevant only in relation to the situation of a doctor on call outside his hospital who might be called in to work at some point during the on call period.

183. The evidence is that the doctor himself would decide whether to return to work.  Neither party has ventured into the circumstances of when a doctor would return to work and of how he would decide so to do; in the premises, I am disinclined to conclude that a doctor is deprived of his entitlement to abstain from work simply because he might be called, and that he himself then might decide to return to work.

184. I suspect, also, that the relevant provisions of the EO were drafted with reference to employees in a very different predicament.  One readily can understand, in the context of an employee with very little control over his work and very little bargaining power with his employer, that in order to protect him the legislation speaks in terms of requiring the employer to give the employee a 24 hour period in which he is entitled to ‘abstain from work’.  But in my view a senior doctor is in an entirely different situation.

185. Accordingly, fitting the doctor’s factual situation into the legislation as fairly as I can, I do not see him as having been required to work until circumstances arise such that, in his best professional judgment, he is required to, and does, return to the hospital to work.

(iii) Post-duty ward rounds

186. What, however, is the position of the doctor whom, after being on call on Saturday 9 am until 9 am on Sunday, then has to stay for two additional hours until 11 am on Sunday to make a post-duty ward round?  It may be argued that in this instance such intrusion into his freedom is not great, since he would be completely free from 11 am Sunday to 9 am Monday; in this regard, one might even suggest that this doctor enjoyed greater freedom than the doctor on call on Sunday outside the hospital.

187. The parties have not focused, either in evidence or in legal argument, upon the circumstances in which a doctor might be required to stay for a post-duty ward round.  This matter remains subject to evidence.  However, since the parties wish this court to pronounce upon legal principles, I now proceed on the basis that sometimes doctors indeed are required to remain in the hospital to make post-duty ward rounds.

188. There is no question but that, in the scenario I have described, during those two extra hours in the hospital, the doctor indeed is ‘working’ in the true sense.  He thus would have only 22, not 24, continuous hours of rest.  This clearly would be a breach and contrary to the terms of section 17 of the EO, and of section F1.1.1 of the HRPM.  On the other hand, it seems to me that equally it would be unjust for the HA to be liable to compensate the doctor for an entire day, when the doctor has had the benefit of substantially a full day of rest.  This aspect, however, is more properly a matter for quantum assessment, with which I deal at the conclusion of this judgment.

189. On the basis of the foregoing, therefore, in my judgment the lead plaintiffs have succeeded in establishing the basis of their claim for wrongful deprivation of rest days, to which there is no doubt that they are contractually and statutorily entitled.

(c) The HA’s admission of sometimes breach

190. Looked at in the round the HA accepts that on occasions there has been such deprivation, and, it must follow, a breach of primary contractual obligation.

191. In this regard the evidence of Dr Liu is of assistance.  He said that the policy of the HA always has been that the HA needs to comply with the law in Hong Kong, that all the doctors would be given one rest day in every week, and that if he or she was to be required to work on that day, the HA would need to arrange an alternative date.  In this regard Dr Liu maintained that the situation “has been improved” over previous years, but he acknowledged, also, that there would be situations where, because of available manpower and service requirements, the HA could not act completely in accordance with the law, and thus that this default still is occurring within some of the HA’s clinical departments, albeit in his evidence he did not have the names of those departments readily to hand.

192. In this connection Mr Wong SC has submitted that Dr Liu’s evidence brings into sharp focus the fundamental complaint of the lead plaintiffs as to rest days.  He said that the HA clearly in the past, and to some extent in the present, has sought to subordinate the doctors’ entitlement to rest days to its administrative and operational needs, and he asked the court for “an authoritative pronouncement” that the law has to be observed, and that the HA must grant rest days to its staff irrespective of service requirements.

(d) The HA's potential defences to the rest day claim

193. In this regard it seems to me, doing the best that I can to distil the position, that the HA has put forward three distinct submissions.  Let me deal with each in turn.

(i) Honorarium Scheme

194. First, the contention is made that the Honorarium Scheme is inclusive of rest days, which leads to the result that by their acceptance to date of the honorarium payment the doctors now are no longer able to pursue the claim in terms of lost rest days.

195. Earlier in this judgment I have set out in some detail the provenance of the Honorarium Scheme.  The history is prolix.  That which clearly emerges from this historical survey, however, is that from origin until in or around 1995 the Honorarium Scheme was concerned exclusively with ‘overtime’, although, of course, it is true to say that for all practical purposes this included overtime in, and absent any distinction in terms of, the weekends, I suspect because in those days Sundays were not specifically categorized as ‘rest days’ because the Employment Ordinance has, and then had, no application to Government.

196. However, when the HA was established in 1992 the HA became subject to the provisions of the EO.  This clearly caused consternation within the higher administrative echelons of the HA.  The problem was considerable in terms of hospital administration.  On the one hand there were not enough hospital doctors to go around, and to provide the continuous high quality of service of which the HA justly is proud.  On the other, there now was an unequivocal (and prima facie unanswerable) legal requirement, by virtue of the application of the EO, to provide the very rest days to the public hospital doctors which hitherto had been sacrificed upon the altar of the HA’s administrative and operational convenience.

197. The administrator’s apparent solution to this dilemma was intriguing; it also came rather late in the day, given that the EO had been applicable as a matter of general law since 1992.  With some ingenuity the concept of a rest day as forming a constituent element within the honorarium was elided with the existing concept of ‘overtime’, and henceforth began to appear as such in the relevant administrative circulars : on the available papers Circular 13 of 1995 appears to be the first recorded instance of this phenomenon.

198. This Circular established the new Compensatory Leave Scheme which related to statutory holidays; however, this Circular (quoted in extenso at page 28 of this judgment) also specifically referred to the then existing Honorarium Scheme, and it reads, inter alia :

“…in recognition of the exceptional circumstances of these doctors… the Government in 1989 approved the granting of a fixed-rate honoraria…to doctors working …in public hospitals.  The Hospital Authority has inherited this practice since its management takeover in December 1991.  There is in place an arrangement for doctors to perform on-call duties on rest days.”  (Emphasis added).

199. Thus began to be propagated that which I have come to regard as the myth that the Honorarium Scheme, as to the underpinning and rationale of which the lead plaintiffs (whose evidence I accept in this regard) have said that they were less than clear, encompassed also the giving up by the doctors of their contractual and statutory entitlement to their weekly rest day.

200. When the Honorarium Scheme was first established, it may have covered work on weekends (including Sundays) in the context of ‘overtime’.  But in my view it does not follow, when rest days became a statutorily applicable concept, that this new statutory entitlement automatically was ‘swept up’ within the existing Honorarium Scheme.

201. On the HA’s own case, this Honorarium Scheme was intended to give recognition to doctors where otherwise they would not have been entitled to anything, that is, in terms of overtime.  It is difficult to see how the HA now can argue that the very same Scheme also can be said to have been, and to be, intended to compensate doctors when they became statutorily entitled to something, that is, in terms of rest days.  It seems to me that the doctors cannot be deprived of their rest days by what amounts, in effect, to sleight of administrative hand.

202. It follows that I reject unequivocally the notion that the Honorarium Scheme is the correct analytical answer to the doctors’ rest day claims.  In my view it is nothing of the sort.  In my judgment that which the Honorarium Scheme has achieved in this context is to form a convenient ‘smoke screen’ when the HA has been confronted by that which in principle is an unanswerable claim by the hospital doctors to a legal entitlement in terms of rest days.

(ii) 'Request and consent'

203. The second contention mounted by the HA in terms of the rest day claim is couched in terms of ‘request’ and ‘consent’.

204. The HA relies upon the specific wording of section 20(2) of the EO : “An employee may, at his own request and if the employer agrees, work for his employer on a rest day”.  Thus, it is somewhat beguilingly contended that, when the doctors had been rostered on call via the medium of ‘call lists’, such call lists constituted a ‘request’ by the HA that the doctors should work on their rest days, and that in acceding to such ‘requests’ the doctors thus had worked ‘voluntarily’.  Therefore, even when the plaintiffs had been rostered to work on their rest days from time to time they still had been “free to choose” whether so to do.  Thus, the argument continued, the doctors in fact had chosen to work on their rest days, and had been prepared to work voluntarily without a rest day in every 7 days following “long practice and tradition”.

205. Leading counsel for the HA maintained that the doctors had been entitled to decline to follow the call lists if they had been unwilling to work on the rostered rest day, that “they could and should have said so”, and that there was “no evidence that the HA would have compelled them to work on a rest day if they had expressed themselves unwilling to do so.”

206. The lead plaintiffs in this action would have no truck with this latter point.  On this issue I have little hesitation in accepting their evidence.  All understood the rosters to be a requirement which it was not open to them to refuse to follow; Dr Choi said that when she was a junior she had complained verbally, but with no success, and that she had felt obliged to fall into line.  She ventured the opinion that if a junior doctor had any hope of advancement within the HA that non-compliance simply was not an option.

207. For his part Mr Wong SC was in no doubt about the position.  He put the matter in more blunt terms.  In final submission he said that this case was all about ‘compulsion’ on the part of the HA :

“…we have to remember throughout this case that we are talking about compulsion.  We are not talking about voluntary work, work which a doctor discharged pursuant to the oath.  It is work pursuant to compulsion.  The core issue is the extent to which the doctors can be subjected to compulsion by the HA…inherent in this notion of compulsion is the call list…The hospital will not be able to operate properly if the call lists are merely requests…”

208. I have sympathy with this view, although it is fair to say that counsel for the plaintiffs has put the matter at the high end of the rhetorical scale, given that the doctors fully appreciate, and feel profoundly, about their responsibility to their profession.  However, I do not consider that this situation can appropriately be classified within the rubric of ‘request and consent’, a concept which in the circumstances seems to me to have the twin demerits of being both artificial and unrealistic.  In my view there was, and is, no true consensus upon which the HA properly may rely.

209. In reality the doctors have little chance or hope of successfully resisting the established system.  For my own part the roster/call list system strikes me as very far from a ‘request’ in the true sense; it is nothing more than administrative fiat, to which in reality the doctors have little choice but to comply.  The doctors work in clinical teams, and each one of the team has to play his part; the realpolitic of this arrangement is that ‘non-team players’ within the clinical ranks very quickly would find that any career with the HA would be brought to a fairly rapid end.

210. It follows from the foregoing, therefore, that I decline the invitation of the HA to consider this issue in terms of voluntariness.  In reality it is no such thing; the doctors have no real alternative but to do what they do, and they do it, it must be said, not least because of a real and wholly admirable sense of duty in terms of discharging their professional responsibilities and in caring for their patients.

211. Perhaps the best documentary instance, which to my mind sounds strongly against the validity of any the ‘request and consent’ argument, emerged at the end of this case, when my attention was drawn by Mr Wong SC in final submission to a United Christian Hospital document entitled “Regulations for Taking Leave”, paragraph 11 of which speaks for itself :

“‘NO CALL’ request can only be made on ONE PH or Sunday and the total request cannot exceed three days per month.”

212. In this connection I also refer once again to the robust memo of Dr York Chow, dated 12 February 1997 and quoted earlier in this judgment (at page 31), where, in writing as the then Chief Executive of Queen Elizabeth Hospital, and under the heading “Compensatory Leave for Medical Officers” he wrote to Head Office of the HA in the terms that it would be “absolutely unacceptable on the operation side” if staff were permitted to “forego the fixed rate honorarium and opt for all rest days”.

213. In fact, that which emerges tolerably clearly in this case is that the Head Office of the HA never successfully came to terms with the acknowledged problem of having to be in a position to comply with the statutory legal requirement, to which the public hospital doctors clearly are and were entitled, that they should be accorded their rest days.

214. With respect to the HA, which, if I may respectfully say so, is doing an extremely demanding job very well on unduly limited resources, the position that emerges on the papers before this court is that not only have these excellent doctors not been told that they have an option to forego their honorarium payment and to take rest days, to the contrary they appear to have been told they do not have such an option.

215. Counsel for the HA further sought to rely on Wong Pui Tuen Kenny v. Crown Motors Ltd, HCLA 108/2003, unreported, 30 November 2004, where Chu J found that certain car salesmen had been “requested” to work on rest days by virtue of being named on work rosters.  This case is clearly wholly distinguishable.  The culture and work practices of car salesmen and doctors bear no similarity, and in my view should not be mentioned in the same breath.  Furthermore, in Wong Pui Tuen the relevant rosters were special rosters for weekend duties, and the car salesmen had a strong incentive to agree to work because they were on commission.  In the present case each roster is for an entire month.  The same roster clearly cannot denote mandatory requirements for Monday to Saturday, but, without any special indication, purport only set out a ‘request’ for working on a Sunday.

216. I find that the HA has never made a ‘request’ in its proper sense and, moreover, the plaintiffs have never given any true ‘consent’ in the accepted sense of that term.

(iii) Estoppel

217. The third and final argument deployed on behalf of the HA in terms of the doctors’ rest day claim is that of estoppel, and more particularly estoppel by convention; in his most helpful closing address Mr Huggins SC eschewed reliance on estoppel by acquiescence.

218. The HA seeks to say that the doctors are estopped by their conduct from asserting the rest day claims that are now put forward.  This, perhaps, is not a great deal more than a legal variation upon the ‘request/consent’ line of argument.

219. For an estoppel by convention to apply, there must have been a common understanding on the basis of which the parties conducted the dealings between them, with the result that, if and in so far as any such common understanding fairly can be identified, it would be unjust or inequitable to allow the parties, who have conducted themselves on a certain basis, now to be permitted to go back on the understanding forming the basis upon which hitherto they mutually have operated.

220. In the circumstances of this case, and in particular in terms of the rest day claim, this concept is not difficult to understand; moreover, if the doctors are correct in their contentions, then subject to appropriate proof at the quantum assessment stage, the size of the cumulative claim is, or would be, significant.

221. The fundamental problem, in my view, with the HA’s argument in terms of establishing an estoppel by convention is the identification of the element of common understanding in this case.  Given that on the evidence it is clear, and as I accept, that the doctors themselves had but the faintest grasp of their rights, and also of the ambit and relevance of the Honorarium Scheme, and given that the HA of the other part clearly appreciated the legal requirement in terms of the furnishing of the rest days, but chose not to advertise this to its employees, it is a challenge to extract from this factual matrix a ‘common understanding’ that analytically fits the concept of estoppel by convention.

222. During final submission the court pressed Mr Huggins SC, leading for the HA, upon his formulation of such a common understanding, and in response to this query the HA adopted the definition of such as “the Honorarium Scheme embodies payment for overtime work, including work on rest days.”

223. With respect, I do not think that this formulation can get Mr Huggins home in his estoppel contention.  I say so for three reasons.

224. First, purely as a factual matter, I have been able to discern no genuine common understanding, in terms either of the HA’s formulation, or at all.

225. Putting the case at its highest, the HA thought that the doctors had agreed to work on rest days by accepting the monthly honorarium payments or by remaining in the Honorarium Scheme; for their part the doctors appear to have thought that they were required to work on rest days and that the Scheme in itself merely was token compensation for the obvious longevity of their hours.

226. Moreover, the conduct of the HA, at least as revealed on the evidence before the court in this case, demonstrates that in all probability it was aware that in fact there was no such common appreciation or understanding of the position.

227. The picture which comes across tolerably clearly on the evidence is that, no doubt for entirely well-intentioned administrative reasons, the HA dared not clarify the position with its doctors and inform them, for example, that it was an option to forego the honorarium and to take the rest days; in this regard, in my view Dr York Chow’s 1997 memo to the HA speaks volumes.

228. If this is correct, as I believe it is, there clearly can be no question of any common understanding : in short, the doctors viewed work on rest days as a requirement and the HA appear to have dealt with the difficulty created by the statutory EO requirement by means of the administrative device of eliding rest days into overtime.

229. The second reason ineluctably follows from the first.  Given my conclusion that for reasons of administrative practicality/operational convenience the HA refrained from informing its doctors of the option of foregoing the Honorarium Scheme payments and of taking rest days instead, it would be inequitable to find that the doctors should be held to any such common understanding, even if they had had such; equity does not assist those who keep their cards held as tightly to their chest as, in my judgment, administratively has been the case with the HA on this issue.

230. The third reason is that any such common understanding, even if it were to exist, in the circumstances probably is irrelevant.  Under section 20(2) of the EO the issue is not whether a payment (in this instance, the honorarium payment) covers the work, it is whether the employee, out of free choice, has agreed.  And on the facts of this case, or, more precisely, of the three lead cases before this court, I cannot and do not find this to be the case.

231. In my judgment, therefore, the doctors cannot be said to be estopped from mounting their claim for deprivation of their rest days over the six year term for which they presently claim.  I so hold.

232. However, if I be wrong in declining to accede to the HA arguments in terms of estoppel by convention, and if, contrary to my stated view, an estoppel does run in the terms contended for by the HA, then an issue would arise as to the date or dates at which any such common understanding ceased.

233. I should therefore indicate that on the facts of the case presently before me that, were an estoppel to run (which in my view it does not), in my opinion the 165 plaintiffs in this case no longer would be estopped after the date of the commencement of these proceedings in the Labour Tribunal, namely 15 March 2002 (for 148 claimants) and 18 March (for the remaining claimants).

234. For doctors not party to these proceedings it seems to me that any such equivalent date must be 16 December 2003, when by letter of that date Mr T C Wong, President of the Hong Kong Public Doctors Association, wrote to Dr William Ho, Chief Executive of the HA, in the terms following :

“Dear Dr Ho,

Honorarium and payment of a gratuitous nature

On behalf of the Hong Kong Public Doctors’ Association and its members, I am authorized to put on record our understanding of any Honorarium and other payment of a gratuitous nature that the Hospital Authority paid or is going to pay to our fellow members.

Unless there is individual express agreement, the payment by the Hospital Authority of the acceptance of any such payment by our fellow members does not constitute or imply any agreement to give up, vitiate or vary any right, benefit or entitlement conferred on us by our Contracts of employment and the protection offered by the Employment Ordinance.”

235. The upshot of the foregoing analysis is that I am driven to the conclusion that, in terms of the doctors’ ‘rest day claim’, this claim either succeeds in toto or it does not; there is no halfway house.  In my judgment, therefore, the plaintiffs’ claim for lost rest days for the six year period preceding the institution of these proceedings must succeed.  I so hold.

236. This conclusion begs the question as to the appropriate remedy, with which I shortly deal.

(3) The statutory holiday claim

237. I turn, finally, to the third, and last, basic component of the plaintiffs’ claim.  It is for compensation for being rostered on call or otherwise being required to work upon statutory and public holidays.

238. This aspect of the case raises no difficult issue of law or fact.  As I understand the position, the parties agree that, under the EO and as a matter of contract, the plaintiffs indeed are entitled to these holidays.  There is thus no dispute in principle under this head.

239. However, that which the parties cannot agree upon are that (i) whether ‘on call’ constitutes ‘work’; (ii) whether being rostered on call is a requirement to work; and (iii) whether the lead plaintiffs actually worked on those holidays that they allege they did.

240. I have dealt with these issues earlier in this judgment in the particular context of rest days.  The conclusions reached in relation to the first and second issues equally apply in this instance.  In relation to the third issue, as earlier observed, proof that a doctor has been on call on a particular day and the extent of his work will, failing agreement, be a matter for another day and for another tribunal, be it legal or administrative.

Appropriate relief

241. The result of the foregoing is that of the three categories of claim mounted in these proceedings, the claim for ‘overtime’, in whatever form, is dismissed, and the claim for lost rest days and statutory holidays succeeds for the full six year period as now claimed.

242. This conclusion begs the question of the appropriate relief.  Accordingly, I now turn in principle to the various issues relating both to the form of relief and to the quantum of damages.

Declarations

243. The plaintiffs seek a declaratory judgment.  They argue that this is necessary because the HA continues to deprive them of their legal entitlements.

244. A declaratory judgment is a matter for the court’s discretion.  In light of the content of this judgment I see no useful purpose in my exercising such discretion in this case, and I decline to do so.  The analysis of, and decision upon, the plaintiffs’ legal entitlements and of the HA’s obligations are as set out in this judgment in reasoned form and, I hope, embraces all relevant matters. 

Time-off in lieu

245. The second issue is that the plaintiffs have made it clear that they seek time-off in lieu with pay as against an award of damages, while the HA argues that any compensation should be purely in monetary form.  In this connection, the plaintiffs’ contentions essentially boil down to the principle that time-off in the future should correspond to such deprivation in the past.

246. This latter contention has a certain facile appeal.  However, on reflection I consider that this approach is flawed.  I say so for the following reasons.

247. First, the plaintiffs have progressed in their careers over the years and their salaries almost certainly have increased.  Time-off in lieu as compensation would not account for the different values accorded to time between then and now.

248. Second, time-off in lieu as compensation represents in substance a form of injunctive relief.  However the lead plaintiffs have not even attempted to make out a case that damages would not be an adequate remedy.

249. Third, giving the plaintiffs (and potentially 4,500 other doctors) time-off in lieu clearly would be devastating to the HA and to the efficient ongoing operation of the public hospital and medical system in Hong Kong.  In this connection it readily can be understood why the stance of the HA is that if, which is denied, the public hospital doctors are to have any remedy, then the nature of such remedy certainly should not be in the form of time off in lieu.

250. I have no hesitation in rejecting the plaintiffs’ argument for time-off in lieu with pay instead of the remedy of purely monetary relief.  Accordingly, any quantum assessment must proceed on this basis that the breaches as found against the HA sound in damages alone.

Assessment methodology

251. This latter finding, however, begs the further question as to the appropriate mode of quantum assessment.  If the liability issues in this complex case pose difficulties, as they certainly do, the problems associated with quantification are not far behind.

252. For example, I have earlier held that a doctor on resident call on a rest day or statutory holiday must be considered to be at work for the entire day, regardless of how many times he is called, and of how much time he actually spends in the wards.  From a quantum perspective this is not particularly difficult; providing always that the doctor in question has access to the appropriate records in terms of resident call on rest days, and that credit should be given for any half-day-off or other administrative relief that the HA already may have given the particular doctor.

253. However, the issue is very much more difficult in relation to the doctor on call outside the hospital.  Given that I have held that if and when he is called, and in fact goes into the hospital, that such constitutes ‘work’ requiring recompense, for what period of that day should that doctor be recompensed?  If and when he is called and decides to return to the hospital, and, for example, is required to spend an hour there, plus, say, 30 minutes of travel time before and afterwards, what is the appropriate basis for the assessment of damage?  Should this be but two hours, or should the doctor be awarded the loss of a full day?  Similarly, what of the doctor who has been required to work for two hours on a Sunday, that is, his rest day, in making a post-duty ward round?

254. At one end of the spectrum is the plaintiffs’ contention that our model doctor would have lost his whole day, and hence that he should be compensated for such full day, even though in real terms he has worked but two hours.  At the other extreme is the concept of ‘totting’, an old fashioned and rather incongruous word, but one that was adopted for ease of reference during this trial and which for current purposes does the descriptive job as well as anything else.

255. By this I mean, of course, a form of tallying or reasonable estimate of the time actually spent when working on call.  In our hypothetical scenario, the amount of time ‘lost’ would be two hours.  But this, in effect, is to require time keeping, and I am bound to observe that just as I have found the working of ‘overtime’ to be part of the culture within the tradition of public medicine, similarly I am reluctant fully to embrace the notion that, for the purpose of work on rest days, that this type of ‘totting’ exercise should be adopted.

256. During the course of this case I asked counsel for the HA to consider whether, for example, compensation could be calculated on half-day basis, e.g., if a doctor has returned to the hospital but worked for less than four hours, he would be compensated for but a half day, and in excess of four hours for the entire day.  In response Mr Huggins submitted that, despite the inherent attractiveness of such an approach – something similar to which having been adopted by the HA in the context of the ‘Compensatory Leave Scheme for Statutory Holidays’ which was put in place in 1995 (Circular 13/95) – there existed no legal basis for ordering an adoption of a like process within the concept of recompense for rest days, “however administratively convenient” this approach might be.  Counsel for the plaintiffs did not address this point at all.

257. In this context, no particular assistance is to be garnered from the HRPM.  Section B2.6.1 of the HRPM says, “When [an employee] is so required [to work on any public holiday, which concept includes a rest day], he will comply and be given an alternative holiday.”  On this basis, it may be argued that a doctor who has worked for any time at all during a rest day, regardless of duration or extent, should be compensated by a full day.  However, neither party focused on this point, and for my part, I do not see the section necessarily as suggesting such.  This section does no more than express a broad principle, namely, that if an employee is required to work on a holiday, another day is awarded as a substitute; what it does not do is to condescend to the level of what is to occur in terms of work during part of that day.

258. I apprehend that this is a matter which ideally should be left to internal HA administrative process.  Certainly in the present case I am in no position, on the evidence as led, and in terms of the manner in which the parties have agreed to conduct this case, to come to any conclusion as to the particular ‘rest day’ and ‘statutory holiday’ entitlement of the lead plaintiffs, and accordingly I do not seek to do so.

259. Should this matter ultimately be unable to be addressed by the HA in terms of administrative process (in, for example, a manner similar to the ‘Compensatory Leave Scheme’ which now has been put into place) with regard both to the existing plaintiffs in these proceedings and generally, and if and in so far as the issue of quantum of these claims requires to be resolved judicially, then it seems to me – and I say this with reluctance given the scale of the potential task – that in the circumstances there is little choice but for any fair assessment of quantum to proceed on the basis of a reasonable evidential assessment of the hours actually worked by doctors on their past rest days, and thereafter that such computation should be calculated on the premise that compensation for the total hours actually thus worked on rest days and statutory and public holidays is to be based upon the then prevailing monthly salary of the particular doctor.  This is far from an attractive prospect, but in the circumstances I am unable to divine a fairer method of achieving any such quantum assessment should such an exercise ultimately prove necessary.

Order

260. In light of this judgment I should be grateful if counsel would agree a form of Order to be engrossed.

261. As earlier noted, the substantial result is that, of the three basic claims, the claims for lost rest days and statutory and public holidays have succeeded for the full six-year period, whilst the claim for ‘overtime’, in whatever form, stands dismissed.

262. I wish to hear counsel as to costs of this action on a date to be fixed by agreement between the parties.

263. I am obliged to counsel for their assistance in what has struck me as a complex and ‘open-ended’ case, the nature of which is far removed from the usual run of cases determined by the Commercial Court.