THE ASSOCIATION OF EXPATRIATE CIVIL SERVANTS OF HONG KONG v. THE SECRETARY FOR THE CIVIL SERVICE

HCAL No. 9 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW PROCEEDINGS NO. 9 OF 1998

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J U D G M E N T

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1. There is in Hong Kong a long standing policy to localise the Civil Service. It is a wholly understandable and sensible policy. It has stood up to scrutiny in the courts. The Government of the Hong Kong Special Administrative Region also has a policy to develop a Civil Service that is at least bilingual in Chinese and English. It cannot in my view be gainsaid that such a policy is entirely appropriate for Hong Kong where the great majority of the population uses Chinese. It is plainly essential that the Government, through its Civil Service, and the population should be able easily to communicate with each other. The implementation of this latter policy, however, has given rise to complaint on the part of officers from overseas who have no background or training in Chinese. Hence, this application for judicial review brought by their Association - AECS.

2. In granting leave for this application, Keith J., who had dealt with an earlier AECS application which covered in great depth the many issues between the Government and AECS, said this

"Overseas officers who joined the Civil Service after 28th March 1985 were not allowed to join the permanent establishment. They could only serve on agreement terms. Those overseas officers on agreement terms who were already in the Civil Service on 28th March 1985 were permitted in limited circumstances to transfer to the permanent establishment, but from 30th June 1992 they were not permitted to do even that. In due course, it was decided to permit overseas officers on agreement terms to transfer to local conditions of service. But the Civil Service Regulation permitting local officers on agreement terms to apply for transfer to the permanent establishment was not to apply to overseas officers on agreement terms who transferred to local conditions of service.

This prohibition on overseas officers on agreement terms who transferred to local conditions of service from transferring to the permanent establishment was declared unlawful in R. v. The Secretary for the Civil Service ex p. the A.E.C.S (1995) 5 HKPLR 490 ("the previous A.E.C.S. case") at p.539F. As a result, the Civil Service conducted a review of the arrangements relating to applications for transfer to the permanent establishment. By Civil Service Bureau Circular No. 16/97 dated 15th November 1997 ("the Circular"), the Secretary for the Civil Service announced the measures which would be taken in the light of that review. The principal measure was that all local officers on agreement terms - whether local officers on agreement terms or overseas officers on agreement terms who had transferred to local conditions of service - could apply for transfer to the permanent establishment."

3. That Circular is at the heart of these proceedings. I shall continue to call it 'the Circular'. Unfortunately, it placed what AECS regard as an unlawful obstacle in the way of overseas officers transferring to the permanent establishment (P&P), namely a Chinese language proficiency requirement.

4. It is convenient to explain that there have always been Local Agreement Terms (LAT) for officers who when recruited were habitually resident and had their background in Hong Kong, Macau, China or Taiwan. LAT were less generous than the terms offered to officers who came from overseas. As Keith J. said, overseas officers were allowed to transfer to local conditions of service known as Locally Modelled Terms (LMT). It was LMT officers who successfully challenged the omission from these terms of the right to apply for transfer to P&P.

5. Following that successful challenge, which was upheld by the Court of Appeal, the Government immediately on 31st October 1995 announced that, pending review of the decision of Keith J., it would not accept applications for transfer to P&P whether from LAT or LMT officers (the freeze). The freeze was melted by the Circular on 15th November 1997. The relevant parts of the Circular, which runs to seven pages, are

"LIFTING OF TEMPORARY SUSPENSION

4. With immediate effect, the temporary suspension on transfer to local P&P terms announced in CSB Circular No. 21/95 is lifted. All agreement officers serving on local terms, i.e. officers serving on local agreement terms (LAT) and former overseas agreement officers who are serving on locally modelled agreement terms (LMT), may apply for transfer to local P&P terms in accordance with this circular.

PREEQUISITES

5. An LAT or LMT officer applying for transfer to local P&P terms must meet the following prerequisites before their application will be further processed -

(a) 10 years' qualifying service from date of first appointment until normal retirement age; and

(b) five years' service from the date of transfer (determined in accordance with paragraphs 21 and 22) to local P&P terms until normal retirement age.

6. On paragraph 5(b), it is understood that individual LAT/LMT officers may not be able to meet the "five-year rule" now, but could have met the requirement if there had not been a temporary suspension on transfer. These LAT/LMT officers may be allowed exceptionally to count the five years' service from a date earlier than their effective date of transfer, provided that they submit their applications for transfer to local P&P terms within one year from the date of this circular, as follows -

(a) LAT officers serving before 31st October 1995 but have not submitted their applications for transfer before the temporary suspension may be allowed to count their five years' service from 31st October 1995; and

(b) LMT officers who started their LMT agreements between 31st October 1995 and the date of this circular may be allowed to count their five years' service from the start date of their LMT agreements.

7. For the purpose of paragraph 5(b) above, officers should make an undertaking to accompany their applications that they would provide five years' service. The five years should count from the start date of the five-year period as determined in accordance with paragraphs 5(b) and 6.

CRITERIA FOR TRANSFER

8. Except as specified in paragraph 9 below, all applications for transfer will be considered against the following criteria -

(a) service need;

(b) Chinese language proficiency requirement; (my emphasis)

(c) performance and conduct; and

(d) physical fitness.

These criteria are elaborated in paragraphs 10-16 below

9. The following categories of officers will be allowed exceptionally to apply for transfer to local P&P terms under the arrangements and criteria prevailing before the temporary suspension was imposed on 31st October 1995 in view of their special circumstances -

(a) serving LAT officers who had submitted their applications for transfer to local P&P terms before 31st October 1995 and whose applications had been held in abeyance due to the temporary suspension, provided that they do not withdraw their application for transfer to local P&P terms; and

(b) serving LMT officers who started their agreement on local terms before 31st October 1995, provided that they submit their applications for transfer to local P&P terms within one year from the date of this circular.

10. ...

Chinese Language Proficiency Requirement

11. HoDs/HoGs are requested to specify a Chinese language proficiency requirement for transfer to local P&P terms in each grade, in accordance with the guidelines as may be promulgated by CSB from time to time.

12. The nature (written and/or oral Chinese) and level of proficiency should be specified having regard to the entry qualifications and the operational requirements of the grade, not only at present but also in the long run. HoDs/HoGs are requested to inform the respective Department Divisions of CSB the proposed nature and level of Chinese language proficiency requirement before the requirement is promulgated.

13. In general, a LAT/LMT officer applying for transfer to local P&P terms should meet the Chinese language requirement prescribed by his HoD/HoG. But individual officers may be exempted from the grade-wide requirement if -

(a) the officer, within the time span of his service on local P&P terms before reaching the normal retirement age, does not have to possess Chinese language proficiency for the efficient and effective performance of his duties; or

(b) the officer will be required to fill permanently a specialised professional or technical post requiring his specialist skills or expertise.

Where exemptions are considered warranted, HoDs/HoGs should submit their recommendations for exemption to CSB for prior approval on a case-by-case basis.

14-20 ...

Other Arrangements

(a) Effective Date of Transfer

21. A LAT/LMT officer whose application for transfer to local P&P terms is approved may choose his effective date of transfer as any date between the date of his application (after the lifting of the suspension on transfer) and the expiry date of his current agreement, subject to refund of any gratuity received as may be required.

22. Those LAT and LMT officers who are allowed to apply for transfer under paragraph 8 above may choose their effective date of transfer as follows subject to refund of any gratuity received as may be required -

(a) LAT officers who are allowed to apply for transfer under paragraph 9(a) above may choose any date between the date of application (before 31st October 1995) and the expiry date of their current agreements; and

(b) LMT officers who are allowed to apply for transfer under paragraph 9(b) above may choose any date between the date they started serving on local terms and the expiry date of their current agreements.

23-31 ..."

6. AECS sought to challenge as unlawful five decisions of the Respondent contained in the Circular. Leave was refused in respect of two. The remaining three are

"Decision 1

The decision of the Secretary for the Civil Service to apply paragraph 8(b) (Chinese language proficiency requirement) of Civil Service Bureau Circular No. 16/97 dated 15th November 1997 to officers serving before 1st July 1997 who, before that date and as from the commencement of the Hong Kong Bill of rights Ordinance (Cap. 383), either were or became permanent residents, or became eligible to become permanent residents under conditions set by the SCS.

Decision 4

The decision of the SCS in paragraph 6 of CSB Circular No. 16/97 dated 15th November 1997 to allow exceptions to the five-year rule" only for those officers specified in paragraph 6, as opposed to allowing an exception for all of the officers referred to in respect of Decision 1 above with effect from the commencement of the Hong Kong Bill of Rights Ordinance (Cap. 383).

Decision 5

The decision of the SCS in paragraph 7 of CSB Circular No. 16/97 dated 15the November 1997 to allow for the counting of the start-date of the five-year period for the purpose of making an undertaking to be back-dated only for those officers specified in paragraph 6, as opposed to allowing the five-year period to be back-dated for all of the officers referred to in respect of Decision 1 above with effect from the commencement of the Hong Kong Bill of Rights Ordinance (Cap. 383)."

7. As I understood it, Mr. Scott who represented AECS accepted that the "officers" comprehended by the decisions are LMT officers.

Decision 1

8. AECS challenges this decision on two grounds

1) it is in contravention of Article 100 of the Basic Law

2) it is in contravention of Article 21(c) of the Bill of Rights Ordinance

Article 100

9. This reads

"Public servants serving in all Hong Kong government departments, including the police department, before the establishment of the Hong Kong Special Administrative Region, may all remain in employment and retain their seniority with pay, allowances, benefits and conditions of service no less favourable than before."

10. AECS contends that the right to apply for transfer to P&P is a condition of service. The Chinese language proficiency requirement is a new criterion and, for LMT officers at least, less beneficial. If introduced before July 1997, there could be no complaint. But its introduction after June 1997 is in breach of the Basic Law.

11. For the Respondent, Mr. Fok accepted that the right to apply for transfer to P&P is a condition of service. It is part of the agreement terms and derives from CSR 121. The criteria against which an application for transfer is considered, however, are not part of the condition. They are not set out in the agreement itself or in CSR 121. They have always been capable of change, said Mr. Fok, and have been changed from time to time to meet changing conditions and circumstances. He pointed out that the other criteria have been strengthened yet no objection has been taken to them.

12. Mr. Fok submitted that Article 100 is intended to ensure that there will be no victimisation of public servants because of their nationality or other attributes. It is not designed, he argued, to preserve CSRs in stone. CSRs can be changed at any time whether to the benefit or detriment of an officer: the decision of the Court of Appeal in Lam Yuk Ming & Ors v. Attorney General (1980) HKLR 815.

13. Mr. Scott submitted that Article 100 is not to prevent victimisation, an idea which is simply not contained in the Article, but to ensure that public officers serving through the handover will not be affected throughout their careers; to maintain confidence; and to help preserve stability and prosperity. He continued that the criteria are inextricably bound up with the right to apply for transfer. They are employment related. He referred to a US publication "Words and Phrases" 1991 which under the heading "Condition of Employment" and "Conditions of Employment" gives brief illustrations of matters held to be such conditions, for example, retirement plans. Mr. Scott placed particular emphasis on this entry

"Quoted language, in statute requiring bargaining with respect to wages, hours and "other terms and conditions of employment", refers to and includes only those provisions in addition to wages and hours which have to do with actual performance of work or to subsequent relations; and a condition precedent to employment, such as furnishing of performance bond, is not a "condition of employment", within purview of statute. Local 164, Broth of Painters, v. N.L.R.B., 293 F.2d 133, 135, 110 U.S. App. D.C. 294."

14. It has to be said that, divorced from a full report of the underlying case, this and other illustrations lack something in authority. I accept, however, that they are capable of giving some guidance.

15. Mr. Scott also argued that it is not permissible to take and eviscerate a condition so that the right provided by that condition is negated. He said that LMT officers have been provided with an avenue to P&P. If that avenue is effectively blocked by an unavoidable consideration, the avenue becomes useless. The combination of avenue and criteria are therefore part and parcel of one condition.

16. But even if the avenue and the criteria are not linked, Mr. Scott submitted that the criteria themselves constitute an independent condition of service.

17. In my judgment, while Article 100 is designed to meet elements of the intentions contended for by both Mr. Fok and Mr. Scott, principally it is intended to ensure continuity of employment so that no public servant suffers as a consequence of the transition itself. Whatever else may have been the intention, I am confident that Article 100 is not intended to inhibit the introduction of new measures for the good governance of Hong Kong. A bilingual Civil Service is certainly such a measure. I am satisfied it does not contravene Article 100.

18. In any event, I also find that the condition is confined to the right to apply for transfer. That right remains. Government will consider each application on its merits having regard to existing and future requirements of good government. Mr. Scott asked what is the nature of the criteria if they are not a condition or part of one. The answer, I think, is that they are no more than the tests which any employer will apply to ensure that from time to time the legitimate interests of an employee and the lawful requirements of an employer are balanced. If a LMT officer considers that in the application of these tests he has been treated unlawfully, in particular, in the sense that he has been discriminated against, he can make an appropriate application. Which leads neatly to AECS' second argument.

Article 21(c) BOR

19. This Article provides for access on general terms of equality to the public service to be given to all permanent residents.

20. It is AECS' case that the language requirement discriminates against non-Chinese speaking officers be they LAT or LMT officers. It is incumbent, therefore, on the Government to justify that discrimination, but Government failed to do so because

1. Its evidence of the overall need for Chinese and of its provision for dealing with individual posts, ranks or grades is insufficient.

2. Its motivation in introducing the language requirement is, to say the least, suspect and undermines its protestations of good faith in this aspect of the implementation of its bilingual policy.

3. The freeze deprived LMT officers of the fruits of their earlier successful challenge in that they were deprived of seeking transfer on the former criteria which did not include a language requirement.

21. An attempt to challenge that third matter was refused by Keith J. I accept, however, that the freeze may properly be deployed as evidence of Government's lack of good faith in dealing with LMT officers.

22. It is convenient first to deal with Government's alleged improper motive or collateral purpose because the material that needs to be considered throws light upon the whole of the argument based on this Article. The AECS complaint gains its impetus if impetus was needed from a Civil Service Branch paper dated 21st December 1996 presented to the LegCo panel on Public Service on 23rd December 1996. The paper was designed to explain Government's decision not to appeal against the decision of the Court of Appeal, given on 22nd November 1996, which largely upheld the earlier decision of Keith J. In dealing with future transfers to P&P, this paper said

"13. Following the Court's ruling that it is unlawful to restrict overseas transferees from further transferring to P&P terms, concern has been expressed about the possible transfer an bloc of a large number of overseas agreement officers to the permanent establishment. We consider that given the right of permanent residents to have access, on general terms of equality, to the public service, we cannot continue to bar one group of permanent residents from transferring to P&P terms, just because they were initially recruited on overseas terms.

14. But this does not mean that all overseas agreement officers suddenly and automatically have the right to transfer to local P&P terms. First overseas agreement officers must become permanent residents. Second they must be prepared to accept local terms. Third, they must have outcompeted other officers under the opening-up arrangements in order to have their agreements renewed on local terms. Further to transfer to P&P terms from there, they will have to fulfil certain criteria for appointment to the permanent establishment. As stated in para 10 above, these would inevitably involve proficiency in both the Chinese and English languages. This is also in line civil service, which have proposed in the Common Terms proposals for appointment to the civil service, which have the wide support of the Staff Sides and the community. We aim to work out the detailed terms for transfer to the permanent establishment and will take into account the need for a Chinese language requirement, for application to all agreement officers on local terms."

23. Mr. Scott claimed that the very proper sentiments expressed in the second sentence of paragraph 13 are undermined by paragraph 14 which immediately sets out in stark terms pre-existing obstacles to overseas officers. It goes on to introduce yet another, i.e. the language requirement. Further, said Mr. Scott, the two-year freeze was a fifth obstacle. Absent a convincing explanation by Government, this apparently contradictory approach should be weighed against Government when considering whether it can be held successfully to have justified the language requirement.

24. Mr. Scott also relied on a memorandum dated 13th October 1998 from the Respondent to the Senior Civil Service Council giving information about applications for transfer to P&P. In an annex, the level of the Chinese language proficiency requirement for various departments was set out. Some departments require only the Civil Service Exam Unit's intermediate level of Cantonese. That, said Mr. Scott, is a pretty low level of language ability and virtually useless. He maintained that it is laughable that an officer's career and retirement should be prejudiced by such a requirement.

25. Then, in a further annex, the Respondent explained that

"(1) 24 LMT officers have been granted exemption from the grade-wide Chinese Language requirement for transfer to local P&P terms.

(3) 6LMT officers (subject to new criteria) failed in their applications to transfer to local P&P terms for not meeting the grade-wide Chinese language requirement for transfer (all 6 officers were subject to a requirement of Intermediate level of Cantonese (oral)) and their respective HoDs/HoGs did not support exemption from the requirement."

26. Mr. Scott suggested that even LMT officers are receiving inconsistency of treatment.

27. These documents cannot and must not be looked at in isolation. Mr. Fok took me through a series of documents which, he contended, put the matter in perspective. He pointed out that AECS' view of Government's motive crystallised before the LegCo panel on Public Service at a meeting on 28th April 1997 when the language requirement was discussed and AECS said

"The real purpose behind promoting bilingualism in civil service was in response to the AECS's attempt to claim its legal right and the desire of the local union to remove overseas officers from their post in order to attain promotion."

28. Mr. Fok said that the policy of bilingualism is emphatically not a camouflaged attempt to defraud overseas officers of their legitimate rights. He referred to a "Consultation document on Civil Service terms of appointment and conditions of service" contained in a circular memo dated 24th June 1994 from the Respondent. This document followed consultation on appointment and conditions of service, to which AECS contributed. The document said

"Uniform terms of appointment and conditions of service

2. The comments received show that there is overwhelming support from staff and departmental/grade management for the concept of having a uniform set of terms of appointment and conditions of service for all future appointments. The four civil service advisory bodies and Members of the LegCo Panel on Public Service are also in support of the idea. In view of this positive response, it is proposed that such an approach be re-affirmed."

29. It is easy to understand why there was such unanimity. Once one set of conditions applied to all officers, there would be no basis for on-going complaints of unequal treatment.

30. That document went on to note that a major issued be resolved was whether there any language requirement should be included as a criterion for appointment to P&P. As to this, the document said

9. On our proposals for Chinese language proficiency requirements, there is overall support for some sort of standard to be set for appointment to new P&P terms, although some have asked whether it should be a necessity or an advantage only. Many have stressed the importance of giving Heads of Departments/Heads of Grades the flexibility to set their own standards.

10. In view of the increasing importance of the use of Chinese language in the run up to 1997 and beyond, we consider that the proposals in the consultation document should be reaffirmed, viz -

(a) for appointment to new P&P terms, on which an officer can normally serve until retirement, a norm should be set at a pass in a Chinese subject in the Certificate of Education Examination but with an alternative (for those having no formal education in Chinese) of a pass in a basic Chinese language proficiency test; and

(b) for appointment to new agreement terms, which are for fixed periods only, there should be no across the board requirement for Chinese language proficiency. It will be required only on a job related basis.

11. For jobs which require a higher language requirement, the Head of Department or Grade may also stipulate such. For grades which have recruitment difficulties, the Head of Department or Grade may exercise his flexibility to lower the language requirements.

12. It should be noted however that the proposed norm and alternative will not apply to grades and ranks which require below Form V standard for entry. To apply the Form V standard to those grades and ranks would be unrealistic and unnecessary.

13. It should also be stressed that in proposing the Chinese language requirements, there is not intention of lowering the English language requirements for appointment, especially to professional and management grades. English will continue to be an important language in Government as well as in the private sector for as long as Hong Kong remains as an international centre of trade and finance."

31. Mr. Fok said that this document shows no sign of conspiracy but rather a rational objective. Further, the goal of language proficiency had been in existence for a long time. "Long", I feel, is rather stretching the elastic, but it is plain at least that the language requirement is not something dreamed up in order to get round the court's earlier decisions.

32. Then, in a circular memorandum dated 12th May 1995 dealing with "Language proficiency requirements for recruitment to the Civil Service" the Respondent said

"The purpose of this circular memorandum is to ask Heads of Departments/Heads of Grades (HoDs/HoGs) to ensure that suitable weight be given to Chinese language as well as English language in setting entry requirements for recruitment to the civil service.

Principle

2. Whilst English has played and will continue to play an important part in Hong Kong's success, the use of Chinese will increase within the Government and in communication with the public. Our aim is therefore a civil service which is biliterate (Chinese and English) and trilingual (Cantonese, Putonghua and English). There are a number of essential steps in achieving this aim, one of which is to ensure that new recruits have appropriate language abilities in both English and Chinese.

Chinese Language Proficiency Requirements

3. HoDs/HoGs are requested to include Chinese language proficiency in the entry requirements if is it not stipulated at present. The Chinese language proficiency requirement should be incorporated into the Guide to Appointment and also shown in recruitment advertisements and civil service vacancy circulars.

(a) Recruits Appointed on Permanent and Pensionable Terms

4. As a general rule, recruits appointed on permanent and pensionable terms have to be proficient in both oral Cantonese and comprehension of written Chinese. The norm should be set at a pass in Chinese Language in the Hong Kong Certificate of Education Examination (HKCEE), or at the same education level as the minimum academic qualification required for a particular grade if the grade requires a qualification loweer than the HKCEE. Where justified, HoDs/HoGs may in consultation with the relevant departmental division of the Civil Service Branch specify a different level of proficiency in respect of a particular grade, having regard to its job nature.

(b) Recruits Appointed on Agreement Terms

8. Chinese language proficiency is not normally a requirement in respect of candidates appointed on agreement terms since such appointments are for a fixed term only. However, where the use of Chinese is required for the efficient day-to-day conduct of work, HoDs/HoGs should specify a Chinese language proficiency requirement in consultation with the relevant departmental division of the Civil Service Branch. This requirement could be at the same level as the requirement for recruits appointed on permanent and pensionable terms, but need not necessarily be so.

English Language Proficiency Requirements

9. The necessary level of English language proficiency has normally been included in the entry requirements for various grades. These existing requirements should continue, unless they have to be revised as a result of the changes in operational need. The minimum requirement should be a pass in English Language (Syllabus B) in the HKCEE (or equivalent) for grades requiring at least a full school certificate.

10. As a result of a growing number of candidates who have studied abroad, there may be some applicants who obtained their qualifications from non-English speaking countries. These applicants should be invited to attend an English language proficiency test conducted by the Civil Service Examinations Unit before being offered appointment if they do not have an acceptable qualification that can meet the specified proficiency level. The HoDs/HoGs concerned, in consultation with the relevant departmental division of the Civil Service Branch, should set a level appropriate for the entry qualifications of the grade (e.g. a pass in English Language (Syllabus B) in the HKCEE for grades requiring a full school certificate) and then liaise with the Civil Service Examinations Unit to draw up arrangements for the tests to be conducted."

33. This document, said Mr. Fok, looked forward to the 21st century and the necessary increase of Chinese in public life. It also helped to explain why proficiency in Chinese language is a greater requirement for permanent than agreement officers, the latter being appointed only in the short term.

34. Next, Mr. Fok referred to the Civil Service branch paper dated 21st December 1996 for the LegCo panel on Public Service to which AECS attached such importance. He reminded me that it deals with the Court of Appeal judgment and drew attention to paragraphs 7-10

Impact of the Judgment

The Localisation Policy

7. Having looked closely into the judgment, we consider that the rulings will have limited implications for the Government's localisation policy. Indeed, the policy has remained firmly intact. First, the Court of appeal has stated at the outset of its judgment that there is no suggestion that localisation is in itself unlawful. Second, the Court has ruled as lawful our requirement that officers must be or become permanent residents of Hong Kong before they can transfer to local agreement terms. Third, it has upheld the opening up arrangements currently in place for renewal of agreements on local terms, a mechanism which requires officers to compete for further employment on the principle of "best person for the job".

Chinese Language Requirement

8. Whilst the Court of Appeal has held against the Government on the Chinese language requirement for transfer to local agreement terms, the ruling its directed at the sweeping wording in the relevant government circulars, not at the requirement for proficiency in Chinese language in itself. The principle that Chinese language proficiency should be required on the basis of job requirements has remained intact. In other words, Chinese language proficiency will remain an important element for consideration in civil service appointments.

9. In practice, the Government has taken into account the operational requirements of the post and the rank of an applicant in considering his applications for transfer to local agreement terms. For instance, if an officer has a need to communicate directly with people in Chinese in any posts that he may normally be expected to fill or to act in, his ability to perform effectively and efficiently without an interpreter would be a consideration, as the duties of the posts would demand so. Indeed, the Court held that this stated intent and implementation of the Chinese language requirement in respect of transfer to local agreement terms would be lawful. What the Court has ruled unlawful was the proposition that we could demand Chinese language proficiency for renewing agreement on local terms if any one post in the rank required such proficiency - even if the officer himself might not be required, throughout the 21/2 or 3 years duration of his agreement, to undertake the duties of that post.

10. The Court made no judgment on the question of a Chinese language requirement for transfer to P&P terms. However, the threshold should probably be higher for appointments on P&P terms - which offer long term employment with the Government. Given the ever increasing use of Chinese in day-to-day work and the growing demand of the community for public servants to be answerable to various representative bodies and members of the public and to communicate directly with them in the local language, Chinese language proficiency is becoming an importance or even indispensable requirement of many posts in the civil service. Our policy aim is clear: a biliterate/trilingual civil service, the need of which has been widely acknowledged. Indeed an important step has been taken: we have responded to the need of the community by stipulating a requirement for Chinese language proficiency, alongside with English, for new recruits on local P&P terms. It is only reasonable that Chinese language proficiency should continue to be given significance in our appointment policies. How the need for Chinese language proficiency should be recognised in the arrangements for appointment on P&P terms will need to be worked out and discussed with the Staff Sides."

35. Two months later on 21st February 1997, Civil Service Branch prepared a paper for the Senior Civil Service Council on 24th February 1997 entitled "Giving effect to the Court of Appeal judgment on the AECS court case". Among other things, the paper said

"CHINESE LANGUAGE REQUIREMENT FOR TRANSFER TO LOCAL AGREEMENT TERMS

8. In respect of the Chinese language requirement for transfer to local agreement terms, the Court of Appeal has only ruled as unlawful the sweeping wording of the requirement in the relevant government circulars, but ahs held that the Government's stated intent and implementation of the requirement would be lawful. That being the case, no change to the policy itself is required. To address the Court's concern on the sweeping wording, we propose to revise the relevant circulars to clarify and elaborate on the existing policy. In so doing, we are neither relaxing the requirement nor making it more stringent. Under the policy, HoD/HoG should continue to decide whether or not to apply a Chinese language requirement when considering applications for renewal of agreements on local terms by local officers and overseas agreement officers applying for transfer to local agreement terms, taking into account -

(a) whether the job(s) that an officer would be expected to perform during the course of his next agreement require Chinese language proficiency; and

(b) if so, whether accommodating an officer without such proficiency would impair the efficient and effective operation of the department, having regard to the extent and nature of the language requirement, translation/interpretation services available during the period and prospect of the officer attaining the required language proficiency in good time."

36. Later, the paper turned to the crucial matter.

Chinese Language Requirement

17. Given the Government's policy to develop a biliterate and trilingual civil service, the increasing use of Chinese in government business and communication with the public as well as growing public expectation for civil servants to be bilingual, it is reasonable to require officers transferring to the permanent establishment (which offers a long-term employment with Government) to be proficient in Chinese. We propose that a Chinese language requirement should be specified for transfer to local P&P terms in each grade, except where Chinese language proficiency is indeed not required at all for the efficient and effective operation of the grade, even after taking into account operational requirements in the long run. This is consistent with the requirement, introduced since 1st August 1995, for all new recruits on local P&P terms to be proficient in the Chinese language, in addition to English.

18. We propose that the level of language proficiency should be determined with reference to language proficiency examinations set by the Civil Service Examination Unit (CSEU) for the general purpose of testing language proficiency at different levels in the working environment. A list of the levels of language proficiency examinations organised by the CSEU at Annex B. HoD/HoG should be given the discretion to decide the level of examinations appropriate to the grades having regard to -

(a) the entry qualifications of the grade, in particular the language proficiency requirement for new appointments on local P&P terms, which represent the level of language proficiency ideally required for the range of jobs in the grade; and

(b) the operational requirements of the grade, not only at present, but also in the long run, having regard to the increasing use of Chinese language in the conduct of government business.

19. We further propose that, notwithstanding the general Chinese language requirement prescribed for a grade, individual officers could be exempted from the grade-wide requirement if -

(a) the officer, within the time span of his service before reaching the normal retirement age, does not have to possess Chinese language proficiency for the efficient and effective performance of duties; or

(b) the officer will be required to fill permanently a specialised professional or technical post (which does not require Chinese) requiring his specialist skills or expertise."

37. That paper, it is to be noted, was about two months before the LegCo meeting on 28th April 1997 at which AECS voiced its complaint about Government's ulterior motive.

38. In October 1998, the Chief Executive gave his 1998 policy address. About the use of official languages, he said

"Action in Progress: On Schedule

1995 4. To start a three-year programme to provide the computer hardware, software and training necessary to facilitate the use of Chinese in communication with the public and in official business.

1050 sets of equipment and 8600 training places have been provided in the past 12 months. The three-year programme will conclude on 31st March 1999."

39. According to Mr. Fok, Government's genuine commitment to Chinese was there again reinforced.

40. Mr. Fok then returned to the Circular. He pointed out that paragraph 11 simply sets up a requirement for Chinese language proficiency. It does not set any standards for guidelines. That was done by a circular No. 46/97 issued the same day 15th November 1997. This has to be set out in full

"This memorandum promulgates guidelines for Heads of Department/Grade (HoDs/HoGs) on specifying and applying a Chinese language proficiency requirement for transfer from agreement to local permanent and pensionable (P&P) terms.

Background

2. Civil Service Bureau (CSB) Circular No. 16/97 issued on 15th November 1997 sets out the arrangements and criteria for agreement officers serving on local terms to apply for transfer to local P&P terms. One of the criteria for transfer is a Chinese language proficiency requirement to be set by individual HoDs/HoGs. The guidelines for specifying and applying such a requirement are set out in the following paragraphs.

Policy

3. It is the Government's policy to develop and maintain a Civil Service which is able to operate efficiently in both Chinese and English. This takes into account the fact that both Chinese and English are official languages of the Hong Kong Special Administrative Region, the increasing use of Chinese (in addition to English) in government business and communication with the public as well as growing public expectation for civil servants to be bilingual.

4. Given the above policy objective and the fact that appointment on P&P terms offers a long-term employment with the Government, officers appointed on P&P terms should have appropriate language abilities in both Chinese and English. In this connection, HoDs/HoGs have already been requested since August 1995 to include Chinese language proficiency in the entry requirements of individual grades such that, as a general rule, new recruits appointed on P&P terms should be proficient in both Chinese and English. Similarly, serving agreement officers who transfer to P&P terms should also possess the appropriate proficiency in both Chinese and English.

Chinese Language Proficiency Requirement

5. HoDs/HoGs are requested to specify a Chinese language proficiency requirement for transfer to P&P terms in each grade. HoDs/HoGs should determine the nature (written and/or oral Chinese) and level of Chinese language proficiency required having regard to -

(a) the language proficiency requirement for new appointments on P&P terms, which represent the level of language proficiency ideally required for the range of jobs in the grade; and

(b) the overall operational requirements and distribution of work within the grade, not only at present, but also in the long run, having regard to the increasing use of Chinese language in the conduct of government business.

6. The nature of the requirement and the level of proficiency may be set with reference to the language proficiency examinations conducted by the Civil Service Examinations Unit (CSEU) for the general purpose of testing language proficiency at different levels in the working environment. A list of the types and levels of language proficiency examinations organised by the CSEU is at Annex.

7. HoDs/HoGs are requested to notify the respective Departmental Division of CSB the Chinese language proficiency requirement specified for transfer to P&P terms for each grade (where appropriate, for different streams within a grade).

Exemption from the Requirement for Individual Officers

8. Notwithstanding the general Chinese language proficiency requirement prescribed for transfer to P&P terms in a grade, individual officers could be exempted from the grade-wide requirement if the HoD/HoG concerned considers that -

(a) the officer, within the time span of his service on P&P terms before reaching the normal retirement age, does not have to possess Chinese language proficiency for the efficient and effective performance of his duties; or

(b) the officer will required to fill permanently a specialised professional or technical post requiring his specialist skills or expertise.

9. HoDs/HoGs are required to seek prior approval of this Bureau on a case-by-case basis for any such exemption when considering applications for transfer to P&P terms from individual officers.

10. Where an officer is granted an exemption to the Chinese language requirement on the understanding that he would be required to fill a specialist post permanently or that his posting range would be limited as a result of his lack of Chinese language proficiency, he should be made aware of any such understanding when approval is given for his transfer to P&P terms.

Application of the Requirement

11. Agreement officers applying for transfer to local P&P terms may already possess academic qualifications or other qualifications in the Chinese language HoDs/HoGs should assess if these qualifications are comparable to the level of Chinese language proficiency specified for transfer to P&P terms. For agreement officers who do not possess the appropriate qualifications in the Chinese language, HoDs/HoGs should arrange for these officers to be tested for their Chinese language proficiency at the level required.

12. General-purpose language proficiency examinations (at Annex) are arranged by the CSEU on a regular basis and HoDs/HoGs may make arrangements for officers to sit for the appropriate examinations in accordance with procedures promulgated by the CSEU from time to time. Where necessary, HoDs/HoGs may set, in consultation with CSEU, tests modelled on language proficiency examinations conducted by CSEU having regard to the Chinese language proficiency specified in the grade for transfer to P&P terms.

Chinese Language Training

13. In line with the Government's policy to develop and maintain a Civil Service which is able to operate efficiently in both Chinese and English, the Civil Service Training and Development Institute (CSTDI) will continue to work closely with departments to help them organise Chinese language training programmes to meet the needs of the department.

14. Since the need for Chinese language proficiency varies from one grade to anther, HoDs/HoGs are required to assess the training needs of officers and liaise with CSTDI in good time on how appropriate training could be provided to meet those needs. HoDs/HoGs are also requested to make every effort to release officers for such training as far as exigency of service permits."

41. To complete the picture, it is necessary to see what the Court of Appeal said in relation to a Chinese language requirement for overseas officers seeking LMT. While that requirement was couched in different terms, the principles enunciated hold good. The Court of Appeal decision was given on 22nd November 1996 in App 1995/206 (Civil). At page 23, Bokhary J.A. (as he then was) said

"Language as a distinction

Language is one of distinctions (Sic) - race, colour, sex, religion, political or other opinion, national or social origin, birth or other status being the other ones - specifically but not exhaustively named as distinctions:

(i) free from which the rights recognized in the Bill of Rights shall be enjoyed (see article 1(1));

(ii) by reference to which article 21 rights may not be denied (see article 21 itself); and

(iii) in regard to which discrimination is prohibited, it being a fundamental law that everyone is entitled to the equal protection of the law (see article 22).

Having regard to the context of the present case, the focus is on article 21, particularly item (c) thereof. But the principles with which I am about to deal are just as relevant to the other anti-discrimination provisions in the Bill of Rights.

I begin with what I said in R v. Man Wai Keung (No. 2) [1992] HKCLR 207 at p. 217 and repeated (with the concurrence of Litton VP) in Lee Miu Ling v. Attorney General [1996] 1 HKC 124 at p. 130 when dealing with article 22:

"Clearly, there is no requirement of literal equality in the sense of unrelentingly identical treatment always. For such rigidity would subvert rather than promote true even-handedness. So that, in certain circumstances, a departure from literal equality would be a legitimate course and, indeed, the only legitimate course. But the starting point is identical treatment. And any departure therefrom must be justified. To justify such a departure it must be shown: one, that sensible and fair-minded people would recognize a genuine need for some difference of treatment; two, that the difference embodies in the particular departure selected to meet that need is itself rational; and, three, that such departure is proportionate to such need."

Fair or discriminatory?

The cornerstone of that test is fairness. Is the difference in treatment fair or is it discriminatory?"

42. Bokhary J.A. then referred to Nowak & Rotunda: Constitutional Law and continued

"It boils down to this in the present case. A category of persons, namely officers being considered for transfer from overseas terms to local terms, are being treated differently depending on whether or not they can communicate in Chinese. So a language distinction is being made. Is it a fair language distinction or a discriminatory one?

It may be discriminatory even though the decision-maker acted in perfect good faith, as I do not doubt that the SCS had.

Justification test: fairness, genuine need, rationality and proportionality

Whenever there is a distinction, the question under article 21 of the Bill of Rights is whether that distinction is fair and therefore lawful or discriminatory and therefore unlawful. In short, can the distinction be justified?

To justify the distinction it must be shown: one, that sensible and fair-minded people would recognize a genuine need for some such distinction; two, that the particular distinction made to meet that need is itself rational; and, three, that such distinction is proportionate to such need.

That is the test as to justification, being one of fairness, genuine need, rationality and proportionality; designed to answer the question whether a distinction is fair and therefore lawful or discriminatory and therefore unlawful.

Its application in any given case calls for a careful assessment of the circumstances of that case. If it is contended that a distinction is needed because problems would otherwise arise, then that contention must be scrutinized. And it will not be accepted unless it is clear that there really would be serious problems which would be very difficult even if not impossible to overcome. Human rights are involved here. And courts and tribunals must guard such rights by guarding themselves against being persuaded to make too much of problems put forward with a view to justifying distinctions in the way people are treated."

43. The Judge then cited two Scottish sex discrimination cases as examples of the proper approach. The tribunals held that a woman who had unsuccessfully applied for a job in a men's clothing store and a man likewise in a woman clothing store could each be helped out by a staff member of the other sex when the two prospective employees might be required to have intimate contact with a customer. They had, therefore, been unfairly discriminated against.

44. Although all these extracts make tedious reading, they clearly demonstrate in my judgment two things. First, while I can understand why AECS and its members had suspicions about Government's motive, a fair reading of the documents shows beyond doubt that Government was doing its best to balance the implementation of genuine and necessary policies against the legitimate hopes and aspirations of LMT officers. I should add that what is contained in the various documents was confirmed in 2 affirmations by Sandra Lee, Deputy Secretary for the Civil Service.

45. Second, Government fully acknowledged what needed to be done in introducing a requirement which has the effect of distinguishing certain officers and addressed those needs.

46. In the end, Mr. Scott was essentially relying on Government's failure to provide language training to enable non-Chinese speakers to adapt to the new criterion, he referred to the decision in Creswell v. Board of Inland Revenue [1984] ICR 508 for the proposition that an employer must provide appropriate training or re-training. For my part, I am not sure that that decision imposes an absolute requirement. It is unnecessary to consider the point in detail however because even this ground was cut from under Mr. Scott. In the same policy address, the Chief Executive also disclosed as part of the Civil Service Training and Development the 1997 pledge

"To intensify Chinese training for non-Chinese speaking officers in 1998 to enable them to use Chinese as a working language."

47. As to which the present position is

"457 places on courses on Cantonese and Chinese characters were provided in 1998. The Zhongshan University has been commissioned to organise a residential course for non-Chinese speaking officers in September 1998."

48. That of course is consistent with and in furtherance of paras 13 and 14 of Circular 46/97.

49. Mr. Scott contended that the Government should provide training both before and after transfer to P&P. I do not think such a distinction is required. The important matter is that training is available and that a LMT officer can take advantage of it if he wishes so that his undoubted handicap is reduced. If that officer is unreasonably or unfairly denied access to such training, he may have a cause for complaint that can be resolved in court if necessary.

50. Mr. Fok argued that the right of LMT officers of access to P&P is in fact not being restricted because the language requirement is so qualified by the various exemptions that it only may be imposed. Further, all officers are subject to the same requirement. I do not think that argument is tenable. Plainly, the language requirement has the effect of distinguishing officers who do not have a background and education in Chinese. I accept, however, that the distinction is fair and justified in accordance with the test laid down by Bokhary J.A.

51. I hold that Decision 1 was not unlawful.

Decisions 4 & 5

52. If an officer is to transfer to P&P, he must be able to give a minimum of five years' service before the retirement age, now 60. Government recognized that the freeze has the effect of robbing officers of up to two years available service. In fairness, therefore, it allowed back dating.

53. I confess that I had and still have difficulty in understanding exactly what is complained of here. Mr. Scott accepted, I believe, that the officers affected are LMT officers who are entitled to apply for transfer. Overseas officers who are eligible but have not applied for or been granted LMT have not been affected by the freeze.

54. As far as LMT officers are concerned, they are dealt with by paragraph 6(b) and 9(b) of the Circular. Paragraph 6(b) permits officers whose agreements began during the freeze to count five years from the start of their LMT agreements, i.e. the earliest date when an application for transfer to P&P could be made. Paragraph 9(b) allows officers already on LMT when the freeze began to apply under the arrangements and criteria then prevailing (who thus face no Chinese language requirement). In her first affirmation, Sandra Lee at paragraph 34 explained that there is no need to apply a paragraph 6(b) exception

"... because these officers are already exceptionally allowed to apply for transfer to local P&P terms under the old criteria as if their applications were received before 31st October 1995. In other words, their effective date of transfer could be a date preceding 31st October 1995, and the temporary suspension should not affect their eligibility to meet the five-year rule."

55. I am at a loss, therefore, to see who can legitimately claim these decisions to be unlawful. It may be that AECS has misunderstood the position. It may be (and it is more likely) that I have misunderstood. If it wishes, AECS can apply within 14 days of the date of this judgment for the hearing to be restored for further argument on these two decisions. Otherwise, I shall find these decisions also to be lawful.