In re Ferdinand Tromp and Others

1994 MP No. 3037

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

_______________

J U D G M E N T

_______________

INTRODUCTION

1. This is an application for leave to apply for judicial review of various decisions made over a number of years by the Governor-in-Council, the Secretary for the Civil Service, the Attorney-General, the Director of Accounting Services and officers acting under the delegated authority of the Secretary for the Civil Service. The decisions challenged relate to the Government's attempts to localise the Civil Service, and to introduce uniform conditions of service for all officers, while at the same time remaining within the law and according permanent residents of Hong Kong their constitutional rights, including the right given to them by Art. 21(c) of the Bill of Rights "to have access, on general terms of equality, to the public service in Hong Kong".

2. Before I can give leave to the Applicants to apply for judicial review, I must be satisfied :

(i) that the Applicants have a sufficient interest in the subject-matter of the decisions under challenge, and

(ii) that it is arguable that the rights of the Applicants which are alleged to have been infringed are public rights, so that the decisions which are being challenged are amenable to review by the process of judicial review.

However, the nature and number of the decisions challenged, the numerous grounds of relief sought, and the different grounds on which that relief is sought, make this case - apart from its obvious constitutional and political importance - an extremely complex one. It was, therefore, necessary for Mr. Philip Dykes for the Applicants to identify, with precision, the particular decisions which are challenged, the grounds upon which each of those decisions is challenged, and the relief which is sought in relation to each decision which may be found to be unlawful.

3. I confess that I was originally of the view that once Mr. Dykes had identified a particular decision which was to be challenged, and once he had satisfied me that it was arguable that the decision was unlawful for one reason or another, I should simply give leave for that decision to be challenged. But on reflection I think I should go further than that. If a decision is challenged, both on grounds which I think are arguable, and on grounds which I think are unarguable, I should say so, and I should limit the leave to those grounds which I conclude are arguable. Again, if there is no arguable basis on which the Applicants can claim a particular form of relief in the event of a successful challenge to a particular decision, I should say that as well, and I should limit the leave to such relief as is arguable. To do otherwise would, in my view, be to deny to this application the purpose which it is intended to have - namely, to act as a filter to prevent applicants for judicial review from relying on arguments which have no arguable chance of success. I regard that as particularly important in a case as complicated as this. In my view, the Respondents should not be burdened with having to meet arguments which have no chance of success, and the time of the court should not be wasted on arguments which cannot succeed.

4. However, I should add that since the relief to be granted is in the discretion of the court, and since the court's view of the relief sought may well be different at the end of a full hearing, it would be wrong to say that the court cannot grant such relief as it then thinks is appropriate, merely because, on the material before the court at the leave stage, the court declined to give leave to permit a particular form of relief to be claimed.

5. It is also important, I think, to emphasise for the non-lawyers who are following and reporting on this case that the grant of leave to apply for judicial review of a particular decision, and to apply for a particular form of relief, does not mean that I am satisfied that the decision was unlawful, or that the Applicants are entitled to the relief claimed. The grant of leave simply means that I think that the arguments that a particular decision was unlawful and that the Applicants should be granted the particular relief sought are sufficiently strong to warrant the holding of a full hearing to determine whether those arguments are indeed correct.

6. I can say here and now, though, that I shall be giving leave to the Applicants to apply for judicial review of some of the decisions challenged, and to claim some of the relief sought. I do not propose to give my reasons for doing so. Since there is to be a full hearing in relation to those decisions and the relief claimed in respect of them, the less I say now the better. However, I shall be giving brief reasons in those instances where I refuse to give leave or give limited leave only.

THE DECISIONS FOR WHICH LEAVE IS NOT DISPUTED

7. The decisions which are challenged are set out in para. 1 of the Amended Notice in Form 86A. The Respondents do not contend that leave should not be given to the Applicants to apply for judicial review of the decisions in paras. 1(iii), 1(iv), 1(v), 1(2)(ii), 1(3)(vi), 1(15), 1(16)(i), 1(16)(ii) and 1(16)(iii) of the Amended Notice. I give the Applicants leave to apply for judicial review of the decisions in those paragraphs, though I do not give leave for the decision in para. 1(v) to be challenged on the ground that the demotion constituted an infringement of Art. 3 of the Bill of Rights.

THE "DECISIONS" WHICH ARE EITHER NOT DECISIONS OR ARE REPETITIONS OF DECISIONS PREVIOUSLY MADE

8. A number of the other decisions challenged are, on analysis, no more than the repetition or confirmation of decisions which are set out elsewhere in the Amended Notice. Thus, the decisions in paras. 1(1) and 1(4)(i) repeat the decision in para. 1(5), and the decision in para. 1(7)(iii) repeats the decision in para. 1(12)(ii). I do not give the Applicants leave to challenge the decisions in paras. 1(1), 1(4)(i) and 1(7)(iii) for that reason.

9. Furthermore, a number of the decisions challenged are, on analysis, no more than proposals to establish a particular scheme. Thus, the decisions in paras. 1(6) and 1(9) are no more than proposals to establish a scheme for the opening up of certain posts to competition when the agreements of the officers in those posts expire. The decision to establish that scheme and the decisions for its implementation are set out in para. 1(16). Accordingly, for that reason I do not give the Applicants leave to challenge the decisions in paras. 1(6) and 1(9).

10. Moreover, the decision in para. 1(14) is no more than the announcement of a proposal to enlarge a particular aspect of the Government's localisation policy, and the decision implementing that proposal is set out in para. 1(7). Accordingly, I do not give the Applicants leave to challenge the decision in para. 1(14).

11. However, it is, in my view, sufficiently arguable that the decisions in paras. 1(11)(i) and 1(11)(ii) are indeed decisions, rather than proposals, and are therefore amenable to review, subject to the Respondents' arguments that the Applicants do not have sufficient standing to challenge them.

THE DECISIONS FOR WHICH LEAVE IS DISPUTED

12. I turn to those decisions for which the Respondents allege that no arguable grounds for challenge exist. They are the decisions in paras. 1(ii), 1(vi), 1(3)(i), 1(3)(ii), 1(3)(iii), 1(3)(iv), 1(3)(v), 1(7)(i), 1(12)(i) and 1(12)(ii). In my view, arguable grounds for challenging the decisions in paras. 1(ii) and 1(vi) exist, and I give the Applicants leave to challenge them. As for the decision in para. 1(3)(i), I think that arguable grounds exist for challenging that decision, provided that officers on agreement terms who are on local conditions of service (excluding those officers who have transferred to local conditions of service) are permitted under the Civil Service Regulations to carry forward untaken leave, whether vacation or casual, to their next agreement. I therefore propose, subject to the argument that the Applicants do not have sufficient standing to challenge that decision, to give the Applicants leave to challenge that decision on condition that an affidavit or affirmation confirming that is filed within 21 days of today. If such evidence is not filed, the leave to challenge that decision will lapse.

13. As for the decision in para. 1(3)(ii), Mr. Dykes has persuaded me that arguable grounds for challenging that decision exist, and I give the Applicants leave to challenge it. As for the decision in para. 1(3)(v), I do not believe that arguable grounds for challenging that decision exist. Officers who transfer to local conditions of service cannot complain about the loss of benefits to which officers on local conditions of service were never entitled. I therefore decline to give the Applicants leave to challenge that decision. However, there are, in my view, arguable grounds for challenging the decisions in paras. 1(3)(iii) and 1(3)(iv), and I give the Applicants leave to challenge them, though not on the ground that they constitute an infringement of Art. 14 of the Bill of Rights. Subject to an argument that the Applicants do not have sufficient standing to challenge the decisions in paras. 1(12)(i) and 1(12)(ii), I also think that arguable grounds for challenging those decisions exist.

14. As for the decision in para. 1(7)(i), the Double Ladder and Development Post Schemes have been applied in the Attorney-General's Chambers for many years. The decision challenged, being merely a decision to continue the implementation of those Schemes, is, in my view, an attempt to challenge the Schemes now when they should have been challenged years ago when the Bill of Rights was enacted. The Double Ladder Scheme came into effect in December 1988, and I assume that the Development Post Scheme came into effect shortly after its approval in June 1991. In R. v. Stratford-Upon-Avon District Council ex p. Jackson [1985] 1 WLR 1319, the Court of Appeal in the U.K. held that the question to be determined under Ord. 53 r. 4(1) of the Rules of the Supreme Court included whether on the facts there was a reasonable excuse for the delay. Without deciding whether the excuse for the delay in challenging the decision in para. 1(7)(i) is reasonable, I have considered section 21K(6) of the Supreme Court Ordinance (Cap. 4). I have no doubt that the grant of any relief in 1995 relating to the Double Ladder and Development Post Schemes would be enormously detrimental to good administration, and I therefore decline to give the Applicants leave to challenge the decision in para. 1(7)(i).

15. I turn to the decisions in paras. 2 and 3. In my view, it is arguable that the rights of the Applicants which are alleged to have been infringed can be regarded as rights of a sufficiently public nature, so that the decisions which are being challenged are amenable to review by the process of judicial review. I therefore give leave to each of the four individual Applicants to challenge the individual decisions set out in para. 2 which relate to them. However, I decline to give Mr. Toes leave to apply for judicial review of the decision set out in para. 3, because that decision was rescinded, to all intents and purposes, when it was decided to repay to Mr. Toes (admittedly without any admission of a legal liability to do so) the sum which, pursuant to the decision challenged, had been deducted from his salary. I also take account of the undertaking given by the Director of Accounting Services through counsel that he will not, at the end of this case, seek to deduct the baggage allowance from Mr. Toes' salary. In any event, a baggage allowance is only payable to an officer on overseas conditions of service in the event of the officer finally leaving the Service. Mr. Toes had not left the Civil Service, and unless and until he had, he would not have been entitled to such an allowance. As he is now employed on local terms, Mr. Toes would not appear to be entitled to a baggage allowance at all.

THE DECISION IN PARA. 1(2)(iii)

16. There is one decision whose effect I do not understand. That is the decision in para. 1(2)(iii). I do not understand why it was necessary for officers who have left the Civil Service because they were employed on agreement terms and their agreements had expired to be prevented from applying for a transfer. Mr. Adrian Huggins Q.C. for the Respondents had no instructions on the matter, and he and Mr. Dykes could only speculate on what the decision meant. I cannot determine whether there are arguable grounds for saying that the decision is unlawful if I do not understand what the decision means. I therefore adjourn the application for leave to apply for judicial review of that decision until 24th January for an explanation of the decision from an officer acting under the delegated authority of the Secretary for the Civil Service. That explanation should be given in an affirmation or affidavit to be filed in court and served on the Applicants' solicitors by 4.30 p.m. on 20th January.

THE ALLEGATION OF BAD FAITH

17. Before I turn to the question of standing, there is one other matter I should mention. It is not disputed that the Government has been attempting to modify its localisation policies so as to remain within the law so far as it can, while at the same time seeking to promote local talent which the Government believes the historical imperative of the impending change in Hong Kong's sovereignty makes necessary. However, in paras. 162-169 of the Grounds for the Relief Sought, it is alleged that the breaches of law of which complaint is made were not inadvertent. In other words, it is alleged that the Respondents knew that the decisions challenged were unlawful, but that they took the decisions nevertheless, and there is said to be authority for the proposition that decisions taken with a deliberate disregard for the law can be struck down on the basis that the power to make the decisions challenged was being exercised for an improper motive. Mr. Huggins has urged me to strike out those paragraphs on the basis that they amount to an allegation of bad faith, and that there is no evidential basis for them. I do not think that I would have characterised the allegations as amounting to allegations of bad faith, bearing in mind the Government's legitimate and understandable wish to modify the localisation policy while at the same time seeking to promote local talent. But I cannot say that there is no evidential basis for the allegations which the Applicants make. I therefore cannot strike out the offending paragraphs, though I repeat that the fact that there is a scintilla of evidence to support the allegations does not begin to mean that the allegations will be made out at the full hearing.

SUFFICIENT INTEREST

18. The Respondents allege that the Applicants do not have a sufficient interest in the subject-matter of a number of the decisions challenged. That allegation relates to the decisions in paras. 1(i), 1(2)(i), 1(3)(i), 1(4)(ii), 1(5)(i), 1(5)(ii), 1(7)(i), 1(7)(ii), 1(11)(i), 1(11)(ii), 1(12)(i), 1(12)(ii) and 1(16)(iv). I do not think that any of the four individual Applicants have the standing to challenge the following decisions :

(i) the decisions in paras. 1(i), 1(5)(i) and 1(11)(i), because they admit that they are permanent residents of Hong Kong within the meaning of Sch. 1 to the Immigration Ordinance (Cap. 115), even if they became permanent residents of Hong Kong because that was one of the conditions for a successful application for transfer to local conditions of service;

(ii) the decision in para. 1(4)(ii), because the four individual Applicants do not allege that any of them were affected by the requirement to apply for a transfer to local conditions of service by 30th October 1993;

(iii) the decision in para. 1(7)(ii), because none of the four individual Applicants are employed in the Attorney-General's Chambers;

(iv) the decision in para. 1(12)(i), because none of the four individual Applicants are employed in the Administrative Service;

(v) the decision in para. 1(12)(ii), because none of the four individual Applicants hold posts equivalent to those posts which will be described as Principal Official posts with effect from 1st July 1997.

Accordingly, I do not give the four individual Applicants leave to challenge any of those decisions.

19. However, in my view, the four individual Applicants have the standing to challenge the following decisions :

(i) The decisions in paras. 1(2)(i), 1(11)(ii) and 1(16)(iv). Although none of the Applicants expressly allege that they are unable to communicate directly with people in China, or that they have not passed a Chinese subject in the Certificate of Education Examination, or that they do not have a pass in a basic language requirement, or that they need to undergo Chinese language training, I fear that that simply may have been overlooked, and I am prepared to give the four individual Applicants the opportunity to repair that omission (if omission it was) by filing further evidence. I therefore give the four individual Applicants leave to challenge those decisions on condition that affidavits or affirmations are filed by each of them within 21 days (28 days in the case of Mr. Bach) expressly alleging those matters. If such evidence is not filed, this leave will lapse.

(ii) The decision in para. 1(5)(ii). That decision was a decision to continue to apply the localisation policy contained in CSR 281(1)(d) to those officers on agreement terms who are on overseas conditions of service and who do not transfer to local conditions of service. That decision affected Mr. Bach because he did not transfer to local conditions of service, but in my view it also affected the other three individual Applicants who have transferred to local conditions of service, because the decision to continue to apply the localisation policy to those officers who did not transfer to local conditions of service must have been a factor in their decision to transfer to local conditions of service. Accordingly, I give the four individual Applicants leave to challenge that decision.

20. As for the decision in para. 1(3)(i), I think that the three individual Applicants who have transferred to local conditions of service were affected by it, and I confirm the leave I have already given to them to challenge the decision on the condition to which I have already referred, but I do not see how Mr. Bach was affected by that decision, because it is quite impossible for me to assume that that decision was a factor in his decision not to transfer to local conditions of service. Accordingly, I do not give Mr. Bach leave to challenge that decision.

21. As for the standing of the AECS, the AECS clearly has the standing to challenge any of the decisions which any of the individual Applicants have the standing to challenge, because all four individual Applicants are members of the AECS. Accordingly, I give the AECS leave to challenge the decision in para. 1(5)(ii).

22. As for those decisions which I have decided none of the individual Applicants have the standing to challenge, or which the four individual Applicants should have leave to challenge on terms only, Mr. Dykes has persuaded me that it is not necessary for the AECS to have to furnish evidence that at least one of its members is affected by those decisions and wishes the AECS to challenge the relevant decision on his behalf. It is sufficient that the AECS represents a class of officers, at least one of whom is likely to be affected by the decisions under challenge. Except for the decision in para. 1(12)(ii), I accordingly give unconditional leave to the AECS to challenge the decisions set out in paras. 1(i), 1(2)(i), 1(3)(i), 1(4)(ii), 1(5)(i), 1(7)(ii), 1(11)(i), 1(11)(ii), 1(12)(i), 1(12)(ii) and 1(16)(iv).

23. As for the decision in para. 1(12)(ii), the AECS will have leave to challenge that decision on condition that evidence is filed within 21 days to the effect that there is a member of the AECS who holds the post equivalent to those posts which will be described as Principal Official posts from 1st July 1997 and who wishes the AECS to challenge the decision on his behalf.

THE RELIEF SOUGHT

24. I make a general point first. Even if the decisions challenged are unlawful to the extent that they apply to permanent residents within the meaning of Art. 21(c) of the Bill of Rights, the decisions challenged may well be lawful in their application to other officers who cannot claim any form of constitutional protection. Mr. Dykes accepts that. I am not prepared to do the work which should have been done by counsel, i.e. to redraft the relief sought to reflect that concession. It is simply sufficient for me to record that concession, and to indicate that no relief can be granted which does not reflect that concession.

25. I do not give the Applicants leave to apply for the order sought in para. 2 of the Relief Sought. The words "the localisation policy" are far too vague and uncertain. If the decisions challenged constitute that part of the localisation policy which the Applicants allege are unlawful, the order sought in para. 1 of the Relief Sought is entirely sufficient for the Applicants' purposes.

26. I now propose to go through the remainder of the Relief Sought indicating those parts of it for which I do not give leave, though the fact that I do not give leave (for the reasons that I mentioned earlier in this judgment) does not necessarily mean that I will not regard it as appropriate to give that relief at the end of the substantive hearing.

27. In para. 3 of the Relief Sought, I do not give leave for the Relief Sought to include the words in line 1 "the localisation policy and", nor do I give leave for the Relief Sought to include references to Art. 3 of the Bill of Rights. In relation to para. 3(1) of the Relief Sought, I do not give leave for the Relief Sought to include the words "degrading treatment of certain public officers - based on prohibited distinctions of language and national and social origin - including". Nor do I give leave for the relief sought in para. 6 of the Relief Sought to include any reference to Art. XIV of the Letters Patent or to refer to the words "or demotion" or to refer to the words after "disciplinary action having been taken against them." I do not give leave for the Applicants to apply for the relief sought in para. 8, nor for the relief sought in paras. 11 and 12. So far as the relief sought in para. 10 is concerned, I do not give leave for that part of the relief sought in para. 10 to refer to the words after "being educated in other countries".

28. As for the relief sought in para. 14, for the words in lines 1-5 from "the 'succession posts' " to "and generally", there has to be substituted the words "the decision set out in para. 1(12) of the Decisions in respect of which Relief is Sought". I do not give leave for the relief sought in para. 14 to include references to pages 114 and 115 of the 1994 Policy Address. I do not give leave for the relief sought in para. 15 to be claimed. As for the relief sought in para. 16, I do not give relief for that paragraph to include the words "localisation targets, Double Ladder and". As for the relief sought in paras. 19, 20, 21 and 22, I do not give leave for those paragraphs to include references to Art. 3 of the Bill of Rights, and I do not give the Applicants leave to apply for the relief sought in para. 23.

29. If the conditional leave to challenge some of the decisions lapses, it will, of course, be necessary to revisit the Relief Sought in relation to the relief sought in respect of those decisions.

SEPARATE HEARINGS

30. Finally, I do not think that the challenge to any of the decisions challenged should be hived off to a separate hearing, nor (subject to one exception) do I think that claims for a particular form of relief should be

hived off to a separate hearing. The one exception is the relief sought in para. 28 - the claims for damages. In my view, it would be absurd for the important constitutional issues which this case raises to be side-tracked by issues, important though they are to the individual Applicants, which have relevance to the four individual Applicants only. It is unnecessary, therefore, for either the Applicants or the Respondents to file any evidence in relation to those claims until after the substantive hearing. If the claims for damages can then be pursued, I shall at that stage give appropriate directions.