CHAN NOI HEUNG AND OTHERS v. THE CHIEF EXECUTIVE IN COUNCIL

HCAL 126/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 126 OF 2006

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J U D G M E N T

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Introduction

1. All societies that consider themselves to be built on principles of social justice – and Hong Kong stands among them – recognise that every worker, no matter how humble his labour, is entitled to a liveable wage.  The International Covenant on Economic, Social and Cultural Rights, to which Hong Kong adheres, recognises the right of everyone to ‘just and favourable’ conditions of work including a fair wage.  The difficulty, of course, is how best to ensure, by the execution of socio-economic policies, that everyone does receive a fair wage.

2. This application for judicial review looks to whether the Chief Executive, sitting in Council, is obliged by law, in particular by the dictates of the Trade Boards Ordinance, Cap.63, to adopt one socio-economic policy in preference to another.

3. For the purposes of this judgment, it needs only be said that two broad bodies of opinion exist as to how best to ensure that everyone in the workplace receives a fair wage.  Both these bodies of opinion are supported by academic writings.

4. The one body of opinion holds that, even in a free market economy like Hong Kong, or perhaps especially in such an economy, legal measures must be adopted to ensure fair working conditions for the most vulnerable.  Such measures include the fixing of minimum wages for particularly lowly paid occupations and the imposition of criminal sanctions on employers who fail to pay those minimums.  Many jurisdictions, both civil and common law, including Hong Kong, have enacted laws to combat poverty in the workplace by the imposition of minimum wages.

5. Over the past few years there has been an on-going debate in the Legislative Council as to whether the Government should introduce a regime of fixed minimum wages to protect workers in the most lowly paid occupations, particularly those employed as cleaners and security guards.  Those pressing the Government to introduce such a regime have done so, not only on the basis that it is the correct policy, but also on the basis, as I have just said, that the necessary legislation is already in existence to enable the policy to be put into effect.

6. The legislation in question is the statute to which I have referred, the Trade Boards Ordinance.  It provides that the Chief Executive in Council may, at any time he thinks fit, fix minimum wages for any occupation if he is satisfied that the wages being paid to workers in that occupation are unreasonably low : see s.2(1).  The legislation also provides for the establishment of Trade Boards which the Chief Executive may authorize to advise him in connection with the fixing of any minimum wage : see s.2(2).

7. There is, however, a second body of opinion which, outside of the most extreme circumstances, opposes the imposition of minimum wages, believing that in a free enterprise economy it is a poor instrument for alleviating poverty.  The Government at this time holds to this body of opinion.

8. It is the Government’s position that the level of wages should be determined by the forces of supply and demand in the labour market.  This, it is said, has been shown to work for the benefit of all workers including the lowest paid.  It is the Government’s concern that statutory minimum wages may hurt those they are designed to help.  If set too high, so the argument goes, a minimum wage may act as a disincentive to employ more people and may even result in people losing their jobs.  If set too low, it may act as a disincentive to pay an increased wage no matter how productive the workforce.

9. It is, as I understand it, the Government’s present position that a pragmatic approach, one of encouragement and voluntary participation, will achieve more positive results than the introduction of statutory minimum wages.  In October 2006, in respect of the cleaning and security guard sectors, Government introduced an initiative called the Wage Protection Movement.  In a policy address given in that month the Chief Executive said :

“We will actively encourage corporations and contractors to join this Movement to ensure that employees in these two sectors will receive wages not lower than the average market rates of the relevant industries and occupations as published in the Quarterly Report of Wage and Payroll Statistics of the Census and Statistics Department.  These employees will enjoy the same protection as their counterparts employed under Government outsourced service contracts.  The Labour Department will promote wage protection through a package of measures including promotion, publicity, public education, contractual regulation and enforcement.”

The Chief Executive continued by saying :

“We will monitor the effectiveness of the Wage Protection Movement … and conduct a comprehensive review two years after implementation.  If the review finds that the Movement has failed to yield satisfactory results, we will set out to prepare for the introduction of legislation for a minimum wage in the cleansing and guarding services sectors.”

10. In short, while the Chief Executive advocated a pragmatic approach that avoided the imposition of minimum wages, he left the door open for the introduction of legislative measures if the extra-legislative approach failed.

11. A number of persons, however, were concerned that the very real – and present – plight of cleaners and security guards was being ignored because the Chief Executive declined to exercise his powers under the Trade Boards Ordinance to immediately fix minimum wages.  One of those persons was the third applicant, a Legislative Councillor.  In a letter dated 6 October 2006, he asked the Chief Executive :

“… is the Government still going to maintain its view and choose in an unrighteous way not to invoke the Trade Boards Ordinance to fix a minimum wage and to set up Trade Boards?”

12. In a reply dated 11 October 2006, the Chief Executive said that the Trade Boards Ordinance, having been on the statute books for well over 60 years, was now in many respects outdated and ‘unable to meet with the needs and changing circumstances of modern-day society’.  In addition, a number of provisions were believed to be inconsistent with the Basic Law and/or the Bill of Rights.

13. The Chief Executive went on to speak of the Government’s Wage Protection Movement citing it as evidence that the Government was not ignoring the plight of cleaners and security guards.  The Chief Executive concluded by saying to the third applicant that if the Movement failed to have satisfactory results then legislation may have to be introduced.

14. I have at some length set out the opposing views on the issue of statutory minimum wages even though, of course, the merits of socio-economic policy are not matters for this court to determine.  I have done so to put into context the assertion of the applicants that, in declining to impose statutory minimum wages to protect at least those employed as cleaners and security guards, the Chief Executive has not only adopted a misconceived policy but has acted in defiance of his constitutional obligations.

15. As for the first applicant, she has worked as a cleaner of buses since 2003.  She was initially employed by one contractor, a limited liability company.  Her terms of employment then required her to work nine hours a day, with just four days off a month, for a remuneration of $4,000 per month.  In 2004, however, the contractor was changed, another limited liability company becoming the new contractor.  The applicant continued the same work cleaning the same buses.  But, although still obliged to work nine hours a day, her remuneration was now reduced to $3,700.  A year later it was further reduced to just $3,400 per month.  It is the first applicant’s case that the failure of the Chief Executive in Council to impose a statutory minimum wage for cleaners has left her the victim of exploitation, denying her a liveable wage.

16. The second applicant, a Legislative Councillor, withdrew his application before the substantive hearing.

17. The third applicant, as I have said, is also a Legislative Councillor.  As I have said, as a Councillor he wrote to the Chief Executive in October 2006 requiring him to use his powers under the Trade Boards Ordinance.  It is his case that the refusal of the Chief Executive, sitting in Council, to do so was an unlawful refusal.

18. It should be said that the third applicant is a political activist, well known in Hong Kong by the name of ‘Long Hair’.  At the substantive hearing he made his submissions in person.  He said that at one time he had been a cleaner too and well understood the plight of the first applicant.  He concluded his submissions with the statement that he stood before the court seeking no more than to protect the dignity of the labourer.

The applicants’ challenge

19. Expressed in the broadest of terms, the applicants contend that the Chief Executive in Council, notwithstanding any economic policy he may wish to espouse, has a constitutional duty to exercise his powers under the Trade Boards Ordinance.  The Chief Executive has recognised that cleaners and security guards receive unreasonably low remuneration.  He is therefore constrained to exercise his powers under s.2 of the Ordinance to fix minimum wages rather than leaving persons employed in these two sectors to the mercies of the free market.

20. The constitutional duty, it is said, arises out of two articles of the Basic Law : art.48(2) and art.64.

(i)    Art.48(2) reads :

“The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions:

(1)    …

(2)    To be responsible for the implementation of this Law and other laws which, in accordance with this Law, apply in the Hong Kong Special Administrative Region.”

(ii)    Art.64 reads :

“The Government of the Hong Kong Special Administrative Region must abide by the law and be accountable to the Legislative Council of the Region: it shall implement laws passed by the Council and already in force; it shall present regular policy addresses to the Council; it shall answer questions raised by members of the Council; and it shall obtain approval from the Council for taxation and public expenditure.”

21. The applicants have therefore sought a declaration to the following effect; namely, that Chief Executive in Council has a constitutional duty under arts.48(2) and 64 to implement and enforce the Trade Boards Ordinance in accordance with its provisions and underlying policy insofar as it is required by or is consistent with the Basic Law.

22. In my judgment, the declaration sought is somewhat ambiguous.  As I understand it, it is not disputed that the Chief Executive in Council has a duty to implement the Ordinance.  At issue is the manner in which he is obliged to implement it.  That being said, however, I understand the relief sought to be a declaration that, absent good (or exceptional) reason, the Ordinance imposes on the Chief Executive in Council a duty to implement the Ordinance by actually fixing minimum wages to protect any occupation he has identified as being paid unreasonably low wages.

23. In the alternative, a declaration to the following effect has been sought; namely, that, pursuant to his constitutional duty, the Chief Executive in Council is at least obliged to consider, from time to time, exercising his powers under the Trade Boards Ordinance to fix minimum wages.  This alternative declaration is also, in my view, a little ambiguous.  As I understand it, it is based on the assertion that the Chief Executive in Council may not simply ignore the Trade Boards Ordinance because it is considered redundant or because Government rejects in principle the use of statutory procedures to fix minimum wages.

24. The applicants have also sought a declaration to the effect that the Chief Executive in Council has, in fact, failed to discharge his constitutional duty to implement the power conferred on him by the Trade Boards Ordinance.  Presumably, although not stated, this asserted failure is a failure to employ the Ordinance to fix minimum wages for cleaners and security guards.

25. The applicants have further sought an order of certiorari to bring up and quash the Chief Executive’s refusal, contained in his letter of 11 October 2006, to implement the provisions of the Trade Boards Ordinance.  In that respect, they have sought also an order of mandamus compelling him to implement the provisions of the Ordinance, again presumably for the protection of cleaners and security guards.  During the course of the hearing, however, I made it plain that, in my view, if I was to grant any remedy, this is a case in which declaratory relief alone would suffice.  

The issue to be determined : a matter of statutory construction

26. It is not disputed that the Chief Executive, pursuant to art.48(2) of the Basic Law, is responsible for the implementation of Hong Kong’s laws.  Those laws include its statutes.  The Trade Boards Ordinance was enacted some 67 years ago.  It has never been used.  But, whether it has been used or not, or whether some of its provisions are now perhaps outdated; for example, the very low level of fines that courts may impose, the applicants point to the fact that it remains on the statute books and still provides adequate operating machinery for setting minimum wages and enforcing them.

27. Mr Pun, counsel for the first applicant, placed considerable emphasis on the principle set down in Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997.  Indeed, the principle appears to have been the essential basis of his case.  The principle, in the context of the present case, is to the effect that the Legislative Council, having given to the Chief Executive in Council a discretion under the Trade Boards Ordinance, that discretion is to be used to promote the policy and object of the Ordinance.  If the discretion is not used for that purpose but is used to frustrate the policy and objects of the Ordinance then this court is entitled to interfere.

28. Both Mr Pun, for the first applicant, and the third applicant have argued that, in respect of cleaners and security guards, their remuneration having been recognised as being unreasonable low, if the Chief Executive in Council is to exercise his discretion to promote the policy and objects of the Ordinance he is obliged to fix minimum wages for those two occupations.  In failing to act in terms of the Ordinance to set minimum wages, it is contended that the Chief Executive in Council has acted to frustrate the policy and object of the Ordinance.

29. For the respondent, leading counsel, Mr Jat Sew Tong SC, has said that, upon a true construction of the Ordinance, the discretion given to the Chief Executive in Council is not one which obliges him to act as the applicants contend. 

30. The issue in this application, therefore, is one of statutory construction.  As Lord Reid said in Padfield (page 1030C), the policy and objects of a statute must be determined by construing the instrument as a whole. 

31. The Trade Boards Ordinance came into effect in 1940.  Its purpose is stated to be —

“To provide machinery for fixing minimum wages, determining normal working hours, and fixing overtime rates in trades where the wage standards are unreasonably low.”

32. It will be seen that the purpose is limited.  It is no more than to provide a set of legal procedures for the fixing of minimum wages.  The circumstances in which, if at all, the procedures are to be used is not stated.

33. It is only in s.2 of the Ordinance that any indication is given of the circumstances in which the legal procedures are to be employed.  S.2 is divided into two subsections.  S.2(1) provides that :

“The Chief Executive in Council may, at any time he thinks fit, by Government notification published in the Gazette, fix minimum rates of wages for any trade in Hong Kong either generally or in any specified area or district in any case in which he is satisfied that the minimum rates of wages being paid to any persons employed in any such trade are unreasonably low.  Every notification fixing minimum rates of wages may be varied from time to time or revoked.”

34. S.2(1) says no more than that the Chief Executive in Council may – at any times he thinks fit – fix a minimum wage for any occupation which he has identified as being unreasonably lowly paid.  In short, it is left to the Chief Executive in Council, in governing Hong Kong, to determine the appropriate circumstances in which, if at all, the procedures are to be employed. 

35. S.2(2) states that :

“For the purpose of instituting, making, and conducting any inquiry that may be deemed advisable in connection with fixing any minimum rates of wages in any trade under this Ordinance, and for reporting thereon, the Chief Executive may at any time establish for any trade, or for any branch of work in a trade, a Trade Board, consisting of members representing employers and members representing workers, in this Ordinance referred to as representative members, in equal proportions, and of appointed members, provided that the number of appointed members shall be less than half the total number of representative members. Where a Trade Board has been established for any branch of work in a trade, any reference in this Ordinance to the trade for which the Board is established shall be construed as a reference to the branch of work in the trade for which the Board has been established.”

36. S.2(2) gives a discretion to the Chief Executive, at any time, to establish a Trade Board.  There is no stated obligation on him to do so.  If, however, a Trade Board is established to advise the Chief Executive, it is obliged to investigate the matters mandated to it and to submit a report.  In this regard, s.2(7) reads :

“A Trade Board for any trade shall consider, as occasion requires, any matter referred to them by the Chief Executive with reference to the industrial conditions of the trade, and shall make a report upon the matter to the Chief Executive.”

37. The Trade Boards Ordinance is not a long or complex piece of legislation.  In looking to its policy and object, as far as the use of the machinery created to fix minimum wages is concerned, I do not see that any further sections need be examined.

Looking to the plain meaning

38. A primary rule of statutory interpretation is that words should generally be given the meaning which the normal speaker of the language would understand them to bear in their context.  As Lord Reid expressed it in Pinner v. Everett [1969] 1 WLR 1266, at 1273 :

“In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute.  It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrase.”

39. In my judgment, on first consideration, the Ordinance, in providing for a power vested in the Chief Executive in Council to fix minimum wages, is capable of one legal meaning only.  The power is a discretionary one.  It is discretionary because, on a plain reading, it is to be employed only when, if at all, the Chief Executive in Council thinks it appropriate to do so.  There is a trigger to the exercise of that discretionary power.  The Chief Executive in Council must identify an occupation that he is satisfied is paid unreasonably low wages.  But, once triggered, the exercise of the discretionary power is essentially unfettered.

40. As to the policy and object of the Ordinance, the legislature has put into the charge of the Chief Executive in Council a weapon to combat the social evil of poverty in the workplace.  But it is a weapon to be used only when, if at all, the Chief Executive in Council thinks fit.

41. The legislature, having put the weapon into the charge of the Chief Executive in Council, he may not refuse to employ it if he is satisfied that circumstances demand its use.  But if, for example, he is of the opinion that other measures, including extra-legislative measures, are to be preferred, he is under no duty to exercise his discretion to fix a minimum wage or to establish a Trade Board to advise him concerning the matter.  

42. Mr Pun has contended that, on all the evidence, it is apparent that the Chief Executive in Council has turned his back on the exercise of the power vested in him because, as a matter of economic principle, he is opposed to fixing minimum wages.  That, he has said, amounts to frustrating the policy and object of the Ordinance.

43. Yes, to a degree the Chief Executive in Council may have been guided by economic principle.  Principles, born of study and experience, give form to the discharge of all economic policies.  But the fact that, as a matter of present economic policy, bearing in mind the realities of Hong Kong’s market-based economy, the Chief Executive in Council does not believe that fixing minimum wages is an appropriate policy means only that he has taken that option into consideration and rejected it.  He has rejected it because, in his opinion, there are at this time more effective measures available to him.  Those measures include extra-legislative initiatives which have already been put into effect.

44. In any event, on a purely factual basis, it cannot be said, in my view, that the Chief Executive in Council has – no matter what the circumstances may turn out to be – rejected the possibility of fixing minimum wages by way of legislation.  In his letter to the third applicant and in a policy address, the Chief Executive has spoken of the possibility of legislative measures to assist cleaning workers and security guards if other initiatives fail.

45. The fact that the Chief Executive in Council has expressed a concern that the Trade Boards Ordinance is no longer adequate for the purpose for which it was intended does not, in my judgment, amount to a denial of the object of the Ordinance.  It is, I believe, a legitimate factor to be taken into account in the exercise of his discretion.  In any event, there is no suggestion made that it is the sole factor dictating the exercise of discretion.  It is one factor among several.

Making a fully informed interpretation

46. Mr Pun, supported by the third applicant, has contended that a true construction of the Ordinance can only be ascertained, first, by having regard to the international conventions and covenants which gave rise to, and inform, the purpose and intent of the Ordinance and, second, by looking to the Ordinance in its constitutional context.

47. If this is done, Mr Pun has argued, then it will emerge that a duty is placed on the Chief Executive in Council, not simply to employ his power under the Ordinance if and when he thinks fit, but to do so on all occasions when he is satisfied that any occupation is in receipt of unreasonably low wages unless he has good reason – indeed Mr Pun went so far as to say ‘exceptional’ reason – not to do so.

A consideration of the history

48. The provisions of the Trade Boards Ordinance are drawn from the International Labour Convention No.26 which came into being in 1928 in accordance with the provisions of the constitution of the International Labour Organisation.  The Convention bears the formal title of the ‘Minimum Wage-Fixing Machinery Convention, 1928’.

49. The International Labour Organisation itself was created in 1919 under Part XIII of the Treaty of Versailles.  A primary motivation for its creation was humanitarian.  The preamble to its constitution refers to the position, as it was at the end of the First World War, in which “conditions of labour exist involving … injustice, hardship and privation to large numbers of people.”

50. While clearly the underlying purpose of the International Labour Convention No.26 is to advance the aims of the International Labour Organisation itself; that is, to seek to achieve social justice for workers by ensuring that they are paid a liveable wage, the specific nature of the Convention itself is more technical.  As the formal title of the Convention makes clear, it is to create (or maintain) legal machinery in terms of which minimum rates of remuneration can be secured for workers in particular trades or industrial and commercial occupations.

51. Art.1 of the Convention reads :

“Each Member of the International Labour Organisation which ratifies this Convention undertakes to create or maintain machinery whereby minimum rates of wages can be fixed for workers employed in certain of the trades or part of trades (and in particular in home working trades) in which no arrangements exist for the effective regulation of wages by collective agreement or otherwise and wages are exceptionally low.”

52. Art.1 is to be read with art.3 which provides that :

“Each Member which ratifies this Convention shall be free to decide the nature and form of the minimum wage-fixing machinery, and the methods to be followed in its operation …”

53. Read in the context of the Convention as a whole, these two articles oblige members of the International Labour Organisation who have ratified the Convention to create (or maintain) machinery in terms of which minimum wages can be set and enforced.  Members are free, however, to decide the ‘nature and form’ of the machinery and how it will operate.  Importantly, on my reading of the Convention, no positive duty is placed on members actually to proceed to fix minimum wages, either on an ad hoc basis or as a general socio-economic measure.  I say that because, first, the machinery need only be used for the protection of those workers employed in trades or in areas of industrial or commercial activity identified as being subject to ‘exceptionally low’ wages.  Second, even in respect of those workers, it need not be employed if arrangements exist for the effective regulation of wages by collective bargaining; for example, if workers have trade union representation, or some other unspecified but effective arrangement is in place.  In this last respect, the phrase used in art.1 is the very general phrase ‘or otherwise’.

54. The Convention was ratified by the United Kingdom in June 1929 and legislation passed through Parliament in order to give effect to it.  It is important to note, however, that, pursuant to art.35(2) of the constitution of the International Labour Organisation, the extension of the Convention to Hong Kong was only formally registered in June 1962.

55. Despite this, the Untied Kingdom took early steps to ensure that domestic legislation was enacted in this jurisdiction to meet the obligations imposed by the Convention.  The legislation in question was the Minimum Wage Ordinance, 1932.  It was a short, straightforward statute consisting of just four sections.  S.2(1) and (2) provided that :

“(1)   The Governor in Council may, at any time he thinks fit, fix a minimum wage for any occupation in which he is satisfied that the wages paid are unreasonably low.

(2)   For the purpose of instituting, making, and conducting any inquiry that may be deemed advisable in connection with fixing any minimum wage under this Ordinance, and for reporting thereon, the Governor may at any time appoint a Board of Commissioners consisting of five persons, of whom one shall be a judge or magistrate, who shall be chairman of the Board.”

56. In introducing the Minimum Wage Ordinance Bill, the Attorney General’s brief records that —

“Legislation on the lines of this Ordinance has been suggested by the Secretary of State, in his circular dispatch of the 30^th March, 1932, in order to carry out the obligations arising from Article 421 of the Treaty of Versailles in respect of the International Labour Convention concerning the creation of minimum wage fixing machinery.”

57. I am told that the Government did not at any time use the Ordinance.  It was repealed in 1940, being replaced by more comprehensive legislation; that is, the present Trade Boards Ordinance.  But the essential purpose of the new legislation has remained the same.  It is to provide the machinery for fixing minimum wages.

58. It will be seen that the discretionary power conferred by s.2(1) of the Trade Boards Ordinance (cited in para.33 above) is in substance no different from that conferred by s.2(1) of the earlier legislation.  Both provide that the Head of Government, sitting in Council, may, at any time he thinks fit, fix a minimum remuneration for any occupation in which he is satisfied that wages paid are unreasonably low.  S.2(2) of both Ordinances, in the conferring of a discretionary power, are also essentially the same.  Indeed, they commence with identical wording.

59. While, therefore, the Trade Boards Ordinance introduced more comprehensive machinery, in my judgment it did not enlarge upon nor diminish the discretionary power conferred by the earlier statute.  Equally, it did not enlarge upon nor diminish any duty imposed as to the exercise of that discretionary power.

60. It is to be noted that the International Labour Convention No.26, having only been formally extended to Hong Kong in 1962, ceased to have application to Hong Kong in 1986.  In that year, the United Kingdom, as it was entitled to do, withdrew from the Convention and it was agreed that Hong Kong, not being a self-governing territory, the denunciation would extend to it too.

61. In Hong Kong, although the Convention ceased to apply, the Ordinance remained in force.  The Ordinance is therefore to be construed in accordance with the policy and objects of the Convention.  But that being said, I do not see that the Convention places a positive duty on members to fix minimum wages of the kind advocated by Mr Pun in terms of which all members must fix minimum wages unless there are exceptional reasons not to do so.

62. In summary, I do not believe that looking to the genesis of the Trade Boards Ordinance advances the case for the applicants.

Looking to art.7 of the International Covenant on Economic, Social and Cultural Rights

63. Art.39 of the Basic Law states that the provisions of the international labour conventions applied to Hong Kong as at the change of sovereignty shall remain in force and shall be implemented through the laws of the Special Administrative Region.  The article reads :

“The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.  Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

64. As at the change of sovereignty, however, on the basis of the history that I have outlined, the International Labour Convention No.26 was not applied to Hong Kong.  Accordingly, the fact that the Trade Boards Ordinance was drawn from the Convention and continues to implement the Convention in our domestic law does not give the rights and duties contained in it any constitutional status by reason of art.39.

65. But while the Convention was not applied to Hong Kong through art.39, the International Covenant on Economic, Social and Cultural Rights was applied to Hong Kong.  Art.7 of the International Covenant addresses the right of all persons to enjoy reasonable conditions of work.  It states :

“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a)      Remuneration which provides all workers, as a minimum, with:

(i)       Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii)      A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b)     Safe and healthy working conditions

(c)      Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d)      Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.” 

66. Mr Pun has submitted that art.7 of the Covenant has been incorporated into Hong Kong law in the form of a number of Ordinances, the Employment Ordinance, Cap.57, being one.  Another of those Ordinances, he has submitted, is the Trade Boards Ordinance.  As an expression of art.7 of the Covenant, the Ordinance therefore enjoys constitutional underpinning.

67. I do not agree.  Art.7, in dealing with the issue of wages, speaks (in broad and generous language) of the right of all persons to the enjoyment of ‘just and favourable’ conditions of work which will, at least, provide them with ‘fair wages’ and a ‘decent living’ for them and their families.  The article does not impose an obligation to set up legal machinery for fixing minimum wages let alone an obligation to actually fix them. 

68. I accept, of course, that the policy and object of the Trade Boards Ordinance, in providing for the creation of legal machinery to fix minimum wages, is consistent with the aims of art.7.  Both look to alleviating poverty in the workplace.  But it goes too far, in my view, to say that the Ordinance is thereby the incorporation into Hong Kong law of art.7.

69. It must be remembered, of course, that the International Covenant on Economic, Social and Cultural Rights only came into being some 20 years or more after the Trade Boards Ordinance was promulgated in 1940.

70. During the course of submissions, Mr Pun has referred me to a number of exchanges between the Hong Kong Government and the Committee on Economic, Social and Cultural Rights.  These exchanges Mr Pun has said, indicate that the Committee considers the provision of minimum wages to be a matter contemplated by art.7 of the Covenant.

71. In its report of May 2001 (Report E/C.12/1/Add.58), the Committee reiterated earlier recommendation that the HKSAR —

“… review its policy in relation to unfair dismissal, minimum wages, paid weekly rest time, rest breaks, maximum hours of work and overtime pay rates, with a view to bringing such policy into line with the HKSAR obligations as set forth in the Covenant.”

72. In a later report to the Committee, the Hong Kong Government said that it did not intend to introduce legislation (or further legislation) to regulate minimum wages and other work-related matters in respect of which the Committee had expressed concern :

“Minimum wages, pay for weekly rest day, rest breaks, number of hours of work and overtime pay rates, are terms and conditions of employment.  As such, they are matters for negotiation between employers and employees in the context of market conditions.  Hong Kong is a small, open, externally oriented and market-driven economy that must retain the flexibility to adjust to changes in economic circumstances.  Excessive constraints on the labour market – such as maximum working hours and statutory overtime pay – would reduce that flexibility and increase labour costs.  For these reasons, we do not intend to legislate in these areas.  But we will progressively improve employees’ rights and benefits in ways that are commensurate with the pace of Hong Kong’s economic and social development and that strike a reasonable balance between the interests of employers and employees.”

73. Even if, in light of these exchanges, it is accepted that art.7 of the International Covenant imposes an obligation to create measures concerning minimum wages, it does not specify what these measures must be nor does it specify that, even if other effective measures are available, a regime of minimum wages must nevertheless – absent good (or exceptional) reasons otherwise – be fixed.  In the circumstances, I fail to see how art.7, even with the constitutional underpinning of art.39 of the Basic Law, can so colour the wording of the Trade Boards Ordinance as to give to it a meaning which I am satisfied, on a plain reading, it is simply not capable of holding.

74. In coming to this determination, I have of course taken into account the well settled principle that, in so far as possible, our courts ought always to interpret domestic statutes so as to be in conformity with international law.  In the present case, however, for the reasons given, I am satisfied that it is not possible, even in the light of the International Labour Convention No.26 and/or the International Covenant, to place a construction on the Trade Boards Ordinance that accords with the construction advocated by the applicants.

Conclusion

75. I am satisfied, therefore, that the Trade Boards Ordinance, on a true construction, is capable of only one legal meaning as to its policy and object and, through that, as to the nature and extent of the discretionary power vested in the Chief Executive in Council.  In my judgment, the interpretation advocated by the applicants is untenable. 

76. Earlier in this judgment, (in paras.39-41 inclusive), I set out what I considered, provisionally, on a plain reading of the Ordinance, to be its true legal meaning.  Having considered the applicants’ various arguments, I am satisfied that my provisional interpretation remains the correct interpretation.

77. To repeat, in terms of the Ordinance, the legislature has vested in the Chief Executive in Council a discretionary power to fix minimum wages.  It is discretionary because, on a plain reading, it is to be employed only when, if at all, the Chief Executive in Council thinks it appropriate to do so.  There is a trigger to the exercise of that discretionary power.  The Chief Executive in Council must identify an occupation that he is satisfied is paid unreasonably low wages.  But, once triggered, the exercise of the discretionary power is essentially unfettered.

78. As to the policy and object of the Ordinance, the legislature has put into the charge of the Chief Executive in Council a weapon to combat the social evil of poverty in the workplace.  But it is a weapon to be used only when, if at all, the Chief Executive in Council thinks fit.

79. The legislature, having put the weapon into the charge of the Chief Executive in Council, he may not refuse to employ it if he is satisfied that circumstances demand its use.  But if, for example, he is of the opinion that other measures, including extra-legislative measures, are to be preferred, he is under no duty to exercise his discretion to fix a minimum wage or to establish a Trade Board to advise to him concerning the matter.  

80. As to the decision of the Chief Executive in Council not to fix minimum wages for cleaners and security guards, the evidence reveals that he has not simply ignored the problem, refusing thereby to exercise his discretionary power.  He has adopted other measures.

81. Whether history will prove the Chief Executive in Council to be right or wrong in the exercise of his discretionary power – in his decision at this time to pursue extra-legislative measures – is not a matter for this court.  This court is concerned only with the legality of his actions and in that regard I do not see how it can be said that the Chief Executive in Council has either misconstrued the Ordinance or exercised his discretion in a way which runs contrary to its objects.

82. This application for judicial review is therefore dismissed.

83. In respect of costs, it seems to me that costs should be awarded to the respondent.  I make an order nisi to that effect.  That order will be made final in 14 days from the date of handing down this judgment unless, prior to that, notice is given that the matter is to be set down for argument.