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

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1995, No. 260
(Civil)

-------------------------------------

----------------------

J U D G M E N T

----------------------

Mortimer, V.-P. :

1. The applicant applies for leave to appeal to the Court of Final Appeal against a decision of this Court - differently constituted - on 28 November 1997. It is not suggested that this is an appeal as of right.

2. It is necessary to address the background a little. The applicant is the AECS. That Association took proceedings to judicially review the Hong Kong Government's decision to introduce a scheme whereby civil servants who were employed on agreement contracts and whose agreements had come to an end, had their posts put up for competition so that, it was said, the best person for the post could be appointed rather than simply renewing that person's agreement.

3. The AECS's case was that the scheme was not bona fides because it was not designed to find the best man for the job. It was a scheme to further the government's policy of localising the posts. The nub of the matter was that a local officer could avoid his post being "opened up" by going onto the permanent establishment whereas that course was not open to an overseas officer.

4. This point came before Keith J along with a number of other applications concerning the localisation scheme. In his judgment on 31 October 1995 Keith J found against the AECS on the opening-up scheme. The main witness was a Mr Jackson. Although his evidence was challenged he had not been required to attend for cross-examination. As the issue was whether his stated motive was the true motive the judge felt unable to find that fact against the government in the absence of hearing the witness both give evidence and be cross-examined.

5. The matter came to appeal. The AECS challenged the judge's finding on the opening-up scheme and applied to adduce further evidence at the appeal. This application was refused. The AECS failed to demonstrate that there was an appropriate basis for allowing in the fresh evidence. The Court of Appeal found against the AECS.

6. After the Court of Appeal gave judgment to that effect on 22 November 1996, the order was not drawn up. When the government presented an order for perfection, the AECS objected and the matter was listed for hearing before this Court on 28 November 1997 - over a year later. The AECS sought to take advantage of the failure to draw up the order for perfection and the court's failure to insist upon it being drawn up earlier. They applied to re-open that same issue on the opening-up scheme and also again to adduce further evidence. They submitted that the judgment of Keith J had been obtained by fraud.

7. The main thrust of the application related to a document which a government officer had produced to the Legislative Council. That document had a heading, "Impact of the Judgment" with a sub-heading, "The Localisation Policy". In the body of the document there appeared the words

"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".

There were other documents which the Association said were inconsistent with the avowed purpose of the scheme.

8. In a full-day's hearing, this Court looked at those documents and refused the application to adduce further evidence and refused in those circumstances to re-open and hear the issue that the original judgment had been obtained by fraud. This was an exercise by this Court of a discretion whether to allow the appeal to be re-opened on this point, or whether to refuse and allow the Association, if it saw fit, to bring further proceedings to set aside that part of the judgment on the grounds of fraud.

9. This application for leave to appeal is made on the basis that this Court, in refusing to allow the admission of further evidence and for the earlier appeal to be re-opened on that evidence, was plainly wrong in exercising its discretion. Two main points are made. First, that it is unjust to allow the judgment to stand. That it should be set aside at once and a decision should be made on the new evidence to that effect. Secondly, that when considering the evidence that the Association sought to put forward on 28 November, this Court failed to consider and evaluate it properly. By those means it is suggested that this Court failed to apply the correct principles and was in any event plainly wrong in its decision.

10. For my part, looking at the whole case - I would hope with an independent mind - it seems to me that neither of these points are seriously arguable. This Court did look at the evidence. It looked in particular at the main part of it, to which I have already made reference. On that it decided:

"It would, of course, be quite impossible to reach a concluded decision on bona fides or fraud from such a document - and other documents which may be inconsistent - without hearing oral evidence from the people concerned if they wish to appear and give an explanation."

It was partly on that basis that this Court exercised its discretion against the Association by not allowing the matter to be re-opened after such a length of time and to leave the Association to pursue its remedy by bringing fresh proceedings if it was so inclined.

11. In those circumstances there is no basis, in my judgment, upon which the Association can be given leave to appeal. Again, the Association is not shut out because it may make a similar application, should it wish, to the Court of Final Appeal.

12. In those circumstances I would refuse the application.

Godfrey, J.A.:

I agree.

13. It appears that the order of this court made pursuant to this court's judgment of 22 November 1996 was perfected on 2 December 1997. The order of this court made pursuant to this court's judgment of 28 November 1997 was perfected on 11 December 1997. If the appellants wish to challenge these orders they should, in my judgment, be left to do so by applying to the Court of Final Appeal for leave to appeal from these orders. Alternatively, they can, if so advised, institute proceedings to set aside the judgment of Keith J of 31 October 1995, the order pursuant to which was made on 22 December 1995.

14. There is nothing further I wish to add.

Rogers, J.A.:

I agree. I would also refuse the application.

Mortimer, V.-P.:

15. Costs will follow the event. The respondents shall have the costs of the application.