SHAU LIN CHI v. SECRETARY FOR THE CIVIL SERVICE

HCAL 4/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 4 OF 1999

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J U D G M E N T

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Preliminary Point Judicial review

1. The Applicant in these proceedings applied for leave for Judicial Review for an order of certiorari to quash the Respondent's decision made on 20-10-98 that the Applicant's first date of appointment to the Hong Kong civil service was 2-10-74 and/or alternatively a declaration that the Applicant's first date of appointment was 1-5-69. Leave was granted on 8-2-99. At a hearing before Mr Justice Stock on 27-7-99, the Respondent raised the question of jurisdiction and in consequence the Application was adjourned to a date to be fixed pending determination of a preliminary issue.

2. As a result the Respondent filed a Summons requesting the Court to determine as a preliminary issue whether the Applicant's claim raises any issue of "public law" and is properly the subject of judicial review, or whether it is only appropriate for' private law' remedies by ordinary action in the Court of First Instance. The Court was asked to dismiss the Applicant's claim because it did not raise any issue of public law and was not properly the subject of any application for judicial review. That single issue is the subject-matter of this judgment.

Background Facts for the Purpose of the Preliminary Issue.

3. There is no dispute about the factual background. The Applicant worked as an Interpreter/Translator for the Royal Hong Kong Police force from 1-5-69 until either 30-9-74 or 1-10-74. He was engaged on temporary month-to-month terms and was not on the permanent establishment. In April 1974 he applied for the post of Prisons Officer, in the then Prisons Department, and was offered employment to begin on 2-10-74.

4. The Applicant was treated as transferring from one department to another which meant that he would take up his new post on a higher salary than the minimum salary of a Prisons Officer. He accepted the transfer on that basis, only to be informed some 4 months after his acceptance, and 2 months after commencing his training, that an error had been made, that he could not be treated as a transferee because he had not been on the permanent establishment and that he had to enter the service on the minimum salary scale. He was asked to confirm that he accepted appointment on those terms with retrospective effect to the 2-10-74.

5. The Applicant objected to the terms initially, but later accepted the revised terms by a letter dated 9-1-75. Thereafter for all purposes relating to salary, leave benefits and pensions the date of his first appointment has always been regarded as 2-10-74. The Applicant has now retired from government service, having sought and been granted permission to take early retirement, effective from 7-6-99.

6. The Applicant made 5 separate applications to the Respondent to amend his date of first appointment from 2-10-74 to 1-5-69. These were made on 7-12-96, 15-9-97, 13-10-97, 31-3-98 and 20-10-98. All were refused. It is in respect of the last-dated decision that the Applicant brought these proceedings.

7. The Applicant contended that his case involved a public law element first because of the following 'Wednesbury grounds'

1. the Respondent was performing a public function in making the challenged decision as the Respondent was responsible for inter alia determining and dealing with employment conditions for members of the civil service

2. Articles 100 and 102 spelt out the importance of the conditions of employment of the civil service.

3. That because of ' irrationality and unreasonableness' the Respondent refused/failed to recognise the Applicant's first date of appointment properly.

4. The Applicant is entitled to have his service record set straight by public law proceedings

8. The second group of grounds related to the Applicant's pension position. The argument summarised, was that as the Applicant had a right to a pension by virtue of section 5 of the Pensions Ordinance and as the date of first appointment was a factor to be taken into account in computation of the pension amount, the Respondent's decision affected the Applicant's right under the ordinance and the applicant was therefore entitled to seek a public law remedy.

9. The Applicant relied on the authority of R v. British Broadcasting Corporation, ex p. Lavelle [1983] 1 All Er 241 at 242 and R v. East Berkshire Health Authority ex p. Walsh [1985] 1 QB 152 @165 to support his proposition that as the statutory framework arising from the Pensions Ordinance provides protection beyond that afforded by the common law, it bestows on the Applicant a public law right.

10. The Respondent argued that the decision challenged was the Respondent's refusal to amend the Applicant's employment records in respect of the date of his first appointment and as such was a pure employment matter and thus a matter of private law not susceptible to judicial review. I was referred to various cases which made it clear that an application for judicial review should not be extended to a pure employment situation, or used for seeking remedies for breach or potential breach of a contract of employment.

11. The Respondent submitted that questions of salary, benefits and pensions (subject to the Pensions Ordinance), are rights accruing to the Applicant under his contract of employment by the Government and that that employment contract gives rise to private law rights only.

LAW

12. The parties were in agreement as to the general principles of law relating to the public/private law dichotomy; the most basic principle being that there is no test of general application for determining whether a decision made by a government official or a public body is a decision of public law susceptible to judicial review, or a decision of private law which normally can be challenged only in Court by ordinary action.

13. There is however clear authority that application for judicial review should not be extended to a purely employment situation, or used to seek remedies for breach (or potential breach) of a contract of employment.

14. The Respondent submits that the decision which the Applicant seeks to challenge is that made on 20-10-98 refusing to amend the date of his first appointment in the Applicant's employment records.

15. The Applicant believes that if the date of his first appointment could be back-dated he would be entitled to increased pension benefits and this is the driving force of his claim. The Respondent submits that even if that is so, or may be so, that salaries, fringe benefits and pensions benefits are rights which accrue to the Applicant under the contract of employment that he has with the government and that that contract gives rise to private law, not public law rights.

16. I accept that for the purposes of this hearing it is not necessary for me to consider whether or not the Applicant is entitled to increased pension rights if the date of his first appointment could be amended in the manner he wishes. That would involve assessing the nature of his earlier tenure and whether it was defined as pensionable: whether there had been delay which might militate against his being granted relief; whether there had been a break in his service and whether he was estopped from raising a matter that had been resolved with his consent many years ago.

17. Those issues fall to be decided whether the case proceed, by way of judicial review or by an ordinary action. The Respondent argued that as matters of fact had to be resolved an ordinary action was the more suitable way of doing so.

18. The Applicant pointed out that the perceived divide between public and private law was not readily discerned and that flexibility of procedure was desirable (Mercury Ltd v. Telecommunications Director [1996] 1 WLR 48 at 57, per Lord Slynn 'It is of particular importance, as I see it, to retain some flexibility as to the precise limits of what is called 'public law and what is called private law....In the absence of a single procedure allowing all remedies-... some flexibility as to the use of different procedures is necessary. It has to be borne in mind that the overriding question is whether the proceedings constitute an abuse of the process of the court'.

19. Employment by a public authority does not of itself inject any element of public law. It only made it more likely that there would be special statutory restrictions on dismissal or other statutory underpinning of the employment. (Sik Ka Yin v. Equal Opportunities Commission [1998] 1 HKC.) It appeared from the Applicant's submission that he was of the view that his status as a government employee entitled him to public law remedies.

20. I was referred to McClaren v. Home Office 1990 ICR 824. The plaintiff there was a prisoner officer who sought a declaration that he was entitled to work under the terms of an old shift system rather than one that was newly introduced. The Home Office sought to strike out his proceedings, which had been begun by an ordinary action, on the ground that he was only entitled to seek the relief he claimed by way of judicial review. The plaintiff appealed. It was held, allowing the appeal, that it was at least arguable that the relationship between the Home Office and prison officers appointed by it could be a contractual one; that the plaintiff had an arguable case that his particular appointment was contractual and that the collective agreements had become incorporated into his terms of service and that the issues relating to the plaintiff were in their nature matters of private law rather than public law. At pages 836 and 837 Lord Woolf set out the principles to be borne in mind in deciding this issue.

21. First in respect of personal claims against an employer, an employee of a public body is normally in exactly the same situation as other employees. Thus if he has a cause of action he can bring proceedings for damages, an injunction or a declaration (except in relation to the Crown). The fact he may be employed by the Crown may limit his rights against the Crown, otherwise his position is the same as that of any other employee.

22. Secondly there may be situations where an employee of a public body can seek judicial review and obtain a remedy which would not be available to an employee in the private sector. This arises where a disciplinary or other body exists which has been set up under the prerogative or statute, to which the employer or the employee is entitled, or required, to refer disputes affecting their relationship. That principle does not appear relevant to these proceedings.

23. The third principle to consider is that an employee of the Crown, or other public body, adversely affected by a decision of general application by his employer who contends that the decision is flawed on Wednesbury grounds can be entitled to challenge it by way of judicial review. The decision may affect individual members of staff, but it would only be if that decision was taken as a matter of policy in relation to staff in general that it could be the subject of judicial review. In the instant case that is not the Applicant's situation

24. The fourth principle to note is that there can be situations where although there are disciplinary procedures which are applicable they are purely domestic in nature and thus although their decisions might affect the public the process of judicial review will not be available.

25. Having considered the facts of this case, the relief that the Applicant is seeking and taking into account the particular nature of his erstwhile position as a Correctional Services Officer I am satisfied that the matters he wishes to have dealt with are not matters that should be dealt with by way of Judicial Review but matters that give rise to private law remedies, arising from his contractual relationship.

26. The decision challenged is a simple factual one. However if the decision is ultimately in the Applicant's favour it would not be decisive of any pension claim. The decision made by the Respondent on 20-10-98 is not a decision made in the performance of a public duty - it is a decision made by the Respondent as employer of the Applicant and has no bearing generally on the rights of other employees, nor does it involve policy.

27. I rule therefore that the Applicant's claim against the Respondent does not raise any issue of public law which is properly the subject of judicial review.

28. I have considered whether or not to exercise the discretion I have under O53(9)(5) RSC to order the proceedings to continue as if begun by writ. Having done so I am of the view that such an order would not serve to advance the Applicant's case as at present all that is sought is a bare Declaration. I decline to make such an order.

29. Costs of the Preliminary Hearing to be to the Respondent to be taxed if not agreed.