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CACV000339/1998
CACV 339/1998
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 339 OF 1998
(ON APPEAL FROM HCA 7513 OF 1994)
| BETWEEN |
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SHAU LIN CHI |
Plaintiff
(Respondent) |
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THE SECRETARY FOR JUSTICE |
Defendant
(Appellant) |
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Coram: Hon Mortimer V-P, Godfrey and Rogers JJA in Court
Date of Hearing: 28 May 1999
Date of Judgment: 28 May 1999
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J U D G M E N T
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Mortimer V-P: This is an appeal against Findlay J's order on 30 October 1998 by which he declared that the plaintiff was entitled to time-off in lieu of 1645 hours worked as overtime by the plaintiff when a Chief Officer in the Correctional Services Department.
The facts
2. The facts are simple. Between 20 September 1991 and 30 June 1992 he was required by his superior to perform what was described as "overnight special duty" or "overnight on-call duty" at the barracks of High Island Detention Centre - which was his normal place of work - from 5.15 pm in the evening to 8.30 am the following morning. For the first six months, he did that every third night. Thereafter, he was required to attend every other night. This was after his normal hours of work which were from 8.30 am to 5.15 pm. The result is that during the time when he was required to perform this duty, he was at his place of work for the whole of the 24 hours.
The decision appealed
3. The dispute below seems to have been slightly different from the one here. The plaintiff said that he was required to do "stand-by duty" under Civil Service Regulation 668 with the consequence that the was entitled to time-off in lieu under Regulation 667. It was overtime outside his normal working hours - described in the Regulations as "conditional hours". The Government said this was not so. He was "on call" and he was not working. Under Regulation 669 he was not entitled to overtime and therefore not entitled to time-off in lieu He was only entitled to a $50 per night allowance.
4. The judge found in favour of the plaintiff, holding that the officer was required to work during the "on call" time and he therefore was entitled to the time-off in lieu of the overtime he had performed.
The relevant Regulations
5. It is necessary to look at the Civil Service Regulations (CSR) which apply. The officer was required to work normal hours (conditioned hours). Those are provided for in CSR 540.
6. Overtime is defined in CSR 665 which reads:
"665 Overtime is work undertaken over and beyond an officer's conditioned hours, regardless of the day or time of day on or at which it is undertaken.
Regulation 667 which is partly relevant reads:
"667 Overtime should normally be recompensed by time off in lieu. Where this is, or is likely to be, impracticable within one month of the date on which the overtime is worked, an overtime allowance may be paid to eligible officers. An officer may, however, opt for time off in lieu at a later date instead of overtime allowance, subject to the exigencies of the service."
As a Chief Officer, he was not an eligible officer and therefore was not entitled to overtime allowance under that Regulation.
7. Regulation 669 is the regulation upon which this case turns. It reads:
"669 Any period beyond an officer's conditioned hours where the officer is required to be on call either at home or in another fixed location or through the medium of a paging device, so that he is continuously and immediately available to report for duty if required, is not regarded as overtime and is not subject to any recompense."
The issue
8. The question for our decision is simply this. Whether in Regulation 669 "another fixed location" includes the officer's place of work? Mr Geoffrey Ma SC for the Government, submits that the matter is simple and straightforward. The words "in another fixed location" simply mean "in any other fixed location" and that must include the officer's place of work.
9. It is necessary to consider for a moment the conditions under which the officer was required to be at his place of work. It was accepted below that he was required "to remain on call beyond his conditioned hours in the area of the High Island Detention Centre away from his official place of abode and accommodated at the barrack accommodation". The High Island Detention Centre was his usual place of work and his normal residence - described as "his official place of abode" - was some distance away.
10. So he was away from home and could not leave the barracks. Although he was entitled to use the leisure facilities, he was not entitled to have any of his family there. He was not required to wear uniform.
Conclusion
11. I return to the issue whether the words "another fixed location" in Regulation 669 could include his place of work. For my part, I am clearly of the view that it cannot include his place of work. If the whole of the Regulation is read, the obvious intent is that when the officer is "on call", he is continuously and immediately available to report to his workplace for duty if required from either home, another place or through the medium of a paging device. Another location cannot in those circumstances be at the very place where he has to work.
12. That Regulation is designed to indicate when he will be regarded as doing overtime. That envisages when he is "on call" at home or some other fixed location where he is contactable, he will not be on overtime until he is asked to report to his place of work to do his duty. He will then be at his work.
13. It is conceded that if the place of work is not "another fixed location" within the Regulation, the appeal must fail. That is how I would find. The judge, in my opinion, approached this matter with great commonsense and robustness, and in my view, his decision was correct.
14. I would dismiss the appeal.
Godfrey JA:
15. Under the fasciculus of regulations concerned with overtime in the Civil Service Regulations (regulations 665 to 674) an officer who is called on to work over and beyond his conditioned hours is entitled in certain circumstances to recompense. The officer may be required either to "stand-by" at his place of work, so that he may be so called on to work there, or he may be required to be "on call", either at home or elsewhere, for the same purpose. Different rules apply in each case. The concept of an officer being "on call" at his place of work seems to me to be a nonsense, and inconsistent with the framework of the regulations.
16. For these reasons, I, too, agree that we should dismiss this appeal.
Rogers JA:
17. I agree.
18. This appeal turns on the proper construction of regulation 669 of the Civil Service Regulations and whether the Government can bring itself within Regulation 669 and thus exclude the right of the Plaintiff to time off as compensation for overtime. I say "regulation" advisedly. The question is not what do the words "in another fixed location" mean outside the context of the Regulation. The words of the Regulation as any other statutory or regulatory provision must be read in their context. As has been said by the Vice-President that context dictates that those words cannot mean "at his place of work".
| (Barry Mortimer) |
(Gerald Godfrey) |
(Anthony Rogers) |
| Vice President |
Justice of Appeal |
Justice of Appeal |
Representation:
Mr Geoffrey Ma SC (Department of Justice) for the Defendant(Appellant)
Mr Gerard McCoy SC, and Mr Lawrence Lau (M/s Tsang, Chan & Woo) for the Plaintiff(Respondent)
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