Re Association of Expatriate Civil Servants of Hong Kong and Others

1994 MP No. 3037

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. On 27th October, the Association of Expatriate Civil Servants of Hong Kong ("the AECS") and four of its members filed a notice of application for leave to apply for judicial review of various decisions contained in circulars issued by the Civil Service Branch and in various memoranda, and various decisions made by the Secretary for the Civil Service. That application has been placed before me.

2. There have been reports in the newspapers that the application was originally placed before Mayo J., but that he declined to consider the application because he thought that it would be inappropriate for him to do so since he is a member of the AECS. I, too, am a member of the AECS. I took the provisional view that my membership of the AECS should not debar me from considering the application. However, I was anxious to ensure that neither the Applicants nor the Respondents nor any other interested party had a valid objection to my dealing with the application. Accordingly, I directed that a hearing take place in open court for the determination of objections, if any, to the application being considered by me.

3. Having looked at the Applicants' grounds on which relief is sought, I took the view that the Senior Non-Expatriate Officers' Association ("the SNEOA") and the Hong Kong Chinese Civil Servants' Association ("the HKCCSA") might be interested parties, in the sense that they might come within the words of Ord. 53 r. 9(1) of the Rules of the Supreme Court. namely "any person who desires to be heard in opposition to the motion or summons, and appears to the Court to be a proper person to be heard". Accordingly, the notice of this hearing has been sent to the SNEOA and the HKCCSA to enable them, as well as the Applicants and the Respondents, to make such representations to me as they chose if they wished to contend that there is a valid objection to my dealing with the application.

4. The Applicants and the Respondents had before today written to my clerk informing her that they had no objection to my dealing with the application. They have confirmed that today through counsel. Moreover, no objection is made by the HKCCSA whose President has appeared before me today. The position of the SNEOA, however, is different. Its Honorary Secretary has appeared today. She has applied for an adjournment of the question as to whether I should deal with the application for 4 weeks to enable the SNEOA to obtain legal advice, not only on the issue with which I am concerned today, namely, whether it is appropriate for me to deal with the application, but also on the issue as to whether the SNEOA should join in the proceedings as an interested party.

5. I am not prepared to adjourn the question as to whether I should deal with the application. It was as long ago as 7th November that my clerk on my instructions wrote to the SNEOA enclosing a copy of a letter which she had written to the Applicants' then solicitors. In that letter, she wrote:

"Mr. Justice Keith is anxious to ensure that neither your clients, nor the Respondents, nor any other interested party have a valid objection to him dealing with your clients' application. He therefore proposes to appoint a date convenient to all concerned for the hearing in open court of objections, if any, to his considering your clients' application."

Ms. Chan has told me today that the SNEOA received a copy of that letter on 10th November. The SNEOA has therefore had over 2 weeks to decide the relatively straightforward question as to whether it wishes to oppose my dealing with the application. In my view, that was a sufficient time for them to have addressed that question, and I do not wish to adjourn the determination of the question any longer since that could have a knock-on effect on when the application can ultimately be disposed of. However, I do not want the SNEOA to have a sense of grievance about not being able to make such representations to me as it wishes, and although I have reached the view today on the material before me that there is no objection to my deciding the application, I am prepared to give the SNEOA liberty to apply within the next 7 days to me if it wishes me, on reflection, to re-visit the issue.

6. In view, though, of the publicity which this case has attracted, I think I should use the opportunity of this hearing to say why I think that my membership of the AECS should not debar me from dealing with this application. The current benefits which I derive from my membership of the AECS are limited to

(i) being relieved of the obligation to pay deposits in respect of various utilities, and

(ii) enjoying B.U.P.A. benefits at discounted rates.

The only benefit which I have sought to derive in the past from my membership of the AECS was information relating to the state of negotiations between the AECS and the Civil Service Branch over increases to the Non- Accountable Cash Allowance to which I was at that time, but no longer am. entitled. Those benefits (and such other benefits of membership which I have hitherto not taken advantage of) are wholly unrelated to, and wholly unaffected by, the decisions which the AECS and its four members seek leave to challenge. I would have been prepared to consider resigning from the AECS if anyone had pressed me to do so. Since no-one has, I propose to remain a member of the AECS.

7. I have also thought it right to address an altogether different question, which arises whether or not I was a member of the AECS. It may well have been inappropriate for me - or for any other Judge of the High Court, for that matter - to deal with the application if my terms and conditions as a member of the Hong Kong Judiciary were affected by the decisions under challenge. However, Judges of the High Court have security of tenure until they reach the age of 65. I have, therefore, assumed that the decisions under challenge do not affect Judges of the High Court at all, whether they are expatriates or locals. Certainly, neither the Applicants nor the Respondents, nor either of the potentially interested parties which I have identified, have sought to suggest the contrary to me.

8. For these reasons, I have decided that it is wholly appropriate for me to deal with the application.