THE ASSOCIATION OF EXPATRIATE CIVIL SERVANTS OF HK v. THE SECRETARY FOR THE CIVIL SERVICE

1998, No. A.L. 9

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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Introduction

1. Overseas officers who joined the Civil Service after 28th March 1985 were not allowed to join the permanent establishment. They could only serve on agreement terms. Those overseas officers on agreement terms who were already in the Civil Service on 28th March 1985 were permitted in limited circumstances to transfer to the permanent establishment, but from 30th June 1992 they were not permitted to do even that. In due course, it was decided to permit overseas officers on agreement terms to transfer to local conditions of service. But the Civil Service Regulation permitting local officers on agreement terms to apply for transfer to the permanent establishment was not to apply to overseas officers on agreement terms who transferred to local conditions of service.

2. This prohibition on overseas officers on agreement terms who transferred to local conditions of service from transferring to the permanent establishment was declared unlawful in R. v. The Secretary for the Civil Service ex p. the A.E.C.S (1995) 5 HKPLR 490 ("the previous A.E.C.S. case") at p.539F. As a result, the Civil Service conducted a review of the arrangements relating to applications for transfer to the permanent establishment. By Civil Service Bureau Circular No. 16/97 dated 15th November 1997 ("the Circular"), the Secretary for the Civil Service announced the measures which would be taken in the light of that review. The principal measure was that all local officers on agreement terms - whether local officers on agreement terms or overseas officers on agreement terms who had transferred to local conditions of service - could apply for transfer to the permanent establishment. In this application for leave to apply for judicial review, the Association of Expatriate Civil Servants of Hong Kong ("the A.E.C.S.") seeks to challenge some of the features of this measure.

3. The Notice in Form 86A does not spell out the legal basis on which each feature of the measure is challenged. I have only been able to identify the grounds for challenging each feature of the measure from a skeleton argument submitted on behalf of the A.E.C.S. and from the oral submissions of Mr. Michael Scott, the Vice-President of the A.E.C.S.

Chinese language proficiency

4. One of the criteria to be taken into account in determining whether an application for transfer to the permanent establishment should be granted relates to the candidate's proficiency in the Chinese language. Art. 100 of the Basic Law entitles public servants in post on the establishment of the HKSAR to "remain in employment ... with ... conditions of service no less favourable than before". If prior to 1st July 1997 they should have been entitled to apply to join the permanent establishment without their proficiency in the Chinese language being taken into account, it is argued that that should also be the position now. Proficiency in Chinese was one of the criteria taken into account in determining whether an overseas officer on agreement terms would be permitted to transfer to local conditions of service. When the previous A.E.C.S. case went to the Court of Appeal (CA 260/95), that was declared to be unlawful: see p.31G of the transcript. If it was unlawful to make proficiency in Chinese a factor in determining applications for transfer to local conditions of service, it would have been equally unlawful to make such proficiency a factor in determining applications for transfer from local agreement terms to the permanent establishment.

5. In my view, this argument is sufficiently arguable to justify the grant of leave to apply for judicial review. Accordingly, I give the A.E.C.S. leave to apply for judicial review of this decision (which is described as decision 1 in the Notice in Form 86A).

6. The Circular also announced that some local officers on agreement terms would have their applications for transfer to the permanent establishment decided, not by reference to the criteria set out in the Circular, but by reference to the arrangements and criteria prevailing prior to 31st October 1995. The relevance of that date is that that was the date when judgment was handed down in the previous A.E.C.S. case, as a result of which the Secretary for the Civil Service announced the immediate suspension for the time being of all applications for transfer to the permanent establishment. Prior to that date, proficiency in Chinese was not a factor taken into account in the determination of applications for transfer to the permanent establishment. It is said that this exemption from the new criteria should not be limited to only some local officers on agreement terms. Accordingly, the A.E.C.S. seeks leave to apply for judicial review of the decision to exempt only some officers from the new criteria (which is described as decision 2 in the Notice in Form 86A).

7. I refuse to grant the A.E.C.S. leave to apply for judicial review of this decision. I see no basis for challenging it. In any event, the real relevance of the fact that proficiency in Chinese is something which is not taken into account in the case of some officers is as to whether the attack on decision 1 should succeed.

Qualifying service

8. The Circular announced that, to be eligible for transfer to the permanent establishment, officers on agreement terms have to be able to complete 5 years' service from the date of transfer before they reach normal retirement age. In addition, such officers are required to undertake that they will provide 5 years' service. These requirements were relaxed in respect of those officers who had not submitted their applications for transfer by 31st October 1995. They would be allowed to count their 5 years' service from a date earlier than their effective date of transfer.

9. It is said that, since the prohibition on overseas officers on agreement terms who transferred to local conditions of service from transferring to the permanent establishment was declared unlawful in the previous A.E.C.S. case, the 5 year period should apply from the date when they should have been able to transfer to the permanent establishment. That is said to be either the date when the Bill of Rights came into operation (because it was Art. 21(c) of the Bill of Rights which rendered the prohibition discriminatory and therefore unlawful) or when the officer concerned became a permanent resident of Hong Kong (because that was when he acquired the right of access to the Civil Service on general terms of equality accorded by Art. 21(c)), whichever was the later. Otherwise, contrary to Art. 100 of the Basic Law, such an officer will not be enjoying conditions of service as favourable as those which he should have enjoyed prior to 1st July 1997.

10. In my view, this argument is sufficiently arguable to justify the grant of leave to apply for judicial review. Accordingly, I give the A.E.C.S. leave to apply for judicial review of those decisions (which are described as decisions 4 and 5 in the Notice in Form 86A).

The opening-up scheme

11. The opening-up scheme applies to all officers on agreement terms (whether overseas or local) in promotion ranks whose agreements expired on or after 1st September 1995. The only exceptions are those overseas officers on agreement terms who were ineligible for transfer to local conditions of service, or who chose not to apply for transfer. Under the scheme, the incumbent officer and the officer one rank below competes for the post, and the most meritorious officer is appointed. If the incumbent officer is not appointed, his agreement will not be renewed on its expiry, and he will leave the Civil Service.

12. Local officers on agreement terms could avoid the opening up of their posts to competition by applying to join the permanent establishment. This escape route was not originally available to overseas officers on agreement terms, even those who had transferred to local conditions of service. In the previous A.E.C.S. case, this prohibition on overseas officers on agreement terms who had transferred to local conditions of service from applying to join the permanent establishment was declared unlawful at p.557F. The Circular puts that right by enabling such officers to apply to join the permanent establishment.

13. The A.E.C.S. claims that the Circular does not go far enough. Its case is that overseas officers on agreement terms should be entitled to apply to join the permanent establishment, without having first transferred to local conditions of service. The decision which the A.E.C.S. seeks to challenge, therefore, is the requirement in the Circular that access to the permanent establishment is only open to local officers on agreement terms.

14. The primary basis of this claim is that it was decided in the previous A.E.C.S. case that that too was unlawful. Mr. Scott relies on para. 4 of the order made by consent on 22nd December 1995, by which it was ordered and declared that the decision of the Secretary for the Civil Service to allow "only local officers on agreement terms" to transfer to the permanent establishment was and is unlawful. I cannot accept that argument. The reference to "local officers on agreement terms" in the order of 22nd December 1995 was a reference only to those local officers on agreement terms who had not been overseas officers on agreement terms who had transferred to local conditions of service. As I have said, what was held to be unlawful was the prohibition on overseas officers on agreement terms who had transferred to local conditions of service from applying to join the permanent establishment.

15. In the light of that, Mr. Scott deployed an alternative argument - which was that to deny overseas officers on agreement terms the right to apply to join the permanent establishment, without having first transferred to local conditions of service, was unlawful as being contrary to Art. 21(c), because their right to access to the permanent establishment was not being enjoyed on general terms of equality with local officers on agreement terms. That prohibition, as I have said, has applied to most overseas officers since 28th March 1985, and to all overseas officers since 30th June 1992. It could therefore have been challenged in the previous A.E.C.S. case. It is not open to the A.E.C.S. to challenge that prohibition now - simply by saying that the prohibition is reproduced in the Circular. What the A.E.C.S. is really challenging is a prohibition which has been in operation for many years. I am not prepared, in view of the opportunity to challenge the prohibition in the previous A.E.C.S. case which the A.E.C.S. did not take up, to extend the period within which the application to challenge this prohibition should have been made.

16. For these reasons, therefore, I refuse to grant the A.E.C.S. leave to apply for judicial review of the decision described as decision 3 in the Notice in Form 86A.

Conclusion

17. These, then, are my reasons in brief for giving the A.E.C.S. leave to apply for judicial review of the decisions described as decisions 1, 4 and 5 in the Notice in Form 86A, but for refusing leave in respect of the decisions described as decisions 2 and 3. I should add that there are many references in the Notice in Form 86A which I doubt are relevant - for example, the references to provisions in the Basic Law apart from Art. 100. However, this is not a case in which I propose to limit the grounds on which the A.E.C.S. can apply for judicial review of decisions 1, 4 and 5, and I direct that they can rely on such grounds as can be said to appear in the Notice in Form 86A. Equally, I am not convinced about the appropriateness of some of the relief sought, but I do not think that it would be right in this particular case to rule at the leave stage that particular forms of relief should not be available to the A.E.C.S.

18. Finally, I have referred in this judgment to whether a particular point is arguable. That is a form of shorthand. The test which I have applied is the one laid down by Godfrey J. (as he then was) in the Court of Appeal in R. v. Director of Immigration ex p. Ho Ming Sai (1993) 3 HKPLR 157 at p.170:

"Does the material before me disclose what might on further consideration turn out to be an arguable case?"