林進傑 v. OMBUDSMAN

[English Translation– 英譯本]

CACV 473/2022, [2023] HKCA 1275

On Appeal From [2022] HKCFI 3469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 473 OF 2022

(ON APPEAL FROM CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1169 OF 2022)

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JUDGMENT

Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  The applicant lodges the present appeal against the decision of Hon Coleman J (“trial judge”) dated 23 November 2022, which refused leave to apply for judicial review.

2.  The only issue in this appeal is about the interpretation of paragraph 5(b) of Schedule 2 of the Ombudsman Ordinance (“Ordinance”), Cap 397 of the Laws of Hong Kong.

Factual Background

3.  On 22 August 2022, the applicant complained to the putative respondent (“Ombudsman”) that “it is unreasonable for the Education Bureau to delay in releasing information on the new daily rates of pay for supply teachers”. The applicant said that the new school year was right around the corner, but the Education Bureau had not yet announced the daily rates of pay for supply teachers in aided schools starting from 1 September 2022. He wrote an enquiry email to the Education Bureau on 20 August but had yet to receive a reply.

4.  On 6 September 2022, the Ombudsman replied to the applicant, indicating that under section 8 and Schedule 2 of the Ordinance, his complaint involved an action not subject to investigation by the Ombudsman and was outside the Ombudsman’s jurisdiction.

5.  On 14 September 2022, the applicant wrote to the Ombudsman saying that it was an erroneous construction of the Ordinance and requested a re-assessment of his complaint.

6.  On 10 October 2022, the Ombudsman replied to the applicant, reiterating that it is outside their jurisdiction to handle the complaint based on the provisions of the Ordinance.

7.  On 31 October 2022, the applicant filed a Form 86 and an affidavit with the Court of First Instance to apply for leave for judicial review of the Ombudsman’s decision dated 6 September 2022, which refused to handle his complaint.

8.  On 23 November 2022, the trial judge refused to grant leave to apply for judicial review[1].

Ombudsman’s Reason for Refusal to Handle the Complaint

9.  By letter dated 6 September 2022, the Ombudsman gave the following explanation for refusal to handle the applicant’s complaint:

“Section 8 and Schedule 2 of the Ordinance provide that any action taken in respect of appointments or removals, pay, conditions of service, discipline, pension, superannuation or other personnel matters, in relation to service in any office or employment under the Government or under any organization is not subject to investigation by the Ombudsman. Your complaint pertains to the pay for supply teachers in aided schools. It is outside our jurisdiction to handle the complaint based on the aforesaid provisions.”

10.  By letter dated 14 September 2022, the applicant rebutted that the relevant supply teachers and personnel were employed by aided schools and were not employees of the Government or any organization.

11.  By letter dated 10 October 2022, the Ombudsman replied as follows:

“The administration of aided schools is subject to regulation under ‘the Code of Aid for Aided Schools’, the related legislations, circulars, instructions and guidelines issued by the Education Bureau. The adjustment of the daily rates of pay for supply teachers falls within pay matters; and it is an action taken by the Education Bureau (namely one of the organizations specified in Schedule 1) in exercise of the powers vested in it. This is also the reason why you have lodged a complaint against the Bureau.”

Reason for Decision of the Trial Judge

12.  The applicant’s ground of the application for leave to apply for judicial review: “The Ombudsman has erroneously construed section 8 and Schedule 2 of the Ombudsman Ordinance”.

13.  The trial judge dealt with the application on paper. In his Decision, the trial judge pointed out that under paragraph 5(b) of Schedule 2 of the Ordinance, complaints not subject to investigation by the Ombudsman cover those pertaining to a power exercised relating to pay matters by the organisations specified in Schedule 1. The trial judge also took the view that the Education Bureau was exercising its powers in respect of determining the daily rates of pay for supply teachers. Therefore, it is covered in paragraph 5(b). The trial judge found that the applicant’s intended judicial review had no reasonable prospect of success, and dismissed his leave application with no order as to costs.

Applicant’s Grounds of Appeal

14.  Two grounds of appeal are set out in the applicant’s notice of appeal: first, it is stated that the trial judge has erroneously taken the view that the Education Bureau has the power to determine the daily rates of pay for supply teachers (“Ground 1 of the appeal”); second, it is stated that the trial judge has misinterpreted paragraph 5(b) of Schedule 2 of the Ordinance (“Ground 2 of the appeal”).

Applicable Law

15.  The explicit legal principle is that the test adopted by the court to determine whether to grant leave for judicial review is: the application in question must be reasonably arguable and must have a realistic prospect of success. See Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

16.  The provisions in the Ordinance relating to the present case include:

(1)  Section 8 which provides for actions or matters which the Ombudsman cannot investigate:

“The Ombudsman shall not undertake or continue any investigation that relates to any action or matter specified in Schedule 2.”

(2)  Schedule 2 which sets out the actions not subject to investigation, of which paragraph 5 provides:

“Any action taken in respect of appointments or removals, pay, conditions of service, discipline, pension, superannuation or other personnel matters, in relation to ——

(a) service in any office or employment under the Government or under any organization; or

(b) service in any office, or under any contract for services, in respect of which power to take action, or to determine or approve the action to be taken, in such matters is vested in the Chief Executive or any organization.”

(3)  For the construction of the term “organization”, section 2(1) and 2(2) provides as follows:

“(1) In this Ordinance, unless the context otherwise requires —

…

‘Organization’ means an organization specified in Schedule 1.”

“(2) Any reference in this Ordinance to an organization includes a reference to the officers of that organization.”

(4)  Schedule 1 sets out the organizations to which the Ordinance applies, which include the Government Secretariat.

Reasons for Judgement of this Court

17.  Regarding Ground 1 of the appeal, the applicant’s main contention is that the daily rates of pay for supply teachers are determined by the Permanent Secretary for Education rather than the Education Bureau. At the appeal hearing, the applicant expressed that he would not rely on this ground of appeal. In any event, based on the interpretation of the term “organization” in section 2(2) of the Ordinance, even if the daily rates of pay for supply teachers were determined by the Permanent Secretary for Education, it would not affect the correctness of the decision of the trial judge. This ground of appeal must fail.

18.  As to Ground 2 of the appeal, the crux of the argument is over how the term “organization” in paragraph 5(b) of Schedule 2 should be construed; whether it covers the Education Bureau as pointed out by the Ombudsman. The contention of the applicant is that in the context of paragraphs 5(a) and (b) of Schedule 2, the term “any organization” does not include government departments so that it is not necessary to consider the definition of the term “organization” in section 2(1) of the Ordinance. The contention of the applicant can be summarised as follows:

(1)  The interpretation of the term “organization” in section 2(1) of the Ordinance is not applicable to the context otherwise requires;

(2)  The organizations sets out in Schedule 1 are government departments and statutory bodies, both of which have their own characteristics and uniqueness. Generally speaking, organizations do not include government departments. Therefore, whether the term “organization” includes government departments is subject to the context of paragraph 5(b) of Schedule 2;

(3)  Paragraph 5(a) of Schedule 2 mentions “Government” and “any organization” simultaneously. It is obvious that Government is excluded from the definition of “any organization”. Otherwise, the term “Government” alone will suffice without the need to distinguish “Government” from “any organization”; and

(4)  The scope and the conditions that paragraph 5(b) covers are more extensive than those of paragraph 5(a). Thus the existence of paragraph 5(a) reflects that the original legislative intent is to first exclude the meaning of “Government” from “any organization” in paragraph 5(a) and then use “Chief Executive” in paragraph 5(b) to represent the personnel working in the Government, and to retain the meaning of “any organization” in paragraph 5(a).

19.  The basic starting point for statutory interpretation must be the text itself. Section 2(1) and (2) of the Ordinance expressly stipulates the definition of the term “organization”, which is applicable to all provisions in the Ordinance, including paragraph 5(b) of Schedule 2.

20.  This Court disagrees with the applicant’s point that the context in paragraph 5(b) (or paragraph 5(a)) makes the definition of “organization” under section 2(1) and (2) inapplicable. First, the Government is clearly different from the organizations specified in Schedule 1. Second, the latter covers more than government departments and statutory bodies, for instance the registries and administrative offices of the law courts and tribunals are neither government departments nor statutory bodies. Therefore, using the term “Government” alone is not sufficient to cover the organizations specified in Schedule 1, and thus “Government” and “organization” need to be used simultaneously in section 5(a). The applicant’s argument that the simultaneous references to “Government” and “any organization” in paragraph 5(a) was to exclude the Government from the definition of “any organization” is therefore untenable. Similarly, the applicant’s assertion that the term “any organization” in section 5(b) excludes the Government is also unfounded.

21.  In our view, paragraph 5 of Schedule 2 aims to explain the two conditions under which the Ombudsman shall not undertake any investigation relating to any action in respect of appointments or removals, pay, conditions of service, discipline, pension, superannuation or other personnel matters. One of them relates to service in any office or employment under the Government or under any organization; and the other one relates to service in any office, or under any contract for services but such an action taken or decided or approved to be taken must be vested in the Chief Executive or any organization. None of the express text, the meaning and the context of paragraph 5 indicates that the definition of “organization” under section 2(1) is inapplicable.

22.  This Court is of the view that the term “any organization” in paragraph 5(b) of Schedule 2 refers to the organizations specified in Schedule 1, which include the Government Secretariat. By virtue of judicial notice, this Court accepts the Ombudsman’s submission that the Education Bureau is one of the policy bureaux under the Government Secretariat. In light of the fact that the determination of the daily rates of pay for supply teachers of aided schools is an action taken by the Education Bureau in exercising its functions, the Ombudsman does not have the power to handle the applicant’s complaint under paragraph 5(b) of Schedule 2. Therefore, Ground 2 of the appeal fails.

23.  Based on the aforesaid reasons, the applicant’s grounds of appeal fail. There is also no reasonable prospect of success for his intended application for leave for judicial review. His appeal is dismissed.

Costs

24.  According to the usual practice, the applicant who fails in the appeal shall pay the costs of the Ombudsman. There is no exception to this appeal. However, it is unnecessary to tax the written submissions filed and served by the legal representative of the Ombudsman on 13 July 2023. On a “party and party basis”, the applicant shall not bear the costs for the written submissions.

25.  This Court orders that the applicant pay the above costs of the putative respondent to the appeal (excluding the costs for the written submissions of the putative respondent dated 13 July 2023). The quantum shall be assessed summarily. This Court also directs that: (1) the putative respondent do file and serve a bill of costs within 14 days from the date of this judgment; and (2) the applicant may file and serve a notice of objections (if any) to the items and the quantum of the bill within 14 days afterwards. This Court will make a subsequent assessment in writing.

Translated by the Court Language Section of the Judiciary and vetted by Mr Chow Wai Shun, Solicitor.