ASSOCIATION OF EXPATRIATE CIVIL SERVANTS OF HONG KONG v. SECRETARY FOR THE CIVIL SERVICE AND ANOTHER

FAMV No. 4 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4 OF 1998 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 260 OF 1995)

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D E T E R M I N A T I O N

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Mr Justice Bokhary, PJ:

1. This is the determination of the Appeal Committee in this application for leave to appeal to the Court of Final Appeal.

2. The judgment from which the applicant wishes to appeal is interlocutory. And the applicant seeks leave to appeal upon its contention that the proposed final appeal would involve questions of law which, by reason of their great general or public importance, ought to be submitted to the Court of Final Appeal for decision.

3. For some time now the applicant association has been pursuing in the courts relief by way of judicial review of a number of steps taken by the Government pursuant to its policy for the localisation of the Civil Service. The applicant's efforts have met with considerable, although by no means total, success. It now seeks leave to appeal to the Court of Final Appeal from a judgment of the Court of Appeal given on 28 November 1997 dismissing with costs two notices of motion which it had taken out before that Court.

4. One of those notices of motion was taken out on 31 October 1997. It asked the Court of Appeal to recall a part of the judgment which it had given on 22 November 1996 in an appeal from a judgment of Keith J given on 31 October 1995. That part of the Court of Appeal's judgment upheld the judge's refusal to declare unlawful the administrative decision introducing a scheme called "the Opening-up Scheme", about which we will say a word of explanation in a moment.

5. The second of those two notices of motion was taken out on 27 November 1997. It sought leave to adduce fresh evidence in support of the first notice of motion.

6. After the Court of Appeal had on 28 November 1997 dismissed both of those notices of motion, the applicant asked that Court for leave to appeal to the Court of Final Appeal against such dismissal. The Court of Appeal refused such leave on 13 January 1998, doing so with costs against the applicant.

7. And now the applicant is before this Committee seeking such leave at our hands.

8. The Opening-up Scheme was brought about by a decision made on 19 December 1994 by the then Secretary for the Civil Service. That decision concerned civil servants on agreement terms as opposed to permanent and pensionable terms. Let us call them "agreement officers". The effect of the decision was as follows. When any agreement officer (whether on overseas terms or on local terms) whose agreement expires on or after 1 September 1995 seeks an extension, his position would be "opened up for competition". And he "should leave the service upon the expiry of his current agreement" if he loses such competition.

9. In the proceedings before Keith J in the autumn of 1995, the applicant asked the judge to declare that the decision to introduce the Opening-up Scheme was unlawful.

10. The applicant contended that the scheme was a pretext. Its true aim, the applicant alleged, was to ease expatriates out of the Civil Service irrespective of merit. In answer, the 1st respondent filed affidavit evidence from Mr CIC Jackson, the Deputy Secretary for the Civil Service. Mr Jackson said that the Opening-up Scheme "is based on a set of objective criteria applicable to all officers who enter the competition". The scheme, Mr Jackson continued, "ensures a greater emphasis on objectively tested merit". And its aim, he said, "is to select the best person for the job."

11. The applicant did not accept that. Its argument before Keith J in regard to the Opening-up Scheme as a whole was, as the judge summarised that argument, as follows:

"...this justification for the introduction of the scheme is a pretext. The true reason for the introduction of the scheme was to make those overseas officers on agreement terms who transfer to terms modelled on local conditions of service more vulnerable to replacement by local officers. The device used to achieve that end was a subtle but effective one. The long-standing prohibition on overseas officers on agreement terms applying to transfer to the permanent establishment was to apply to those overseas officers on agreement terms who had transferred to terms modelled on local conditions of service. Local officers on agreement terms could avoid the opening-up of their posts to competition simply by applying to join the permanent establishment, whereas that escape route was not available to overseas officers on agreement terms who had transferred to terms modelled on local conditions of service."

But no application was made to the judge for cross-examination of Mr Jackson on anything he had said on affidavit.

12. In those circumstances, Keith J refused to brand the whole of the scheme as a pretext and condemn it root and branch. He chose instead to look at various features of the scheme's implementation as embodied in other decisions and to consider whether those decisions were lawful or unlawful.

13. Before Keith J the applicant succeeded in regard to some of those other decisions. And before the Court of Appeal it achieved considerable further success in regard to several more of those other decisions. But the judge's refusal to condemn the Opening-up Scheme itself as an unlawful pretext was upheld by the Court of Appeal. And no appeal was pursued by either side against any part of the Court of Appeal's judgment of 22 November 1996.

14. As for what is presently involved, it is convenient to turn to the Court of Appeal's judgment of 28 November 1997 (from which leave to bring an appeal is now sought) and examine what Mortimer VP said (with the concurrence of Power VP and Sears J).

15. Mortimer, V.-P. set the scene by saying this:

"The appellant says that it is clear upon further evidence which is now available, the judgment at first instance - a judgment handed down by Keith J on 31 October 1995 - was obtained by fraud. In the sense that the opening up scheme upon which the appellant had lost at first instance and on appeal - was a scheme which, although it was said was simply to ensure that the best officer should fulfil the post, was in fact a sham. The reason behind the scheme was to localise those posts.

At first instance, the appellant's case failed in limine because the civil servants concerned particularly with the scheme and who had submitted affidavit evidence were not required to attend by the appellant for cross-examination. The consequence was that the judge did not feel able - one would think rightly - to make findings against the respondents in the absence of such cross-examination. The appellant's appeal failed basically on the same point. There was an application to the Court of Appeal for further evidence but this Court rejected that application because there had been no cross-examination below. That application failed but the appellant still pursues this matter in the second Notice applying to adduce further evidence again."

16. After saying that, Mortimer VP dealt with various matters including the fact that the Court of Appeal's judgment of 22 November 1996 had not yet been formally perfected. And he then continued:

"The key to the application is said to be a statement by the government officer on the effect of the judgment given by this Court on 23 December 1996. Mr Scott says this amounts to an admission of fraud. The main point he makes is that under the heading 'Impact of the Judgment' and the subheading 'The Localisation Policy', there appears the sentence

'Third, it has upheld the opening up arrangements currently in place for renewal of agreements on local terms, a mechanism which requires officers to compete for further employment on the principle of 'best person for the job'.'

Because that reference to the 'opening up scheme' appears under the heading of 'The Localisation Policy' it is said - to use a colloquial phrase - that let the cat out of the bag; that it was the intent of the government all along to further the localisation policy.

Mr Scott had put in front of the Court many other documents but that is the key."

17. Next, Mortimer VP turned to whether it would be possible for the Court of Appeal to do what Mr Scott submitted that it could and should do. That was to look at those documents and conclude from them: that the Opening-up Scheme was a pretext; and that Keith J's refusal so to find had been obtained by a fraud practised upon him.

18. Mortimer VP, with whom the other members of the Court of Appeal agreed, took the view that that course was impossible in the circumstances. That is the only view with which we are concerned. We are not concerned with Mortimer VP's obiter observations, apparently made without the benefit of full argument on the point, to the effect that fresh proceedings to set aside the judgment may be possible. We are not to be taken as endorsing those observations whether in regard to the availability of such proceedings in general or in regard to the viability of the applicant's case in particular.

19. The applicant contends that the final appeal which it wishes to bring would involve six questions of law of great general or public importance calling for resolution by the Court of Final Appeal. Quoting from the applicant's notice of motion for such leave, those six questions are:

1. "Did the Court of Appeal exercise its discretion upon a wrong principle in holding that -

'Where fraud is alleged, perhaps it is even more difficult for an applicant to reopen a case such as this',

thereby requiring a higher standard of proof than the existing law and practice requires?"

2. "Did the Court of Appeal exercise its discretion upon a wrong principle in holding too stringently that 'the point was' that the successful party ought to, save in most exceptional circumstances, be able to assume that the judgment is a valid and effective one, thereby giving no weight, or no sufficient weight, to the relevant consideration requiring the court to retain its power to protect both parties against injustice which may arise from a prima facie case of fraud or deception - or, alternatively or additionally - from failure to comply with an obligation to disclose?"

3. "Did the Court of Appeal exercise its discretion upon a wrong principle in holding that -

'It would, of course, be quite impossible to reach a concluded decision on bona fides or fraud from such a document - and other documents which may be inconsistent - without hearing oral evidence from the people concerned if they wish to appear and give an explanation',

thereby requiring a higher standard of proof for admitting fresh evidence and recalling its judgment than the existing law and practice requires?"

4. "Did the Court of Appeal exercise its discretion upon a wrong principle in failing in its judgment: to address the items of evidence individually and cumulatively in comparison with the 1st Respondent's testimony, to make a finding as to whether or not a strong prima facie case of fraud was disclosed, and to give full reasons for such finding?"

5. "Does the judgment from which leave to appeal is sought give reason for the Court of Final Appeal to intervene to resolve inconsistency of decision in the Court of Appeal?"

6. "Did the Court of Appeal exercise its discretion upon a wrong principle in ordering that costs should follow the event in respect of the Applicant's attempts to date to reopen the appeal?"

The applicant's case is that each of those questions should receive an affirmative answer.

20. As far as the first five questions are concerned, the short and immediate answer to all of them is simply this. Whatever threshold one sets and whatever approach one adopts, the Court of Appeal was plainly entitled to take the view, which it did, that it could not conclude from the documents in question: that the Opening-up Scheme was a pretext; and that the Government had evaded a finding to that effect by means of false evidence to which subsequently available material had given the lie. Accordingly we need not address what might be the consequences in law if that conclusion were to be drawn.

21. As for the sixth question, it is plain that, the applicant having pursued an inappropriate course, the Court of Appeal was acting within the four corners of its discretion when making the order as to costs which it made.

22. There is no proper foundation for granting leave to appeal to the Court of Final Appeal. That is so even as things stood when the applicant's notices of motions of 31 October 1997 and 27 November 1997 respectively were being considered by the Court of Appeal. It is unnecessary therefore to deal with the respondents' point that the proposed final appeal would in any event be academic for the reason that, after the Court of Appeal dismissed those two notices of motion on 28 November 1997, that Court's judgment of 22 November 1996 was formally perfected. Leave to appeal to the Court of Final Appeal is refused. What remains for argument and order is the matter of the costs of this leave application.