CHENG HO KEE AND OTHERS v. SECRETARY FOR JUSTICE

FACV No. 30 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 30 OF 2005 (CIVIL)

(ON APPEAL FROM CACV NO. 54 OF 2004)

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Chief Justice Li:

1. The Correctional Services Department (“the CSD”), which operates penal institutions, is an essential disciplined service.  The appellants are officers or former officers of the CSD.  The issue in this appeal is whether, apart from a special allowance, they are contractually entitled to recompense for the performance of what is known as “overnight on call duty” or simply as “overnight on call”.

The relevant CSRs

2.  This appeal turns on the proper interpretation of the relevant Civil Service Regulations (“CSRs”) in the context of the facts.  The relevant Regulations, namely CSRs 668 and 669, provide as follows:

“668.    An eligible officer who is required to stand-by at his place of work beyond his conditioned hours may be paid an overtime allowance, but at a reduced rate.  An officer provided with quarters at or near his place of work is not eligible under this regulation.

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.”

CSRs 668 and 669 are of contractual force.  They have been taken from the 1985 version.  References to other CSRs in this judgment are also taken from that version.  Subsequent changes to the relevant CSRs are not material for present purposes.

3.  CSRs are of general application to the civil service.  This appeal is only concerned with the interpretation of CSRs 668 and 669 in relation to the performance of “overnight on call” in the CSD.  Performance of this duty imposes a burden on the officers concerned.  This form of duty is unique to the CSD arising from its operational needs.  Its performance contributes to the security of the penal institutions.

The question

4.  CSRs 668 and 669 both relate to periods which are beyond the officer’s “conditioned hours”[1].  It is accepted by the respondent, the Government, that CSD officers perform “overnight on call” during times which are beyond their conditioned hours.  The question is whether the performance of “overnight on call” is within CSR 668 or 669.  The appellants contend that in performing “overnight on call”, an officer is “required to stand-by at his place of work” within CSR 668 so that an overtime allowance is payable at a reduced rate.  The Government submits that the performance of “overnight on call” is outside CSR 668.  It maintains that where an officer is performing “overnight on call”, he is required to be “on call” at a fixed location within CSR 669 which provides that the period is not regarded as overtime and is not subject to any recompense.  It has not been suggested that the performance of “overnight on call” is outside both CSRs 668 and 669.

The courts below

5.  The judge (Hartmann J) rejected the appellants’ claim.  He also held that in any event, the appellants’ claims relating to the period before 27 October 1993, that is, six years before the issue of the writ, was time-barred.  The Court of Appeal (Woo VP, Stock and Tang JJA) dismissed their appeal.  The appellants did not appeal the judge’s conclusion on the limitation issue.

The facts

6.  The trial before the judge took 21 days and two days of site visits.  The facts are comprehensively set out in his judgement which has been of invaluable assistance to the Court.  The following summary of the facts is taken from the judgment.

Operational need

7.  At night, the number of CSD officers on duty within penal institutions is materially reduced.  In some instances, the reduction is by as much as 75%.  There has always been the operational need to have a reserve of officers staying close by in order to reinforce those on duty within the institutions where necessary at very short notice.  Unforeseen events requiring such re-inforcement include successful or attempted escapes, large scale fights, hostage taking and suicides or attempted suicides.

When performed

8.  The majority of penal institutions are manned according to a four shift system with two days shifts (from 06:45 to 13:45 and 13:15 to 20:15) and two night shifts (from 18:45 to 01:45 and 01:15 to 08:15).  Officers completing the second day shift ending at 20:15 are required to perform “overnight on call”.  They have to remain in an area in the immediate vicinity of the institution and are “on call” in case they are required for active duty.  If called, they must be ready in uniform at the main gate of the institution within a short time, the norm being 15 minutes.  If they are called for active duty, they are paid overtime for the period spent on active duty.  In the morning, officers who have performed “overnight on call” must report for the first day shift starting at 06:45.  At the end of that shift at 13:45, they are off duty for 24 hours.

Area in the immediate vicinity

9.  The area in the immediate vicinity of the penal institution concerned (“the area”), where officers performing “overnight on call” are required to remain, is, subject to very few exceptions, under the management of the CSD.  It is a restricted area in the sense that the public are not allowed unrestricted access to it.  The area is within close proximity of the institution concerned but is outside its security walls or fences.

Facilities and activities

10.  The area does not contain any facilities for prisoners or offices for CSD staff.  Situated within the area are facilities for CSD staff.  These include accommodation, club and mess facilities, sporting venues and facilities such as parking areas, gardens and pathways.  Officers performing “overnight on call” occupy different types of overnight accommodation within the area depending on their rank.  The facilities within the area in the immediate vicinity vary as between penal institutions.  Of the five institutions the judge visited, at one end, the facilities are rustic and spartan.  At the other end, the club facilities would grace many private clubs, including karaoke facilities in a quasi nightclub setting, restaurants, swimming pool, squash court and fitness room.

11.  Historically, CSD officers had to “live by the job”.  They had to live in quarters in the immediate vicinity of the penal institution to which they were posted.  Over time, this requirement was relaxed.  It was obviously inconvenient for officers and their families to have to move quarters with every change in posting.  So, officers could remain in quarters in the immediate vicinity of one institution after they have been posted to another institution.  Having regard to the operational need to have a reserve of officers close by the penal institutions at night, the areas in their immediate vicinity under CSD management were developed.

12.  Officers performing “overnight on call” have to stay in the area in the immediate vicinity managed by the CSD.  They may enjoy all the facilities there.  They may receive family and friends there.  And they may leave the area for shopping, subject to the discretion of their supervisor and provided that they can report for active duty within the required time.  However, receiving visitors and leaving for shopping are not practically feasible in the case of most penal institutions having regard to their relatively isolated location.

13.  While performing “overnight on call”, the officers do not have to remain in uniform.  They are not directed in any way as to how they may employ their time.  The judge found:

“While they must, absent permission to the contrary, remain in the immediate vicinity, they may therefore engage in activities which the CSD cannot (and does not) control.  In short, they are left to their own devices.”

14.  There are quarters, that is homes, in the area in the immediate vicinity of some penal institutions.  Where an officer has his home in the immediate vicinity of the penal institution concerned, he may return home when performing “overnight on call”.  No claims for recompense have been made in this case for the performance of “overnight on call” at home.  The plaintiffs’ claims all relate to the performance of “overnight on call” at the area in the immediate vicinity away from their homes.

15.  On his site visits to five penal institutions, the judge found a manifest distinction between the activities and facilities within the security walls or fences of the penal institutions and those in the immediate vicinity outside them.  He found that it is within the penal institutions that the essential place of work of CSD officers is to be found.  As to the area in the immediate vicinity, the judge was struck by the fact that:

“they retained a fundamentally residential and recreational atmosphere and were, for all practical purposes, exclusively used for those purposes.”

He held:

“In summary, despite some marked variation in the quality of the facilities from one to another, I was, on the evidence, satisfied that the immediate vicinities of Hong Kong’s penal institutions have at all times, as their history has shown, been intended for and used as residential and recreational areas.  I do not see how, in any general sense, they can be described as places of work.  I make that observation, of course, subject to the proviso that factually, if they are used as places of work, that will change their nature.”

Special allowance

16.  Since 1 February 1989, CSD officers have received a special allowance for performing “overnight on call” in the area in the immediate vicinity of the penal institution concerned away from their homes.  The Government accepts that the officers are contractually entitled to the special allowance.  The current rate is $123 per night.  Following its approval by the Finance Committee of the Legislative Council, the special allowance was introduced by CSB Circular No. 3/89 and further explained in the Circular Memorandum dated 1 February 1989 of the Commissioner of Correctional Services.

“Sleep-in, stand-by”

17.  Performing “overnight on call” is to be contrasted with the performance of “sleep-in, stand-by” for which officers receive a reduced overtime allowance.  The latter form of duty is performed only at maximum security institutions and Victoria Prison.  It was introduced as a result of the rioting in Stanley Prison in 1973.  This incident demonstrated that at maximum security prisons, security could not be assured at night by relying solely on “overnight on call” officers who could take up to 15 minutes to arrive at the main gate.  What was required was a group of officers stationed inside the security walls or fences of the prison concerned who would be on “stand-by” and therefore immediately available not simply to report for duty but to actually commence duty. 

18.  Compared to officers performing “overnight on call”, officers performing “sleep-in, stand-by” are subject to far more rigorous restraints: having to formally parade on and off duty in uniform within the walls of the prison; being confined to their stand-by quarters within the walls of the prison concerned; having little opportunity for recreation or entertainment; not being able to receive visitors; being restricted in the nature of foodstuffs, beverages and entertainment material they may bring with them as they are within the walls of the prison.

CSD pay and conditions

19.  Pay and conditions in the civil service are determined by the Government on the advice of various bodies.  Having regard to their duties and responsibilities, the disciplined services have been treated as a separate group within the civil service for the purpose of review of pay and conditions.  In respect of the disciplined services, the judge found that the principles that have been adhered to over the years are that the salary scales for each service are based on the assumption that any unusual or special features in the hours of work to be undertaken are part of the requirements of the service concerned and these are taken into account in the salary scales.  And that whatever overtime officers work on a regular basis is part of the exigencies of the disciplined service concerned and is allowed for in the “pay for the job”.

20.  The judge found that the practical consequence of the adoption of these principles is that CSD officers joining the service have enjoyed a markedly higher rate of pay by way of salary than that awarded to persons of similar qualification joining a civilian branch of the public service.  As the Deputy Secretary for the Civil Service explained in evidence:

“Correctional Services staff are remunerated on the General Disciplined Services Pay Scale which provides higher pay levels than that given to civilian ranks on the Master Pay Scale with similar education qualification.  For instance, the current entry pay for the basic rank of Officer in CSD ($26,075) is 52% higher than that of an Executive Officer II ($17,100) for degree holders.  The entry pay for an Assistant Officer II ($13,710) is 49% higher than that of an Assistant Clerical Officer ($9,180) with same educational qualifications.  The pay differential is attributable to the fact that members of the Disciplined Services are subject to stricter conditions of work governed by the operational needs of their respective departments and other factors which are particular to the Disciplined Services such as stress, hardship, danger, discipline, hours of work, shift patterns, unpredictable calls upon staff time, restriction on personal freedom and social segregation.”

Interpretation

21.  CSRs 668 and 669 are in a section in the CSRs concerned with overtime.  CSR 665 defines “overtime” as work undertaken over and beyond an officer’s conditioned hours.  CSR 667 provides that the normal recompense for overtime is time off in lieu and where this is or is likely to be impracticable within one month, an overtime allowance may be paid to eligible officers.  CSRs 668 and 669 are both provisions dealing with situations where the officer is not on active duty.

22.  Under CSR 668, where an eligible officer is required to stand-by at his place of work beyond his conditioned hours, he may be paid a reduced overtime allowance.  So, although the officer is not on active duty, and is only standing by at his place of work, an overtime allowance is payable to him, although at a reduced rate.  In contrast, under CSR 669 where the officer is required to be on call beyond his conditioned hours at, say a fixed location, so that he is continuously and immediately available to report for duty if required, the period in question is not regarded as overtime and is not subject to any recompense.

CSR 668

23.  In the present case, it has not been suggested that there is any difference between the state of “stand-by” in CSR 668 and that of “on call” in CSR 669 and it will be assumed (without deciding the matter) that there is no difference.  In performing “overnight on call”, officers are required by the CSD to remain in the area managed by it in the immediate vicinity of the penal institution concerned.  The crux of the matter is whether that area is the “place of work” of the officers concerned within CSR 668.  The argument of Mr McCoy SC for the appellants that the area is their “place of work” is a simple one.  He submits that any place where the officers are required by the CSD to remain when on call would necessarily be or become their place of work within CSR 668.

24.  This argument must be rejected.  It deprives the words “at his place of work” of all meaning.  They are plainly words of limitation.  It is not enough that the officer is required to stand by: he must be required to stand by at his place of work.  If any place where he is required to stand by is or becomes his place of work within the meaning of CSR 668, then the officer qualifies if he is required to stand by wherever he is required to stand by. 

25.  Whether a place is a place of work of the officers concerned is essentially a question of fact.  Plainly, the area in the immediate vicinity is not their place of work.  It is an area with residential and recreational facilities for their use whilst performing “overnight on call” when they do not have to remain in uniform and are left to “their own devices”.  They are not at their place of work.  Their essential place of work is the penal institution concerned.  When performing “overnight on call”, the officers are outside it but in the area in its immediate vicinity in case they are required for duty at the institution.  When summoned, they must proceed to and arrive at the institution in uniform within 15 minutes so that they may commence active duty as directed.  They would have proceeded to their place of work from a place outside it.  The requirement of the CSD that officers remain in the area cannot have the effect of transforming the area into their place of work when it is not.

26.  What is contemplated by CSR 668 is that the officers concerned are standing by at their very place of work.  When required, they are already present in their place of work to actually commence active duty there.  They do not have to proceed to their place of work.  Officers performing “sleep-in, stand-by” within the prisons concerned would be standing by at their place of work as contemplated by CSR 668.

27.  Since the area in the immediate vicinity of the penal institution concerned is not a place of work of the officers concerned, they were not standing by at their place of work when performing “overnight on call” within CSR 668.  Accordingly, the reduced overtime allowance provided for in that regulation is not payable to them.

CSR 669

28.  The question whether the period when officers are performing “overnight on call” is within CSR 669 will now be considered.  If it is, the period “is not regarded as overtime and is not subject to any recompense”.

29.  Mr McCoy SC for the appellants submits that CSR 669 contemplates that the officer “on call” has complete freedom of movement so long as he is “contactable” and he can choose from the three options laid down in the regulation, that is, to be on call at home, in another fixed location or through the medium of a paging device.  It is argued that, since the officer concerned does not have that freedom and that choice, and is restricted to the area, the period of “overnight on call” is not within CSR 669.  In maintaining this argument, Mr McCoy SC relies on the decision of Findlay J in Shau Lin Chi v Secretary for Justice [1998] 4 HKC 562.  On the other hand, Mr Fok SC for the Government submits that CSR 669 plainly means that it is the Government which can require the officer to be on call at home, in another fixed location or through the medium of a paging device.  In the case of “overnight on call”, the Government requires the officer to be on call in a fixed location.

30.  The purpose of CSR 669 is that the officer required to be “on call” would be continuously and immediately available to report for duty if required.  This purpose is of course to serve the operational needs of the relevant department of the Government as employer.

31.  The phrase “required to be on call” is placed before the passage providing for the three options: “either at home or in another fixed location or through the medium of a paging device”.  As the Court of Appeal had correctly decided in Shau Lin Chi v Secretary for Justice [1999] 2 HKC 585, in the context of CSR 669, “another fixed location”  cannot include an officer’s place of work.  Having regard to its purpose, the proper interpretation of CSR 669 is that the phrase “required to be on call” qualifies each of the three options.  In other words, the officer may be required by the Government to be on call at home, on call at another fixed location or on call through the medium of a paging device.  Thus, it is not the officer but the Government which can specify the option.  The appellants’ contention that the officer has the right to choose the option requires the reading in of the words “at the officer’s choice”.  There are no express words enabling this to be done.  And there is no basis for any implication.  Further, if officers performing “overnight on call” have complete freedom of movement so long as he is “contactable” and can choose the option, with different officers being able to choose different options, it may be practically difficult for the purpose of CSR 669 to be served, namely, that officers would be continuously and immediately available to report for duty if required to meet operational needs.

32.  Properly construed, CSR 669 clearly covers the period of “overnight on call”.  It is a period when the officer is required to be on call by the CSD at a fixed location.  Accordingly, as provided for in the regulation, the period in question is not regarded as overtime and is not subject to any recompense.

33.  In the course of his argument, Mr McCoy SC referred to the decision of the European Court of Justice in Landeshauptstadt Kiel v Jaeger [2004] ICR 1528.  That decision was concerned with whether German law complied with the relevant European directive, the objective of which was to secure effective protection of the safety and health of employees by allowing them to enjoy minimum periods of rest.  It does not assist in relation to the interpretation of the relevant CSRs in the present case.

Shau Lin Chi: First Instance

34.  Shau Lin Chi was a case concerned with “overnight on call”.  The plaintiff was a senior officer.  When performing “overnight on call” beyond his “conditioned hours”, he had to stay in barracks of the High Island Detention Centre.  Although paid the Special Allowance, he maintained that the period of “overnight on call” was overtime and claimed time off in lieu.  Findlay J held that : (1) CSR 669

“contemplates that the officer required to be on call has a freedom not enjoyed by an officer on stand-by.  An officer on call may do whatever he wishes to do and be wherever he wishes to be provided that he is ‘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’.”

See 565G-H.  Since the plaintiff was required to remain in barracks and did not enjoy the freedom envisaged by CSR 669, he was not within the regulation.  (2) In performing “overnight on call”, he was “working” and hence performing “overtime” (which is defined in CSR 665 as work undertaken over and above the officer’s “conditioned hours”).

35.  The circumstances of the case were most unusual.  First, the performance of “overnight on call” by subordinate officers under similar circumstances as the plaintiff was not regarded by the Government as falling within CSR 669.  The judge understandably found it difficult to distinguish between them and the plaintiff.  See 566A-B, E-F.  Indeed, the Secretary for the Civil Service had taken the view that CSR 669 did not apply to the plaintiff himself.  See 565E.  Secondly, the barracks were conceded to be the plaintiff’s place of work.  No distinction was drawn between the detention centre and the barracks in its immediate vicinity.  See 563E-F, 565H-I.  See also Hartmann J’s judgment at para 84(vii) and the Court of Appeal’s judgment in the present case at para  19.

Shau Lin Chi: Court of Appeal

36.  On appeal, the issue was different.  The only issue was whether the option of “another fixed location” in CSR 669 could include the officer’s place of work, which the barracks were conceded to be.  The Court of Appeal (Mortimer VP, Godfrey and Rogers JJA) held that construing CSR 669 in its context, “another fixed location” could not include the place of work of the officer concerned.  As has been observed (see para 31 above), that interpretation of CSR 669 is correct.  However, on the conclusion reached in this judgment in relation to “place of work”, as Mr Fok SC submits, the concession in Shau Lin Chi, that the barracks were the officer’s place of work, was wrongly made.

Overruling Shau Lin Chi at First Instance

37.  Having regard to the proper interpretation of CSR 669 arrived at in this judgment, the interpretation of that regulation by Findlay J in Shau Lin Chi was not correct.  In the present case, Hartmann J and the Court of Appeal did not follow Findlay J’s interpretation.  Nor was it followed by Barma J in Leung Kam Keung v Secretary for Justice unreported HCMP 4920 of 2002 (3 November 2004).  Further, Findlay J’s decision that the performance of “overnight on call” constituted “work” for the purposes of the overtime regulation was also not right.  An officer performing  “overnight on call” would not be working.  It is only when required for duty that he would commence work. Indeed, the appellants accept that: “By definition, neither [stand-by] nor [on call] is work”.  Accordingly, the entire decision of Findlay J in Shau Lin Chi should be overruled.

Conclusion

38.  In conclusion, the period of “overnight on call” is not within CSR 668 but is within CSR 669.  On this conclusion, apart from the Special Allowance, the appellants are not contractually entitled to any recompense for performing “overnight on call”.  Performance of this duty is covered by their salaries.  In this connection, as has been noted, CSD officers joining the service have enjoyed a markedly higher rate of pay by way of salary than that awarded to persons of similar qualification joining a civilian branch of the public service.  (See para 20 above.)

39.  Having regard to the conclusion reached, it is unnecessary to deal with the Government’s fallback argument that even if this conclusion were wrong, so that the appellants are prima facie entitled to recompense for performing “overnight on call”, the appellants’ contracts have been varied so that they are only entitled to the Special Allowance.

Order

40.  The appeal must be dismissed with costs.

Mr Justice Bokhary PJ:

41.  I agree with the judgment of the Chief Justice.  There is no doubt in my mind that Correctional Services Department officers make a valuable contribution to security at correctional institutions when they are on “overnight on call”.  Nor do I doubt that making this contribution is burdensome for them albeit less so than being on “sleep-in, stand-by”.  None of that is called into question by our decision that they are within Civil Service Regulation 669 rather than Civil Service Regulation 668 when on overnight on call.  Quite simply, this decision is, despite the arguments ably urged on the appellants’ behalf, unavoidable upon a proper reading of the Regulations and a proper application of them so read to the material facts.

Mr Justice Chan PJ:

42.  I agree with the judgment of the Chief Justice.

Mr Justice Ribeiro PJ:

43.  I agree with the judgment of the Chief Justice.

Lord Millett NPJ

44.  I agree with the judgment of the Chief Justice.

Chief Justice Li:

45.  The Court unanimously dismisses the appeal with costs.

[1] “Conditioned hours” are defined in CSR 540 as “… hours of duty which salary is calculated to cover and, for staff eligible for overtime allowance, the hours which must be worked before overtime is payable …”.  CSR 544 provides that the conditioned hours for members of the disciplined services are governed by operational needs and are determined in relation to the total responsibilities of each Service, its complement, and the actual manpower situation at any time.