林進傑 v. 申訴專員

HCAL 1169/2022

[2022] HKCFI 3469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1169 OF 2022

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D E C I S I O N

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A.  Introduction

1.  By Form 86 filed on 31 October 2022, the Applicant seeks leave to apply for judicial review, to challenge the decision of the Ombudsman dated 6 September 2022 refusing to pursue the Applicant’s underlying complaint.

2.  Having considered the materials filed, I consider that this application can be dealt with on paper. This is my Decision.

B.  Background

3.  By an email dated 20 August 2022, the Applicant wrote to the Education Bureau to enquire about the daily rates of pay for a supply teacher in aided schools starting from 1 September 2022.

4.  By letter dated 22 August 2022, the Applicant lodged a complaint (“Complaint”) with the Ombudsman that the Education Bureau had failed to announce such information up to that date.

5.  By letter dated 6 September 2022, the Ombudsman declined to pursue the Complaint, on the basis that the Complaint falls within Schedule 2 of the Ombudsman Ordinance Cap 397 (“Ordinance”) and thus is outside the Ombudsman’s purview under section 8 of the Ordinance. (The Ombudsman has also pointed out, not unreasonably in my view, that the Applicant did not wait for very long after his enquiry email on 20 August 2022 before he made his Complaint on 22 August 2022.)

6.  Section 8 of the Ordinance provides:

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

7.  Schedule 2 of the Ordinance at §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.

8.  By letter dated 14 September 2022, the Applicant requested the Ombudsman to re-assess the refusal to pursue the Complaint. The basis put forward in the letter is that §5 of Schedule 2 only covers pay of employees employed by the Government or the Education Bureau, but since supply teachers of aided schools are employed by the aided schools rather than by the Government or the Education Bureau, the Complaint is not covered by Schedule 2.

9.  By letter dated 10 October 2022, the Ombudsman maintained the original decision. It is explained in the letter that whilst supply teachers are not employed by the Government, the determination of their daily rates of pay is nonetheless an action in respect of pay matters exercised pursuant to the powers vested in the Education Bureau. Whilst not expressly identified in the letter, that is clearly a reference to §5(b) of Schedule 2.

10.  Further correspondence with the Ombudsman followed which is irrelevant and need not be canvassed for present purposes.

C.  Merits of the Application

11.  In the Form 86, the sole intended ground of review put forward is that it is unlawful for the Ombudsman to refuse to pursue the Applicant’s Complaint on the basis of section 8 and Schedule 2 of the Ordinance. He says the Ombudsman has wrongly construed section 8 and Schedule 2.

12.  However, I agree with the Ombudsman’s reading of the relevant provisions.

13.  §5(b) of Schedule 2 is clearly wider than §5(a). Insofar as pay matters are concerned, §5(a) covers pay matters in relation to services under the Government or those organizations listed in Schedule 1. But §5(b) covers complaints pertaining to a power exercised related to pay matters when such power is vested in a Schedule 1 organization, regardless of whether the relevant persons whose pay is affected are employed by a Schedule 1 organization or not.

14.  As explained by the Ombudsman in the 10 October 2022 letter, the Education Bureau takes action in respect of pay rates for supply teachers in aided schools, pursuant to powers vested in it. Indeed, it might be thought that is surely why the Applicant made the original enquiry with the Education Bureau in the first place.

15.  The Ombudsman’s construction of the relevant provisions is correct. The intended ground of review is not reasonably arguable with any reasonable prospect of success.

D.  Conclusion

16.  The application is dismissed with no order as to costs.