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

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JUDGMENT

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Rogers J.A.:

1. This is an appeal from a decision of Keith J. given on 28th April of this year in which he considered an application on behalf of the Association of Expatriate Civil Servants of Hong Kong for leave to apply for judicial review of a number of decisions of the Secretary for Civil Service.

2. The Judge gave leave in respect of 3 grounds and refused leave in respect of 2 other grounds. It is in respect of the refusal to give leave in respect of those decisions that this appeal is brought.

Decision 2

3. I turn to what has been referred to as decision 2. This is contained in para. 9 of circular 16/97. That paragraph says that some officers, namely those on local agreement terms who had applied to transfer to local P&P terms before 31st October 1995 and officers on local model terms (i.e. overseas officers who had in effect transferred to local terms) before 31st October 1995 provided they applied to transfer within 1 year would be permitted to apply to transfer to local P&P terms under the arrangements prevailing before 31st October 1995. The judge refused leave to apply for judicial review of this decision, firstly because he could see no grounds for challenging it and secondly because the attack on this decision would not be of any relevance if the attack on decision 1 was successful. In essence, that attack is based on whether the proficiency in Chinese should be a criteria for eligibility for transfer. If the attack on decision 1 is successful then it seems to me the grounds for complaint will have been removed since the language criteria which is apparently the real nub of this complaint would be removed.

4. It was argued that the other criteria under para. 8 of the circular might have changed and thus the old rules would thus apply to some but the new rules would apply to others thus creating a discrepancy. However, the matters dealt with in para. 8 are matters of service need, performance and conduct and physical fitness. These cannot have changed to any significant extent and in any event, any change in these would hardly be a matter of judicial review. Since this was not the nub of the complaint I consider that these matters are irrelevant.

Decision 3

5. This decision turns on the point that overseas officers who are on agreement terms cannot transfer in one step to local P&P terms but have to apply to transfer to local agreement terms or their equivalent first and then transfer to local P&P terms as a second step in the process.

6. The consequence of this arrangement is that whilst applying for local agreement terms, they are subject to the opening up provisions, in other words, their jobs are open to competition and if they are unsuccessful in retaining their jobs, they are required to leave the service.

7. Mr. Scott on behalf of the Association argued that this matter had been covered by para. 4 of the Order of 22nd December 1995. This had been a consent order following a lengthy hearing and Decision by Keith J. Hence, Keith J. was in the best position to know what had been the subject of the previous Decision and what the Order in fact covered.

8. We have been taken at length through the various documents including the previous circulars which were the subject of the previous Decision, the previous Decision and the Order. In my view, Keith J. was correct that the matter had not been argued in the previous case which he heard in 1995 and was not, therefore, the subject of the Order as properly construed.

9. As Keith J. observed at page 7 of his Decision and as happened in this court, Mr. Scott deployed an alternative argument and that was based on Art. 21(c). Keith J. held that in effect it was far too late for this matter to be the subject of judicial review since the circumstances prevailing, namely the inability to transfer to local P&P terms in a one stage process had been a feature which had been in existence since at least in 1992.

10. In the light of that, in my view, Keith J. was entirely correct in deciding that the matter was now too late to be the subject of judicial review. The inability to make a one stage alteration in status was clearly spelt out in the previous circulars and the fact that it is now to be also read in the present circulars cannot make a decision in these more recent circulars the subject of judicial review.

11. I would, therefore, dismiss this appeal.

Seagroatt J.:

12. I agree.

Mortimer V.-P.:

13. I also agree that this appeal must be dismissed.

14. In considering this matter, Keith J applied the correct test. That was one expressed by Godfrey J (as he then was) in R v Director of Immigration ex p Ho Ming Sai (1993)3 HKPLR 157 at p. 170:

15. That is, of course, a very low threshold. We have considered the matters advanced on appeal by Mr Scott, whom we have permitted to appear on behalf of the Association of Expatriate Civil Servants of Hong Kong.

16. The matters that he has advanced to attack Keith J's decision are basically those which were advanced in the application. For my part, having tested Keith J's reasons against what has been submitted to us, it is impossible to improve upon them. It is clear that the reasons he gave are correct. The low threshold test has - in respect of the two decisions - not been met. This appeal should be dismissed.

17. In those circumstances the appeal is dismissed.

[Application for costs by Secretary for the Civil Service resisted by Mr Scott.]

18. There is an application for costs by the Secretary for the Civil Service. This is a discrete matter. There is no reason for not ordering that the costs should follow the event. In those circumstances the Secretary for the Civil Service shall have the costs of this appeal.