THE ASSOCIATION OF EXPATRIATE CIVIL SERVANTS OF HONG KONG v. THE CHIEF EXECUTIVE and Another

1997 A.L. No. 90

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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Introduction

1. This is an application by the Association of Expatriate Civil Servants of Hong Kong ("the A.E.C.S.") for leave to apply for judicial review of the decision of the Chief Executive to promulgate two instruments, and of two decisions made by the Secretary for the Civil Service in the aftermath of the recent challenge by the A.E.C.S. to the Government's attempts to localise the Public Service. An oral hearing of the application was requested by the Respondents, and in view of the large number of decisions challenged, I decided that an inter partes hearing of the application for leave was appropriate.

The two instruments

2. The two instruments promulgated by the Chief Executive are the Public Service (Administration) Order 1997 (E.O. No. 1 of 1997) ("the Executive Order") and the Public Service (Disciplinary) Regulation ("the Regulation"). The Executive Order provides for the appointment, dismissal, suspension and discipline of public servants. The Regulation establishes a disciplinary procedure for the investigation and adjudication of disciplinary offences committed by public servants. They were both intended to replace the provisions relating to those topics in the Letters Patent and the Colonial Regulations which lapsed on 30th June 1997.

3. The principal ground on which the legality of the two instruments is challenged is that they provide for the appointment and removal of holders of public office otherwise than "in accordance with legal procedures", and are therefore contrary to Art. 48(7) of the Basic Law. Given the low threshold of arguability, Mr. Joseph Fok for the Chief Executive did not seek to argue the merits of this argument. Instead, he took two points. First, the A.E.C.S.'s challenge amounted merely to a challenge to the constitutionality of the making of the two instruments. Such a challenge could not succeed, because the Chief Executive had express power to make the Executive Order, namely Art. 48(4) of the Basic Law which conferred on the Chief Executive the power "to issue executive orders", and the Chief Executive had express power to make the Regulation, namely section 21(1) of the Executive Order. Secondly, until action is taken pursuant to the Executive Order and the Regulation, the challenge is entirely academic.

4. I do not think that these arguments should result in leave to apply for judicial review being withheld. It is certainly arguable that what the A.E.C.S. is challenging is not the Chief Executive's power to make the Executive Order and the Regulation, but whether the provisions they contain are contrary to the Basic Law. And it is certainly arguable that public servants currently in post need to know now the circumstances in which they can be dismissed, suspended or otherwise disciplined, and whether the provisions relating to disciplinary hearings apply to them.

5. In addition, Mr. Fok argued that the A.E.C.S. does not have sufficient standing to challenge the legality of the two instruments until such time as a member of the A.E.C.S. is affected by them. Members of the A.E.C.S. would only be affected by the Executive Order by being appointed to the Public Service, or by being dismissed, suspended or otherwise disciplined. They would only be affected by the Regulation if they are subject to the disciplinary procedure which it provides for. There is no evidence that any member of the A.E.C.S. has yet been affected in any of these ways. This argument is also relevant to the subsidiary ground on which the legality of the two instruments is challenged, namely that they are retrospective in operation: although they were promulgated on 9th July 1997, they were deemed to have come into operation on 1st July 1997. It is not suggested that any member of the A.E.C.S. was adversely affected by either of the two instruments between those two dates. Does that mean that the A.E.C.S. does not have the standing to rely on this ground?

6. Mr. Michael Scott for the A.E.C.S. relied on the following passage in de Smith, Woolf & Jowell, "Judicial Review of Administrative Action", 5th ed., para. 2-041:

"In summary, it can be said that today the court ought not to decline jurisdiction to hear an application for judicial review on the ground of lack of standing to any responsible person or group seeking, on reasonable grounds, to challenge the validity of governmental action."

This was said by Bokhary, J.A. (as he then was), at p.51 of the transcript of the decision of the Court of Appeal in the previous challenge by the A.E.C.S. to the Government's attempts to localise the Public Service (CA 260/95), to be an accurate statement of the law. Mr. Fok forcefully argued that this statement cannot have been intended to be read literally, because otherwise a respectable body, with arguable merits, has standing irrespective of its interest in the subject-matter of the dispute. The statement relied upon was made in the context of a discussion about the standing not merely of representative bodies but also of amorphous pressure groups: it was not intended to apply to representative bodies, who only have standing if a person who it represents either has been, or could in the future be, affected by the decision challenged. I see the force of this argument, but in the light of the language of the Court of Appeal, I cannot say that the contrary is not arguable. Nor can I say that the retrospectivity issue is wholly academic. Even if a member of the A.E.C.S. has not been affected by the backdating of the two instruments, someone else might have been.

7. For these reasons, I give the A.E.C.S. leave to apply for judicial review of the decision of the Chief Executive to promulgate the two instruments on both the principal and subsidiary grounds relied upon.

The decisions of the Secretary for the Civil Service

8. The decisions of the Secretary for the Civil Service which are challenged were contained in a memorandum circulated on 12th July 1997. This memorandum announced revised arrangements for overseas officers who transfer to local conditions of service. One of those decisions has been overtaken by events. That decision was contained in para. 3(f) of the memorandum. The decision was not to accept an application for transfer to local permanent and pensionable terms for the time being. However, on 15th November, the Secretary for the Civil Service announced the lifting of the temporary suspension on the transfer to local permanent and pensionable terms with immediate effect. In those circumstances, the decision contained in para. 3(f) of the memorandum of 12th July is no longer challenged, and Mr. Scott was content for the application for leave to apply for judicial review of it to be dismissed.

9. The other decision challenged was contained in para. 3(e) of the memorandum. The decision read:

"As from the commencement of the agreement modelled on local conditions, a transferee will cease to be eligible for sea passage, homeward passage and baggage allowance on finally leaving the service."

This decision was the same as one included in the memorandum announcing the original transitional arrangements for overseas officers who transferred to local conditions of service. That memorandum was issued on 13th September 1993, and the decision read:

"Upon transfer to local agreement terms, a transferee will cease to be eligible for sea passage, homeward passage and baggage allowance on finally leaving the service."

That decision was one of the decisions challenged in the previous A.E.C.S. case. It was the decision in para. 1(3)(v) of the Amended Notice. Leave to apply for judicial review of that decision was refused. Judgment on the application was reported at [1995] 1 HKLR 75 at p.79:

"As for the decision in para. 1(3)(v), I do not believe that arguable grounds for challenging that decision exist. Officers who transfer to local conditions of service cannot complain about the loss of benefits to which officers on local conditions of service were never entitled. I therefore decline to give the Applicants leave to challenge that decision."

There was no appeal from that refusal.

10. Has there been a material change of circumstances since then? The ground upon which the decision is now sought to be challenged is that it "abrogates accrued contractual rights". This is a similar argument to an argument in the previous case about the prohibition on transferring officers carrying forward untaken leave. Both the High Court and the Court of Appeal agreed that that prohibition would have been unlawful if it had involved the abrogation of accrued contractual rights. What they disagreed on was whether the prohibition had in fact resulted in accrued contractual rights being abrogated. The Court of Appeal held that the prohibition had involved the abrogation of accrued contractual rights. But that is of no help to the A.E.C.S. now. There is the world of a difference between contractual rights relating to leave, which are literally accrued by virtue of continuing service, and contractual allowances relating to passages and baggage, which are acquired by virtue of the officer's status as a public servant. Accordingly, the application for leave to apply for judicial review of the decision in para. 3(e) of the memorandum of 12th July must be dismissed.

Particular provisions in the Executive Order and the Regulation

11. The Notice of Application for leave to apply for judicial review identified the decisions which were being challenged as the decision of the Chief Executive to promulgate the two instruments, and the two decisions of the Secretary for the Civil Service. However, the grounds on which relief was sought showed that the A.E.C.S. also wanted to challenge particular sections of the Executive Order and particular regulations in the Regulation. The fact that these were separate challenges was drawn to the attention of the A.E.C.S., and Mr. Scott was informed that they could only proceed if leave to apply for judicial review of the particular sections and regulations was sought. That prompted the A.E.C.S. to file what it described as a "Supplementary Notice" to the original Notice of Application.

12. Ord. 53 does not provide for such a Supplementary Notice. At the hearing, I told Mr. Scott that I thought that it would be necessary for the A.E.C.S. to file a new Notice of Application with a new A.L. No., which could in due course be consolidated with the current application. I have changed my mind since the hearing. I think that the only thing which needs to be done is for me to give the A.E.C.S. leave to amend the original Notice of Application to incorporate the contents of the Supplementary Notice. I therefore grant leave for that to be done, and it will not be necessary for any further document to be filed.

13. There are a number of provisions of the Executive Order and the Regulation which the A.E.C.S. challenged in the original Notice of Application but which do not feature in the Supplementary Notice. Mr. Scott confirmed that the A.E.C.S. is at present applying for leave to apply for judicial review only of those provisions of the Executive Order and the Regulation which are referred to in the Supplementary Notice. I must deal with each of the provisions in turn, though some of them can for convenience be dealt with together.

14. Sections 11, 15 and 16 of the Executive Order and reg. 14 of the Regulation. Section 11 of the Executive Order provides:

"If an officer has been convicted on a criminal charge the Chief Executive may, upon a consideration of the proceedings of the court on such charge, inflict such punishment upon the officer as may seem to him to be just, without any further proceedings."

Section 15 of the Executive Order provides:

"An officer acquitted of a criminal charge shall not be punished in respect of any charges upon which he has been acquitted, but he may nevertheless be punished on any other charges arising out of his conduct in the matter which do not raise substantially the same issues as those on which he has been acquitted and the appropriate proceedings may be taken for the purpose."

Section 16 of the Executive Order provides:

"An officer who is dismissed forfeits all claims to any pension, gratuity or other like benefits and to any other benefits or advantages of an officer."

Reg. 14 of the Regulation provides for the withholding of an officer's salary if he is convicted of a criminal offence and the conviction may lead to his dismissal.

15. These provisions are said to be incompatible with Art. 11(6) of the Bill of Rights and section 101D of the Criminal Procedure Ordinance (Cap. 221). Art. 11(6) provides:

"No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong."

Section 101D provides:

"Where any act constitutes 2 or more offences, whether under the same Ordinance or otherwise, the offender shall be liable to be prosecuted and punished for any or all such offences but shall not be liable to be punished twice for the same offence."

I do not think it arguable that the provisions in the Executive Order and the Regulation are incompatible with Art. 11(6) or section 101D. The words "liable to be tried or punished again" in Art. 11(6) and the words "liable to be punished twice for the same offence" in section 101D can only refer to a trial in a criminal court and to punishment imposed as a result of criminal proceedings. They do not refer to disciplinary sanctions imposed as a result of the commission of a disciplinary offence. In any event, the withdrawal of salary provided for by reg. 14 does not amount to "punishment": rather, it is in the nature of a provision permitting the withdrawal of a contractual benefit. Accordingly, I refuse to grant the A.E.C.S. leave to apply for judicial review of these provisions in the Executive Order and the Regulation.

16. Section 17 of the Executive Order provides:

"An officer who is under interdiction may not, without the permission of the Chief Executive, leave HKSAR during the interval before he is reinstated or dismissed."

This provision is said to be incompatible with Art. 8(2) of the Bill of Rights, which provides:

"Everyone shall be free to leave Hong Kong."

Art. 8(3) of the Bill of Rights provides that this right

"shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in this Bill of Rights."

In my view, it is arguable that section 17 is incompatible with Art. 8(2), because the restriction in it does not come within the only relevant exception in Art. 8(3), namely that it is "provided by law", since it is arguable that the Executive Order itself does not have the force of law. I do not overlook Mr. Fok's argument that section 17 does not actually prohibit anyone from leaving Hong Kong: it simply requires the officer to obtain permission before he does so. In my view, it is certainly arguable that the need to obtain permission before leaving Hong Kong is a restriction on the right to leave Hong Kong. Accordingly, I grant the A.E.C.S. leave to apply for judicial review of section 17 of the Executive Order.

17. Section 20 of the Executive Order provides:

"(1) Every officer who has any representations of a public or private nature to make to the Government of HKSAR should address them to the Chief Executive. The Chief Executive shall consider and act upon each representation as public expediency and justice to the individual may require.

(2) The Chief Executive may appoint a review board to advise him on such representations addressed to him relating to appointment, dismissal and discipline of public servants as he thinks fit."

The A.E.C.S. argues that the effect of section 20(1) is to restrict the rights of officers to make representations to the Chief Executive only, and to preclude those who are Hong Kong residents from exercising their right to make complaints in connection with their employment to the Legislative Council under Art. 73(8) of the Basic Law, and thereby to invoke the Legislative Council's investigative powers. I do not think that it is arguable that section 20(1) is capable of bearing that construction, but in any event the Chief Executive gave an assurance in open court through Mr. Fok that section 20(1) will not be used to prevent an officer who is a Hong Kong resident from exercising his right to lodge a complaint with the Legislative Council.

18. Section 20(2) is said to contravene section 63(2) of the Interpretation and General Clauses Ordinance (Cap. 1) and to be incompatible with Art. 48(13) of the Basic Law. Section 63(2) provides that

"nothing... shall authorize the Chief Executive to delegate any person ... to determine any appeal."

Art. 48 lists the powers and functions which the Chief Executive "shall exercise", and includes in (13) the power and function "to handle petitions and complaints". This challenge misses the point entirely. Section 20(2) merely empowers the Chief Executive to appoint a review board to advise him - not to take decisions in his name. For these reasons, therefore, I refuse to grant the A.E.C.S. leave to apply for judicial review of section 20 of the Executive Order.

19. Reg. 8(3)(a) of the Regulation, and paras. 3(b)(i) in Parts A and B of the Schedule to the Regulation. The effect of these provisions is to prevent an officer from being legally represented at a disciplinary hearing. This is said to be incompatible with Art. 11(2)(d) of the Bill of Rights which provides, so far as is material:

"In the determination of any criminal charge against him, everyone shall be entitled ... to defend himself in person or through legal assistance of his own choosing."

It cannot be argued that Art. 11(2)(d) is applicable in view of its application only to the determination of a criminal charge. However, I think that the A.E.C.S. is on more promising ground in relation to Art. 21(c) of the Bill of Rights which provides, so far as is material:

"Every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions,... to have access, on general terms of equality, to public service in Hong Kong."

The right of access to public service which Art. 21(c) protects include access to the terms and conditions of service enjoyed by other officers. And a restriction on the right of access amounts to an infringement of Art. 21(c) if that restriction is unreasonable. That is what was held in the High Court in the previous A.E.C.S. case reported at (1995) 5 HKPLR 490 at pp.516I-517H. Police officers and judicial officers are allowed to be legally represented in disciplinary proceedings. In my view, it is arguable that denying to other officers that right is an unreasonable restriction on the right protected by Art. 21(c). Accordingly, I grant the A.E.C.S. leave to apply for judicial review of these provisions, but only on the ground that they are incompatible with Art. 21(c).

Miscellaneous matters

20. The order nisi which I propose to make as to costs is that the costs of the application be reserved. I believe that directions should be given for the future conduct of the case. In particular, it may be that it would be appropriate to order an expedited hearing of the case, in which case I would have to make orders abridging the time for the filing of evidence. I leave it to the parties to decide when the matter should be restored for further hearing. There was talk in the course of the hearing about hiving off the decisions of the Secretary for the Civil Service which were challenged. Since the application for leave to apply for judicial review of those decisions has been dismissed, that issue no longer arises.

21. Finally, I have referred in this judgment to whether a particular point is arguable. That is a form of shorthand. The test which I have applied is the one laid down by Godfrey, J. (as he then was) in the Court of Appeal in R. v. Director of Immigration ex p. Ho Ming Sai (1993) 3 HKPLR 157 at p.170:

"Does the material before me disclose what might on further consideration turn out to be an arguable case?"