HO CHEE SING JAMES v. SECRETARY FOR JUSTICE

[English Translation – 英譯本]
HCLA 37/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 37 OF 2007

(ON APPEAL FROM LBTC NO. 2980 OF 2007)

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REASONS FOR JUDGMENT

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1. The claimant was a Principal Officer (Management) of the Correctional Services Department. He was appointed as Acting Chief Officer (Operations) between 1 June and 27 September 2001. He considered that, as he was required to perform the duties of the original post at the same time, he was in effect “doubling up” instead of “acting up”. In view of this, he commenced proceedings in the Labour Tribunal on 6 June 2007, claiming against the HKSAR Government for the salary difference between “doubling up” and “acting up”. The amount involved was $51,426.37.

2. The Presiding Officer of the Labour Tribunal ordered on 20 July 2007 that the case be transferred to the District Court. The claimant appealed against this order. The relevant leave to appeal was granted by this Court on 12 October 2007.

3. After hearing on 18 January 2008, I allowed the appeal for reasons to be set out below.

The Presiding Officer’s reasons for decision

4. The Presiding Officer made the order for the transfer of the case to the District Court mainly on the basis of the following factors:

(1)           It was doubtful whether the Labour Tribunal had jurisdiction over disputes between civil servants and the HKSAR Government.

(2)           Clarification should also be sought as to whether the claimant should make the claim by way of judicial review proceedings.

(3)           The two legal questions mentioned above could only be resolved with the assistance and submissions of counsel.

The stance of the Secretary for Justice

5. As the claimant was claiming against the HKSAR Government, the Secretary for Justice became the defendant in the claim pursuant to section 13 of the Crown Proceedings Ordinance (Cap. 300 of the Laws of Hong Kong).

6. To date the Department of Justice has never disputed the lodging of the civil claim by the claimant in the Labour Tribunal. The Department had submitted a legal opinion to the Tribunal, stating that the Tribunal should have jurisdiction over the case and giving reasons therefor.

7. In this appeal, the Department of Justice has also submitted a statement to the court, stating that the case can be initiated in and heard before the Labour Tribunal and setting out the legal arguments and authorities in support. The Department of Justice does not oppose the appeal, nor does it object to the case proceeding in the Tribunal.

Reasons for allowing the appeal

8. The key issues in this appeal are the nature of the claimant’s claim and the jurisdiction of the Labour Tribunal.

9. First of all, the claimant was employed by the Correctional Services Department, which is a department within the HKSAR Government. It is undisputed that the claimant was a civil servant. There was an employment relationship between the claimant as the employee and the HKSAR Government as the employer. There also existed a contractual relationship between them. In the case of Secretary for Justice v. Lau Kwok Fai Bernard and others (2005) 8 HKCFAR 304, the Court of Final Appeal affirmed that there existed a relationship of a contract of employment between the HKSAR Government and a civil servant: see also Yeung Chung Ming v. Commissioner of Police, CACV 13/2006.

10. The claimant’s claim in the Labour Tribunal is for the amount of salary that in his view the Government had not duly paid him. The main issues involved in the dispute are whether the claimant was, as he said, performing two jobs at the material times, and whether he was entitled to be paid the “doubling up” allowance under his employment contract with the HKSAR Government.

11. In short, the claimant’s claim arises from a dispute involving an employment contract, which falls within the domain of civil litigation. Although the claim involves the interpretation and application of provisions in the Civil Service Regulations, this is because those Regulations are binding on the employment relationship between civil servants and the HKSAR Government and govern the respective contractual obligations of the parties as employer and employees. The claimant’s claim, being a claim under private law, does not involve any public interest or public policy or indeed any other element of public law. Therefore, the claimant need not and cannot pursue his claim by applying for judicial review.

12. Paragraphs 3 and 4 of the Presiding Officer’s Reasons for Decision refer to the case of Yeung Chung Ming v. Commissioner of Police, HCAL 125/2005, CACV 13/2006. In that case, a police officer who had been charged with criminal offences was interdicted by the Commissioner of Police. At the same time, the Commissioner suspended payment of a proportion of his salary during the period of interdiction pursuant to section 17(2) of the Police Force Ordinance (Cap. 232 of the Laws of Hong Kong). The police officer applied for judicial review of the Commissioner’s decision to make the said suspension. Although the ultimate aim of the applicant in that case was to claim for the salary withheld, the nature of his litigation was completely different from that of the claim with which the present appeal is concerned. In Yeung Chung Ming,the applicant challenged whether the policy and guidelines adopted by the Commissioner in exercising the discretionary power conferred on him by section 17(2) of the Police Force Ordinance were contrary to the Hong Kong Bill of Rights Ordinance (Cap. 383 of the Laws of Hong Kong), and argued that if they were, the Commissioner’s decision would have been unlawful or irrational. Those issues, involving as they did both public interest and public policy, obviously fell within the realm of public law, and therefore the claim should be conducted by way of judicial review.

13. Second, as regards the jurisdiction of the Labour Tribunal, it is governed by section 7 of and the Schedule to the Labour Tribunal Ordinance (Cap. 25 of the Laws of Hong Kong). Section 7 provides that:

(1)       The tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule.

(2)       Save as is provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any court in Hong Kong.

At the same time, paragraph 1(a) of the Schedule refers to:

1.         A claim for a sum of money which arises from –

(a)  the breach of a term, whether express or implied, of a contract of employment, whether for performance in Hong Kong or under a contract to which the Contracts for Employment Outside Hong Kong Ordinance (Cap. 78) applies; …

14. The claimant’s claim stems from a dispute under a contract of employment and is therefore a claim specified in the said paragraph 1(a) of the Schedule. In terms of the nature of the litigation, the claim is within the jurisdiction of the Labour Tribunal.

15. However, the Presiding Officer was apparently concerned with this: is the defendant, being the HKSAR Government, not bound by the Labour Tribunal Ordinance, as a result of which the Labour Tribunal has no jurisdiction over disputes between civil servants and the Government? The Presiding Officer cited paragraph C.3 of Part C of Hong Kong Employment Law Manual (LexisNexis), which mentions that the Employment Ordinance (Cap. 57 of the Laws of Hong Kong) does not apply to civil servants. The same paragraph also points out that some statutes relating to employment protection and labour relations, which include the Labour Tribunal Ordinance, do not expressly provide that they apply to the HKSAR Government.

16. On the question of whether certain statutory provisions are binding on the HKSAR Government, section 66 of the Interpretation and General Clauses Ordinance (Cap. 1 of the Laws of Hong Kong) provides that:

(1)    No Ordinance (whether enacted before, on or after 1 July 1997) shall in any manner whatsoever affect the right of or be binding on the State unless it is therein expressly provided or unless it appears by necessary implication that the State is bound thereby.

The definition of “the State” includes the HKSAR Government.

17. The Labour Tribunal Ordinance does not expressly provide that the HKSAR Government is bound by it. The crux of the question is whether it appears by “necessary implication” that the HKSAR Government is bound by the Labour Tribunal Ordinance. The Presiding Officer has taken the view that, since sections 10 and 11 of the Crown Proceedings Ordinance (Cap. 300 of the Laws of Hong Kong) have already provided for civil proceedings against the HKSAR Government which are instituted in the District Court and the High Court, it is questionable whether it appears by “necessary implication” that the HKSAR Government is bound by the Labour Tribunal Ordinance.

18. However, as pointed out by Miss Wong for the Department of Justice, section 23(1) of the Labour Tribunal Ordinance contains the following provisions in respect of the right of audience before the Labour Tribunal:

(1)    The following persons shall have a right of audience before the tribunal –                     

          …

(f)   a public officer, not being a barrister or solicitor, who appears on behalf of the Secretary for Justice, if the Secretary for Justice is a claimant or a defendant. …

19. It is clearly the objective of section 23(1)(f) to cater for the arrangement on the right of audience before the Labour Tribunal when a claim is instituted in the Tribunal by or against the Secretary for Justice. Under section 13(1) of the Crown Proceedings Ordinance, civil proceedings involving the HKSAR Government shall be instituted by or against the Secretary for Justice. Therefore, it can be inferred from section 23(1)(f) that, when enacting the Labour Tribunal Ordinance, the legislature already anticipated that claims under contracts of employment which involved the Government would be instituted in the Labour Tribunal. It follows that, although the Labour Tribunal Ordinance does not expressly provide that the Government is bound by it, it appears by “necessary implication” that the Government is so bound. The provisions on the jurisdiction of the Labour Tribunal under section 7 of and the Schedule to the Labour Tribunal Ordinance are also binding on and applicable to the HKSAR Government.

20. Miss Wong has also referred to some previous cases of employment contract disputes between civil servants and the HKSAR Government which were heard before the Labour Tribunal, such as Tjong Kee Ming v. Secretary for Justice, LBTC 7064/2003. There was, however, no discussion or determination in those cases on whether the Tribunal had jurisdiction vis-à-vis the HKSAR Government.

Conclusion

21. Based on the above analysis, the Labour Tribunal does, in my judgment, have jurisdiction over the claimant’s claim, which therefore need not be transferred to the District Court.

22. For this reason, I make the following orders:

(1)           The appeal is allowed.

(2)           The Presiding Officer’s order of 20 July 2007 is set aside.

(3)           The claimant’s claim is to proceed in the Labour Tribunal and be heard by another presiding officer.

Costs

23. The claimant applies for costs of the appeal against the defendant in the sum of $11,902. The defendant opposes the application but does not seek costs against the claimant.

24. There are exceptional circumstances in the present appeal that justify a departure from the general rule that costs are to follow the event. The Secretary for Justice as the defendant has all along maintained the stance that the Labour Tribunal has jurisdiction over the claim and agreed that the claim should be heard in the Tribunal. Not only has he not opposed the appeal, but he has also assisted the court on the relevant legal issues. In these circumstances, the court should not make a costs order against the defendant. In my view, it is both reasonable and correct to order that the costs of the appeal be in the cause of the claimant’s claim in the Labour Tribunal. I therefore order that the costs of the present appeal be costs in the cause of LBTC 2980/2007.