CHENG HO KEE AND OTHERS v. SECRETARY FOR JUSTICE

CACV 54/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 54 OF 2004

(ON APPEAL FROM HCA 16883 OF 1999)

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J U D G M E N T

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Hon Woo VP:

1. This is a case that basically relates to the interpretation of two provisions in an employment contract.  The plaintiffs, over 3,000 of them, are, or were at all material times, officers of various ranks in the Correctional Services Department (“the Department”) which runs all of the prisons and correctional institutions in Hong Kong.  The plaintiffs’ claim is for recompense for the “overnight on call duty” (“OOCD”) that they were required by the Department to perform. 

2. Their chief contention in this appeal is that OOCD was a duty not provided for in the Civil Service Regulation (“CSR”) but was created by the Department.  It was common ground that CSR, as revised from time to time, contains the contractual provisions of the employment.

3. Two other kinds of duty are provided in the CSR, namely “on call” duty (“OC”) under CSR 669 in respect of which no overtime allowance is payable, and “stand-by” duty (“SB”) under CSR 668 in respect of which overtime allowance (at a reduced rate) is payable or time-off is allowed.  The plaintiffs claim that the nature and extent of OOCD put it within the scope of SB and therefore recompense by way of overtime allowance should have been paid or time-off should have been given to them, but the Department had failed to do so.  Their claim is for the recompense and damages to be assessed.

4. CSR 668 provides as follows:

“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.” (Emphasis added)

5. CSR 669 reads:

“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 is required, is not regarded as overtime. …” (Emphasis added)

6. It is common ground that the OOCD that the plaintiffs were required to perform was outside and beyond the conditioned hours that can be understood simply as normal working hours.  The OOCD includes, however, the following features regarding the officer who is required to perform the duty in a particular institution:

(a)   he is required to make himself continuously and immediately available;

(b)   he is required to remain in the immediate vicinity of the related institution; and

(c)   he is required to be ready at the main gate of the institution within the norm of 15 minutes.

7. Hartmann J, whose judgment is the subject of this appeal, found that there were the following features or requirements of the officer who performed the “sleep-in, stand-by” duty, which do not apply to OOCD, namely,

(a)   parading on and off duty within the security walls and fences of the related institution;

(b)   being confined inside the stand-by quarters within the institution;

(c)   having little opportunity for recreation and entertainment;

(d)   being unable to receive visitors;

(e)   being restricted in the nature of the foodstuffs, beverages and entertainment materials that he may bring.

8. It is thus obvious that the requirements or features of OC are quite different from and less restrictive than SB, given that “sleep-in, stand-by” was the only form of SB required of the plaintiffs by the Department. 

9. However, Mr McCoy SC for the plaintiffs, stresses two points that, as he contends, put OOCD within the ambit of CSR 668 or at least make it more similar to the requirements stipulated in CSR 668 than those described in CSR 669, with the ensuing benefit to the plaintiffs:

(1)	The term “in another fixed location” under CSR 669 means a location of the officer’s, as opposed to the superior’s, choice, and therefore the duty under CSR 669 does not restrict the officer’s freedom of movement, except to the extent of making himself available continuously and immediately to report for duty at the main gate of the institution within 15 minutes.
(2)	The requirement of the officer to be in the immediate vicinity of the institution, albeit not within its walls and fences, renders that vicinity “a place of work” under CSR 668.

10. I have had the advantage of reading Stock JA and Tang JA’s judgments in draft and I agree with them.  I would like only to add a few observations of my own.

11. OC and SB both restrict the freedom of movement of the officer performing the duty: OC to a lesser extent and SB to a larger extent.  The extent of the restrictions in OC is dependent on whether “in a fixed location” under CSR 669 is a location for the choice of the officer or of his superior.  If the choice is the officer’s then the restriction is reduced to a constraint to make himself ready to report for duty at the main gate within 15 minutes, without any other restriction as to his freedom of movement.  Whose choice it is depends on the true construction of the term “in a fixed location” in CSR 669. 

12. Mr McCoy relies heavily on what Findlay J said in Shau Lin Chi v Secretary for Justice [1998] 4 HKC 562, at 565F:

“… CSR 669 contemplates that the officer required to be on call has a freedom not enjoyed by an officer on stand-by.  An officer 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’.  … He was required ‘to remain on call … in the area [in the immediately vicinity] away from his official place of abode and accommodated at the barrack accommodation’ [outside but in close proximity of the institution].  …. In these circumstances, it is very hard for me to understand how it can possibly be said that the plaintiff was merely on call as contemplated by CSR 669.” (Emphasis added)

13. In that case, whether CSR 669 referred to the choice of the officer or rather his superior’s was apparently not a disputed issue and thus Findlay J’s view in the passage cited above was obiter.

14. In my judgment, the clear literal interpretation is in favour of the choice by the superior.  That was also the view taken by the judge in this case and by Barma J in Leung Kam Keung v Secretary for Justice, HCMP 4920/2002 (3 Nov 2004, unreported), at para 21.

15. The judge in the present case had also dealt with this point by using the purposive approach to interpretation.  He examined the operational requirements and needs of the Department that the officers had contractually been required to “live by the job” that he described as the fundamental principle of service in the Department, the history of the fixing of salaries regarding the personnel working in the Department by taking into account the requirement of this “live by the job” principle, and the history of the relevant CSRs, etc.  He noted that while officers who performed OOCD were not given any allowance originally, they were subsequently given special allowance for hardship for the disruption of their family life.  This special allowance had been given to the plaintiffs and is not a part of their claim.  He similarly came to be conclusion that OCCD, that has to be performed in a fixed location as the superior directs, was within the ambit of CSR 669 and not CSR 668.

16. Regarding the “place of work” point, Mr McCoy’s argument is that when the officer is required to be “in a fixed location” as directed by his superior, then that fixed location, usually being the quarters or facilities in the immediate vicinity of the related institution, is his place of work.  The reason, so Mr McCoy submits, is that since the officer is required to wait there to make himself ready to perform his duties, he must be considered to be working at the direction of his superior and the place where he is required to be must be his place of work.  Mr Benjamin Chain, junior counsel for the plaintiffs, gives a slightly different reason.  He argues that whether the officer is working is irrelevant in the context of CSR 668, which provides for SB that is not a form of active duty (and thus contrary to the concept of “work”), insofar as he is required to be in a fixed location because that requirement by itself makes the fixed location his place of work.

17. These arguments find some support in Findlay J’s judgment in Shau Lin Chi, at pp 566G-567B, as follows:

“In simple terms, ‘work’ is doing what your master tells you to do.  If your master tells you to undertake a specific task, that is work.  If your master tells you to wait until the need raises to perform a specific task, that is also work.  Work is not, in the context, only dealing with rioting detainees, pursuing an escaped inmate or some other active duty.  If this were so, I venture to suggest that most officers in the Correctional Services Department do very little ‘work’.  Their ‘work’ in the institutions is providing a presence; a ‘warm body’; being there and being ready to deal with the situations that arise.  And that is just what the plaintiff and his colleagues were doing; they were, under their superiors’ command, being where they were told to be and being ready to deal with any emergency that might occur.  Mr Dykes [counsel for the defendant] himself quoted John Milton, who said ‘They also serve who only stand and wait.’, which, as we all know, is the lot, by and large of any member of a disciplined force on duty, be he a solider, policeman or prison officer.  The plaintiff and his officers were told to say in the vicinity of HIDC and await instructions.  They were at their master’s beck and call; their lives and time were not their own.  They were doing what their master told them to do.  That, to may mind, is ‘work’ as envisaged by these regulations.

Accordingly, I find that the plaintiff was, during the relevant times, performing overtime as required by his superior.  If follows from my findings that he was entitled to time off as recompense for that overtime. …” (Emphasis added)

18. However, on appeal, the issue to be decided was whether “another fixed location” in CSR 669 could include the place of work, upon the concession that if the place of work was not “another fixed location” the appeal must fail. 

19. I reject the plaintiffs’ arguments.  The fixed location (outside the bounds of the penal institution) is directed by the superior, in the immediate vicinity of the institution, so as to ensure that the officer is ready to report for duty within 15 minutes at the main gate of the institution.  That is clearly within the ambit of CSR 669.  Shau Chi Lin related to the officer being required to be at a place which was conceded to be his place of work, and therefore Findlay J’s decision is distinguishable from the present case. 

20. Moreover, the argument that the officer is working when required to be in a fixed location outside his place of work is contrary to the House of Lords’ decision in Suffolk CC v The Secretary for Environment & Anor [1984] ICR 882, where a part-time fireman was required while on call to remain in his own shop that was within 5 minutes’ walking distance to the fire station and the House held that he was not in employment while just waiting in his shop to be on call.  The argument about the place of work is also contrary to the interpretation of “another fixed location” enunciated in the decision of the Court of Appeal in Shau Lin Chi on appeal from Findlay J’s judgment, reported in [1999] 2 HKC 585.  All the three judges in the Court of Appeal were unanimous that “another fixed location” in CSR 669 could not include the officer’s “place of work”.

21. Further, Findlay J’s judgment on “work” did not make a distinction between active duty and inactive duty.  OOCD is a form of inactive duty and, in my judgment, is contractually excluded by CSR 669 from being treated as duty attracting overtime benefit.

22. Thus the two points made by Mr McCoy to put the plaintiffs within the ambit of CSR 668 as if they were on SB fail to do so.  The identified distinguishing features postulated in an attempt to oust OOCD from the ambit of CSR 669 are not different from the requirements and features of OC duty stipulated in CSR 669, as properly construed.  The plaintiffs were contractually bound by CSR 669 as not to be entitled to any overtime allowance or benefit for performing OOCD.

23. I accept the respondent’s submission that the crucial distinction between CSR 668 and CSR 669 is whether the officer is required to be “at his place of work”.  There is no such requirement in OOCD.  Any recompense for OOCD is covered by the normal salary which has been fixed to take into account the “live by the job” service required of him by the Department.

24. In the circumstances, and for the reasons given in Stock and Tang JJA’s judgments, I agree that the appeal must be dismissed with costs.

Hon Stock JA:

25. The determination of this appeal falls within a narrow compass.  It is a question of construction that requires a common sense analysis of words in their context.

26. What we are called upon to construe is the phrase “required to standby at his place of work”, and the issue boils down to what is meant, in context, by “place of work”.  This is because if the place (or places) in the immediate vicinity of, but not within, the custodial institutions at which Correctional Services Department officers are directed to be overnight to respond to a call for active duty is (or are) the place (or places) of work, then the officers are, and have at all material times been, entitled to an overtime allowance at a reduced rate.  It matters not, for present purposes, what label has in practice been attached to that period of ready availability – whether ‘standby’ or ‘on call’ or, for that matter, anything else – for it is accepted that unless that availability is maintained by physical presence at the officers’ place of work, CSR 668 does not apply.

27. One matter is clear.  It is that a “fixed location” cannot for the purpose of CSR 669 be intended to include a place of work; for if it were, CSR 668 would be meaningless.  See Shau Lin Chi v Secretary for Justice [1999] 2 HKC 585.

28. That being so, the point to be addressed is the distinction intended by these two Regulations between, on the one hand, “place of work” in CSR 668 and, on the other, “another fixed location” in CSR 669.  In my judgment, the distinction is, as a matter of plain language, obvious.  It seems to me that a place of work, in this context, is a place to which the officer regularly reports for his routine active duty; and “another fixed location” is a place or area, other than one to which he thus regularly reports and other than his home, at which he is required to make himself immediately available to report for duty should he be called upon to do so.

29. The contrary contention depends upon two propositions, each of which was specifically advanced by counsel for the appellants:

(1)	that “place of work” in CSR 668 is any specific place at which the employee is required by his employer to be at a given time.  If, so the argument runs, the employee, the CSD officers in this case, has no freedom of choice and he is at a particular place under the direction of his employer he is, perforce, whilst at that place, working; he is performing a work duty: the direction, and the officer’s obedience to it, thereby turns the location into his place of work; and
(2)	that CSR 669 does not then become meaningless once one reads the words, which are clearly to be implied, “of his choice” after the words “another fixed location”.

30. There are, in my opinion, problems with this argument:

(1)	The argument stretches the meaning of “place of work” beyond common parlance.  To use an example postulated during discourse between counsel and the Court, it would mean that a hotel room where an officer was asked to sleep to await a call, should circumstances dictate one, could properly be called that officer’s place of work.  So, too, with the whole of Hong Kong Island if the officer were asked to restrict himself to that area.
(2)	The suggested construction clearly goes beyond what was envisaged when “place of work” was defined by Establishment Regulation 699, the precursor to the present CSR 668.  That Regulation defined “standby” as follows:
		‘“stand-by” is any period during which an officer is required to be present at his place of work outside his normal hours of duty but during which he is not necessarily required to perform any work; in this context “place of work” means office, workshop, launch, etc. where an officer performs his duties but it does not include his normal living quarters even though they might be next to his place of work.”
	To suggest, as the appellants must suggest – and indeed do – that that definition includes any location or area in the Region so long as the officer has been required to make himself ready there, regardless of the nature of the place and regardless of the activity in which the officer there engages, is to import a meaning that not only runs against the grain of the examples provided, but that also imports a circularity in that it would mean that the definition of “standby”, to be properly understood, would read something like this:
		‘“standby” is any period during which an officer is required to be present at his place of work … ; and any place at which he is required to be, is his place of work..’
	And if that is what was intended, one might ask why the definition did not read:
		‘“standby” is any period during which an officer is required to be at a particular place.’
(3)	To read the words “of his choice” into CSR 669 is to read in words that are not there and that sit uncomfortably with the mood of the Regulation with its use of the word “required”.
(4)	The phrase “immediately available to report for duty if required” in CSR 669 illustrates, if further illustration be needed, that duty or work in the context of these particular two Regulations is not intended to include a phase of the officer’s conduct prior to his report at a place where his routine work is normally carried out.
(5)	Mr Chain, following upon Mr McCoy’s submissions, seemed to accept that “stand-by” is not work.  If that is so, one asks, how can the place at which the person is standing by become his place of work?

31. I think it clear enough that the place of work of a CSD officer is the prison to which he is allocated.  I too would dismiss this appeal, and I agree with the costs order proposed.

Hon Tang JA:

32. This is an appeal by over 3,000 serving or former serving officers of the Correctional Services Department (“the CSD”) against the judgment of Hartmann J who dismissed their claims for damages for breach of their contracts of employment.

33. The appeal is concerned with a form of duty, which is peculiar to the CSD, and known within the Department as “overnight on call duty” or “overnight on call”.  I will refer to it as the “overnight on call duty”.  The plaintiffs are, or have been, members of the custodian stream, which comprises more than 90% of the service.  Only members of the custodian stream are required to perform overnight on call duty.

34. Put briefly, the issue between the plaintiffs and the defendant is whether such duty is covered by the 1985 Civil Service Regulations (“CSR”) 668 (the plaintiffs’ case) or 669 (the defendant’s case).  The plaintiffs’ claims straddle the 1985 and 1995 CSR.  However, it is accepted that there is no material difference between the two versions.  So, I will only deal with the 1985 CSR.

35. It is also common ground that the 1985 and 1995 CSR have contractual force.

36. CSR 668 provided:

“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.”

37. CSR 669 provided:

“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.”

38. As the judge said, the CSR apply to all government servants who are engaged in a great variety of activities.  Here we are concerned with CSD officers and therefore it is the context of their duties and responsibilities that we must consider the meaning and effect of the CSR.  For example, as the judge pointed out in para. 78 of his judgment:

“Section 141(1) of the Prison Rules still provides that:

‘Subordinate officers shall not sleep out of such quarters as the government may assign to them without the permission of a Superintendent.’” (Emphasis provided)

39. The CSD is, of course, a disciplined service and is recognised as such by government.  In para. 4 of his judgment, the judge referred to the 1979 report of the Standing Commission on Civil Service Salaries and Conditions of Service, which was adopted by government, to illustrate the government’s recognition of the special circumstances of the disciplined services:

“The disciplined services occupy a special place within the civil service, in our opinion justifiably so.  While their duties and responsibilities vary widely they all have an important role to play in the security, safety and well-being of Hong Kong and its people.  They are subject to strict disciplinary codes and their work can be dangerous, distasteful and unpopular.  Other civil servants claim that their work is dangerous, distasteful and unpopular and that they are of equal value to the community.  We consider, however, that the extent to which the disciplined services are subject to these conditions is of a sufficiently greater degree to warrant their forming a separate group within the civil service and we propose to treat them as such in this review.  [my emphasis]”

40. Then, at para. 97, the judge said:

“On behalf of the defendant, Mr Tabachnik said that the principle had been stated in unambiguous terms as early as 1971 when the Government accepted and put into effect the recommendations of the 1971 Salaries Commission.  In respect of disciplined services (such as the CSD) that Commission said (Cap. 17, paras. 367, 368 and 369):
	‘367:	The Salary scales which we are proposing for each of the Disciplined Services are based on the assumption that any unusual or special features in the hours of work to be undertaken are part of the requirements for each Disciplined Service; and these are taken into account in the Salary scales.
	368:	Under the present Regulations, on the same general principles as stated above, Disciplined Services are ineligible for overtime.  Also, basing themselves on the same general principles, the view of the Working Party was that they should continue to be ineligible, but that the basic salaries of the officers should be assessed to take into account the scale and/or irregular hours which the nature of their work makes necessary.
	369:	Whatever overtime they work on a regular basis is part of the exigencies of each Service, and is allowed for in the ‘pay for the job’.  On this ground we consider that it would be inconsistent for us to recommend any form of commuted or consolidated monthly allowance in any of the Disciplined Service.
	On the same general principles we consider that any specific allowances for Disciplined Services in respect of shift duty, night duty, stand-by duty, on call duty or any other form of hardship should be inadmissible. [my emphasis]’
These recommendations were approved by the Government-in council on 4 January 1972.”

41. In para. 98 of his judgment, he said the evidence supported the view that, the fundamental principle stated by the 1971 commission have been adhered to by later bodies tasked with assessing public service pay and conditions.

42. The judge also found that the uncontested evidence was that the practical consequence of the adoption of the recommendations has been that “at all times material to this action 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”.  The judge went on in para. 99 to quote from the uncontested evidence of Mr Duncan Pescod, a past Deputy Secretary for the Civil Service where he said:

“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 education 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. [my emphasis]” 

43. The judge also said that there was substance in the defendant’s contention that CSD officers have already been rewarded by way of salary for their performance of “overnight on call duty”.

44. Incidentally, since 1989, CSD officers performing overnight on call duty in fact received a special allowance.  The details can be found in paras 103 to 104 of the judgment.  However, this has no bearing on the question whether the plaintiffs have been compensated in accordance with their contractual entitlement.  The plaintiffs accepted that they would have to account for the allowance actually received. 

45. The overnight on call duty has been described by the judge in paras. 32 to 41 of his judgment.  The reason for the duty is that because at night there would be a materially reduced number of CSD officers on duty – sometimes a reduction of 75%, so there is the operational need to ensure that there is a reserve of officers staying close by in order, if necessary, to reinforce those who are on duty within the institution: 

“36.

CSD officers who have completed the second day shift at a penal institution, the one that ends at 20.15, are required to perform ‘overnight on call’.  They do so by remaining overnight in what earlier I have described as the ‘immediate vicinity’ of the institution where, as the defence would put it, they remain ‘on call’ in case they are required for active duty.  If they are called to active duty, they must be ready in uniform at the main gate of the institution within 15 minutes.  This 15 minutes is not absolute at all institutions.  It depends on the regime in place and may, either generally or in respect of individual officers, be varied.  But 15 minutes, on the evidence available to me, appears to be the norm.  If officers performing ‘overnight on call’ are called to active duty they are paid overtime for that active duty.  In the morning, officers who have performed ‘overnight on call’ must report to work again to perform the first shift, the shift that commences at 06.45.  At the end of that shift they are (invariably) off duty for 24 hours.”

46. The immediate vicinity means the area outside of those security walls or fences but within close proximity.  And the area is, with very few exceptions, under the management of the CSD.  This is what the judge said in paras. 37 to 41 of his judgment:

“37.	In the preceding paragraph I have said that officers who perform ‘overnight on call’ are required to remain in the immediate vicinity of the prison or detention centre.  The immediate vicinity does not mean within the institution’s security walls or fences where CSD officers parade on and off duty and where on a day to day basis the great majority of them who are posted to the institution work.  The immediate vicinity means the area outside of those security walls or fences but within their close proximity.  This area is, with very few exceptions, under the management of the CSD.  It is a restricted area in the sense that the general public are not allowed unrestricted access to it.  It is not, however, an area which houses facilities for prisoners or offices for CSD staff.  It is instead the area where, for historical reasons, the off-duty facilities for CSD staff have been situated.  By ‘facilities’ I mean accommodation facilities of various kinds, club and messing facilities, sporting venues and such general residential facilities as parking areas, gardens and pathways.
38.	Officers who have their homes within the immediate vicinity of a penal institution may return to their homes and perform ‘overnight on call’ within their domestic surroundings.  No claims have been made by the plaintiffs when they have been able to perform the duty at home.
39.	However, those officers who do not live in the immediate vicinity must perform ‘overnight on call’ away from their homes.  All the plaintiffs’ claims relate to the performance of ‘overnight on call’ in these circumstances.
40.	Officers who perform ‘overnight on call’ away from their homes may enjoy all the facilities available to officers of their rank within the immediate vicinity.  They do not have to remain in uniform.  They may enjoy the facilities provided by the clubs or messes, they may play sport, they may, depending on the practicalities involved, receive visitors : spouses, family, friends.  If a colleague has his quarters (his home) in the immediate vicinity, they may visit him there and act as freely as if paying a social call on a colleague living anywhere else in Hong Kong.  They may — subject to the discretion of their superior and provided they ensure they can report for active duty within the required time — leave the immediate vicinity, for example, to do shopping.  In this latter regard, it was emphasised by the defence that, by way of illustration, officers serving at Victoria Prison in Mid-Levels are free if they wish to frequent the nearby places of entertainment in Lan Kwai Fong.
41.	However, as the plaintiffs’, through their witnesses, have pointed out, having regard to the relatively isolated location of most penal institutions in Hong Kong and the overriding obligation to be available for active duty within about 15 minutes, it is rarely possible to leave the immediate vicinity of an institution and on a day to day basis it is not feasible to have family and friends visiting.”

47. Mr McCoy, SC, leading counsel for the appellants, argued that the overnight on call duty was in fact the stand-by duty under CSR 668 such that the plaintiffs are entitled to be paid the allowance thereunder.

48. The only type of stand-by duty within the CSD is known as sleep-in, stand-by duty.  Such a duty is described by the judge in para. 43 to 46 of his judgment:

“43.	‘Sleep-in, stand-by’ has always been performed by Assistant Officers I and II, known as rank and file officers, in respect of which they have received a reduced overtime allowance.
44.	The creation of the duty of ‘sleep-in, stand-by’ was a consequence of rioting that took place in Stanley Prison in 1973.  The rioting demonstrated to the CSD that in maximum security prisons (where the prisoners present a greater potential risk) full security could not be assured at night, when staffing levels may be reduced by 75%, by relying solely on ‘overnight on call’ officers who could take up to 15 minutes to present themselves at the main gate.  What was required was not a group of officers outside of an institution’s security walls or fences who were constrained only to be available in case of need but rather a group of officers stationed inside the security walls or fences (and therefore at their ‘place of work’) who would be on ‘stand-by’ and therefore immediately available not simply to report for duty but to actually commence that duty.
45.	In a memorandum dated 25 February 1976, the Commissioner of Prisons said the following :
	‘The implementation of stand-by duty for secure institutions will come into operation w.e.f. 1st April 1976.  The following rules are issued to heads of institutions for guidance:-
	(a)	Definition – Stand-by duty means, the duty performed when an officer has to be at his place of work, though not working, nevertheless, is available for work if required.
	(b)	Purpose – To have a reserve of staff immediately available in secure institutions at night, i.e. from lock-up to unlock, to respond to any emergency situation requiring additional staff.
		…
	(g)	Sleeping-in – Staff on stand-by duty will be allowed to sleep in the Stand-by Room and will be allowed to take off their outer garments, but must be prepared at all times to respond to any emergency arising within their respective institutions as quickly as possible.’
46.	‘Sleep-in, stand-by’ is performed at only a limited number of prisons; as I understand it, at maximum security institutions and Victoria Prison.”

49. In para. 47, the Judge set out the differences between the two types of duties.  However, it is clear that the two expressions, stand-by and on call are not terms of art and can be used interchangeably.

50. Mr McCoy further argued what distinguished CSR 669 and CSR 668 is that under CSR 669, an officer is entitled to absolute freedom of movement and choice of activities subject only to the restriction that an officer on call must ensure that he is continuously and immediately available to report for duty if required. 

51. Mr Benjamin Chain, junior counsel for the appellants, has argued that the requirement that an officer should be continuously and immediately available to report for duty would be satisfied if an officer is able to report for duty within 1 or 2 hours.  He further contended that if an officer was required to report within the norm of 15 minutes, the restrictions on his freedom would be such as to make the geographical area to which he is confined by the imperative of time his place of work.  He submitted that it is a matter of degree.  But, if 1 or 2 hours were to be the limit then an officer could be anywhere within the Special Administrative Region, and that as a matter of common sense could not be regarded as his place of work.

52. Having regard to the operational imperative of the CSD, I agree with the judge that 15 minutes is the norm and generally speaking, if one is unable to report for duty within 15 minutes, one cannot be regarded as being immediately available.

53. Mr McCoy also argued under CSR 669 an officer is entitled to be at a fixed location of his choice, or put another way, CSD is not entitled to require an officer to be at any particular place.  He argued that if the CSD required an officer to be at a particular place, the requirement would turn that place into his place of work, therefore the officer could be said to be standing by under CSR 668.

54. Mr McCoy submitted that if an officer was required to be on call at home, the fact that he was required to be on call at home would turn his home into his place of work.  He also submitted, rightly I think, an officer may be required to work in a variety of places such that, for example, an officer is working in the dock of the court when he is standing guard there.

55. Mr McCoy has referred us to the decision of this court in Shau Lin Chi v The Secretary for Justice [1999] 2 HKC 585.  It is sufficient to refer to the headnote:

“Held, dismissing the appeal:

‘Another fixed location’ could not include an officer’s place of work.  If the whole of the regulation was read, the obvious intent was that when the officer was ‘on call’, he was continuously and immediately available to report to his workplace for duty if required from either home, another place or through the medium of a paging device.  Another location could not in those circumstances be at the very place where he had to work (at 587I-588A, 588E, G-H).”

56. I agree that the fixed location must be a place other than the place where the officer might be required to report for duty.  That is to say, the fixed location cannot be the very place where he had to report for work.  Here, it is clear from the judgment that the facilities provided to an officer who was on call was at a place other than the place where he would be or might be required to report for duty.

57. Whether one can read into CSR 669 an absolute freedom of movement on the part of the officer as contended for by Mr McCoy is essentially a matter of construction.  For the reasons given by the judge as well as by Barma J in Leung Kam-keung v The Secretary for Justice for and on behalf of The Director of Housing, HCMP 4920 of 2002 on 3 November 2004 that:

“As a matter of ordinary English, the three alternatives can and should be read disjunctively, so that each of them is to be read together with the words ‘is required to be’.”

I am of the view that under CSR 669 an officer may be required to be on call at home or in some other fixed location nominated by the CSD.  In other words, the officer’s freedom of movement can be restricted.

58. In support of his argument that a location chosen by the CSD would turn that location into a place of work although no actual work is done, Mr McCoy has referred us to the decision of the House of Lords in Suffolk County Council v Secretary of State for the Environment and Another [1984] ICR 882 where Lord Templeman said at 890E:

“… Employment involves work or some other activity carried out for the purposes and at the behest of the employer.  Hours of employment do not include hours devoted to an activity which is pursued for the benefit and by the choice of the employee.  A regular fireman is employed when he is on duty, whether he is fire-fighting or sleeping, because he is carrying on both those activities under the instructions of his employer the council.  While he is on duty, that is to say while he is completing his “hours of employment,” he commits a breach of his contract of employment if he works otherwise than for the fire authority or if he sleeps at a time or in a place contrary to his instructions from the fire authority.  While he is not on duty he may do as he pleases; the hours in which he is not on duty are not hours of employment by the council.  Similarly with a retained fireman.”

59. Mr McCoy argued that a CSD officer is not different from a regular fireman.  Thus, he is on duty where he sleeps in a place designated by his employer.  But, an officer who is on overnight on call duty is on duty.  What is critical to this appeal is whether the officer is entitled to be paid for performing such duty.  On my construction of CSR 669, the officer has agreed that he was not entitled to be paid.

60. Further, what we have to consider is whether for the purpose of overnight on call duty, the facilities provided to an officer could be said to be his place of work either because of Shau Lin Chi or that it falls within CSR 668.  So far as Shau Lin Chi is concerned I have already explained why the judge’s decision is consistent with it.

61. I now turn to consider CSR 668.  I believe that when CSR 668 and 669 are read in the context of CSD officers, a place of work within the meaning of CSR 668 would not include the fixed location provided to an officer while he is on overnight on call duty.  It is from that fixed location which an officer is required to be continuously and immediately available to report for duty at his place of work.

62. Mr McCoy argued that CSR 669 should not be read such that the freedom of movement of an officer is affected.  But employment normally limits one’s freedom of movement.  So it is not the restriction on the freedom of movement as such which is critical.  What is critical is whether the duty which resulted in a restriction of freedom is one for which an officer is entitled to be paid any recompense under his contract of employment.

63. Mr McCoy has also referred us to Landeshauptstadt Kiel v Jaeger [2004] ICR 1528, in particular, para. 30 of the opinion of the Advocate General and para. 63 of the judgment:

“	30.	To my mind, periods of time when an employee is in the workplace and at the employer’s disposal constitute working time even if the employee is not carrying out his duties, since the employer has the power to assign tasks to the staff at any time.  The same can be said of times when an employee is at work and carrying out his activity but is not at the employer’s disposal because he has a wide autonomy to obtain a specific result, and of times when he is at the employer’s disposal and is carrying out his duties, but is not in the workplace.  Therefore, it is a necessary precondition that two of the requirements are met and, in the majority of cases, that will be sufficient for such periods to count as working time within the meaning of article 2(I) of Directive 93/I04.
	…
	63.	According to the court, the decisive factor in considering that the characteristic features of the concept of working time within the meaning of Directive 93/I04 are present in the case of time spent on call by doctors in the hospital itself is that they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need.  In fact, as may be inferred from SIMAP [Sindicato de Médicos de Asistencia Pública] at para. 48, those obligations, which make it impossible for the doctors concerned to choose the place where they stay during waiting periods, must be regarded as coming within the ambit of the performance of their duties.”

64. But as the judge has explained Jaeger’s case does not advance the plaintiffs’ case.  The European Court was concerned with the interpretation of Directive 93/I04/EC in the context of labour law designed for the protection of the health and safety of employees. Here we are concerned solely with the contractual question, namely, whether the plaintiffs are contractually entitled to be paid for the performance of the over night on call duty.

65. After the conclusion of the hearing, the plaintiffs sought leave to submit further written submissions.  We gave leave and the further submissions were submitted on 7 October 2005 and on the same day the defendant replied to those submissions. 

66. The plaintiffs’ written submissions contained little which is new.  Essentially, it repeated the plaintiffs’ oral submission that if an officer was required by CSD to be in a fixed location, whether on call or stand by, he could be said to be at his place of work.  That it did not matter whether he was actually working.  Also “at” can be approximate, so that in the phrase “at his place of work” the officer need not actually be in his place of work, it is sufficient if he was in the vicinity of his place of work.  Read this way, it seems that there is little difference between CSR 668 & 669; unless, of course, one were to agree with the plaintiffs’ construction of 669.

67. The plaintiffs further submitted that is ‘immediately available’ under CSR 669 is satisfied if an officer is able to report for duty by electronic means, e.g. by a pager.  In other word, he need not report for duty physically.  Presumably, this point was made to support Mr. Chain’s argument that under CSR 669, an officer could be said to be immediately available if he could report for duty within 1 or 2 hours.  I do not accept the fact that an officer might be on call through the medium of a pager meant that he need not report for duty physically.  That argument flies in the face of the reason for the duty.

68. It is also submitted that the question of restriction on an officer’s freedom is a matter of degree, not only in relation to “areas of restraint” (e.g. within Hong Kong Island, not Macau etc), but that the frequency of such duties is also relevant.

69. I do not agree that frequency is relevant.  Anyway, there is no evidence of any abuse of the overnight on call duty by the CSD.  Nor are we concerned with any hypothetical extreme case.  One example given was that, an officer is told to wait in the rain overnight on call.  We do not believe such examples are helpful to the construction of CSR 669.

70. For the above reasons, I would dismiss the appeal, and make an order nisi that the respondent is to have the costs of the appeal, to be taxed, if not agreed.