HU KING SHUK JACK v. SECRETARY FOR THE ENVIRONMENT, TRANSPORT AND WORKS

HCAL74/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 74 OF 2005

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DECISION

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1.  The applicant worked as a “resident site staff” (RSS) for an engineering consultancy firm in connection with a government construction project under the Highways Department.  By this application, he applies for leave to judicial review the decisions of (1) the Secretary for the Environment, Transport and Works, and (2) the Highways Department in relation to the effective date for the reinstatement of the status of resident site staff.

2.  During the hearing of the applicant’s application for leave to apply for judicial review, it transpired that there was other relevant documentation, including a letter from the Secretary for the Environment, Transport and Works in response to enquiry and complaint raised by Legislative Councillors on behalf of the applicant.  On my direction, the applicant filed a supplemental affidavit on 15 September 2005 exhibiting further relevant documents and information. 

Background

3.  The relevant background leading to this application can be summarized as follows.

4.  From time to time, the Environment, Transport and Works Bureau (“the Bureau”) issue Technical Circulars on works of the Bureau.  Following the organizational changes in the Government Secretariat on 1 July 2002, the Bureau issued Technical Circular (Works) No. 28/2002 on 9 July 2002.  The relevant part of paragraph 5 of explains that:

“Technical circulars on works (TCW) set out the procedures by which policy decisions are put into practice by Works Departments.  As a general principle, where a technical circular sets out procedures which should be followed, this will be in the form of an instruction for Works Departments, …”

5.  TWC No.31/2003 deals with direct employment of RSS by consultants to supervise construction work under government projects.  Paragraphs 6 and 7 explain that under the scheme of direct employment of RSS by consultants, the consultants are required as part of their services to recruit, employ and manage RSS to deal with site supervision.  Subject to the minimum qualification and experience requirements in the consultancy agreements, the consultants shall set their own recruitment criteria and shall be responsible for employing and managing the required RSS.  The RSS are the consultants’ employees, but the relevant government department retains a right of disapproval of individual staff whom it considers to be unsuitable.

6.  Paragraphs 8 to 15 set out the principles governing the remuneration of the consultants for their services associated with the RSS.  In brief, the government will reimburse the consultants the actual payment made to the RSS, subject to an annual reimbursement ceiling for the whole RSS establishment.  The reimbursement ceiling is calculated by reference to the monthly “cap” for each individual RSS employed by each consultant.  Such monthly cap is fixed by reference to the prevailing terms offered to Government staff.  Although the annual total reimbursement receivable for the whole RSS establishment of each consultant is capped, the consultant is free to distribute that total amount among the individual RSS in its establishment in whatever share it deems appropriate.     

7.  Under TCW No. 31/2003A, which replaces Appendix B to TCW No.31/2003, RSS are categorized into three types.  “Type A” RSS are those who were employed as RSS for government consultancy agreement during 16 February and 15 June 2000 and have no break in RSS service exceeding four calendar months since 16 June 2000.  “Type B” RSS are those who were employed as RSS for government consultancy agreement during 1 December 2002 and 31 March 2003 and have no break in RSS service exceeding four calendar months since 1 April 2003.  “Type C” RSS are those who are not qualified to be “Type A” or “Type B” RSS.  Paragraph 2 of TCW No.31/2003A provides that the government may exercise discretion to treat a “Type C” RSS or “Type B” RSS as a “Type A” RSS if the break in the RSS service exceeds four calendar months through no fault of the RSS. 

8.  On 31 January 2005, the Bureau issued supplementary guidelines on reinstatement of Type A/Type B RSS status.  Among other matters, it stipulated that the reinstatement should take effect from the date of approval and there would be no back-payment of salary for the period prior to the granting of approval.

The applicant’s intended judicial review application

9.  The applicant’s case for seeking judicial review is this.

10.  On 7 July 2003, the applicant became employed by an engineering consultant firm, Ove Arup & Partners (“Arup”), as a RSS in connection with a government construction project under the Highways Department.  Prior to that, the applicant had been unemployed since 1 January 2003.  As the break in service was longer than four calendar months, the applicant, who was formerly a “Type A” RSS became a “Type C” RSS.

11.  According to the applicant, before entering into the employment contract, he had in June 2003 specifically requested Arup to apply to the Highways Department to review his case and to reinstate him to “Type A” status in accordance with paragraph 2 of TCW No.31/2003A.  His request was declined with reason. Hence he accepted the employment as a “Type C” RSS.

12.  The applicant said that, jointly with other RSS, he continued to ask Arup’s directors to forward to the government their requests for review of their status.  The documents filed show the following:

(1)	By memorandum dated 17 December 2003, the applicant requested Arup to petition to the Highways Department for reinstatement of his RSS status.  Attached to the memorandum is a letter dated 16 December 2003 setting out the reasons for seeking reinstatement.
(2)	By an internal memo of Arup dated 22 March 2004, ten RSS, including the applicant, were short-listed as appropriate candidates for making an appeal to the Highways Department for exercising the discretion under TCW No. 31/2003A.  The internal memo stated that further review by reference to their CVs would be carried out and the short-listed staff had to supply more documentary evidence in respect of their efforts to find employments.
(3)	By letter dated 13 September 2004, the applicant supplied to Arup a statement justifying that the break in his service was due to no fault of his.
(4)	By letter dated 3 February 2005, the applicant urged Arup to submit to the Highways Department his application for his reinstatement.
(5)	Afterwards on 23 February 2005, Arup did make a submission on behalf of the applicant and forwarded his papers to the Highways Department.
(6)	By letter dated 19 April 2005, the Highways Department granted approval for the reinstatement of the applicant’s status with immediate effect, namely, 19 April 2005.

13.  The applicant takes the view that his reinstatement should be retrospective and dated back to 7 July 2003.  He contends that since that date, his salary and other employment benefits should be calculated on the basis of a “Type A” RSS.  He had sought the assistance of various Legislative Councillors with a view to having a back payment of his salary and emoluments.  On 8 August 2005, the Secretary General of the Legislative Council Secretariat replied to the applicant, setting out the responses received from the Director of Highways Department.

14.  On 16 July 2005, the applicant issued the present application. 

15.  The crux of the applicant’s ground for judicial review is that the Bureau and the consultant had colluded to withhold his and other RSS’s applications for reinstatement.  It is said that the government did not like reinstatement applications and the consultants were aware of this, hence Arup was reluctant to submit the reinstatement application on his behalf.  The applicant also says that the Bureau did not act even-handedly in that approvals for reinstatement were given to other applicants promptly and in the absence of justifications.

The Secretary’s reasons

16.  From the letter dated 24 June 2005 from the Secretary for the Environment, Transport and Works in reply to the enquiries of Legislators and the letter dated 8 August 2005 from the Secretary General of the Legislative Council Secretariat to the applicant, the Secretary’s reasons for not acceding to the applicant’s request to backdate his reinstatement are as follows:

(1)	Arup had advised that the applicant first requested for reinstatement of RSS status in December 2003.  A second request for reinstatement was received in September 2004.
(2)	Arup did not forward the two requests to the Highways Department as it considered that the applicant had provided insufficient information.
(3)	Arup first referred the applicant’s reinstatement application to the Highways Department on 23 February 2005.  At the request of the Department, further documents were provided through Arup to demonstrate that the break in service was through no fault of the applicant.
(4)	The applicant’s reinstatement application was processed according to the guidelines issued on 31 January 2005. Based on the information supplied by the applicant, the Highways Department reinstated the applicant on 19 April 2005.
(5)	In accordance with the guidelines, the reinstatement took effect as from the date of approval.
(6)	The Department did not agree to back date the approval granted to the applicant as it considered there was no delay on the part of the Administration.

17.  The Secretary had in her letter dated 24 June 2005 also dealt with the cases cited by the applicant as showing uneven treatment of RSS reinstatement applications.  It was pointed out that none of the cases involved back-dating the approval for reinstatement.

Reasons for decision on the leave application

18.    In order that leave to apply for judicial review can be granted, the applicant must show that his intended judicial review application is potentially arguable: Ho Ming Sai & Others v. Director of Immigration [1994] HKLR 21.  

19.  In my view, the applicant has failed to show that he has an arguable case for applying for judicial review and for granting the relief he seeks.  My reasons are set out hereafter.

20.  The applicant’s employment was with Arup.  The terms of his employment, including salary and other employment benefits were governed by the contract between him and Arup.  In July 2003 when he commenced working for Arup, the applicant had accepted the employment on the basis of a Type C RSS.  Accordingly, any request for reinstatement that he had made to Arup in June 2003 before the employment is irrelevant.

21.  The materials before the court do not show that Arup was contractually bound to forward or make application for reinstatement of status on behalf of the applicant.  Even if Arup were contractually bound, Arup’s failure to do so would only render Arup liable in breach of contract.  It does not give the applicant a right to judicial review the Secretary and to seek relief of back payment from the government. 

22.  In any case, given that after the commencement of the employment, the applicant’s first request to Arup together with supporting statement was made in December 2003, there is no basis for back-dating the reinstatement to July 2003.

23.  It is undisputed that Arup did not make any reinstatement application for the applicant until February 2005.  Arup’s explanation is that the applicant had previously not given sufficient information on his attempts to find employment that was connected with government projects.  It is not clear whether the applicant takes issue with this view.  However, looking at his 16 December 2003 statement, it does appear that there were no details on his attempts to find employment.  What the applicant said was he could not remember the names of all the government projects he had applied for during the six months’ break in service, and he named four firms to which he had sent applications, but without giving the dates. In the present application, the applicant argues that he was never told what concrete materials were required to support the application. That however, does not address the point that without the details, the reinstatement application would have little prospect of success. 

24.  Even if Arup were at fault and had delayed in not forwarding the applicant’s application to the Highways Department, the fault would lie with Arup.  As noted above, it is a fact that the applicant’s application was only submitted to the Highways Department in February 2005.  There is no complaint of any delay in the Department’s processing of the application after Arup submitted it.

25.  The applicant had complained of collusion between Arup and the government in withholding his application, but the materials before the court do not bear this out. 

26.  The applicant also complained of procedural unfairness and uneven treatment, but again the materials before the court did not bear this out.  On the other side, the Secretary had in her letter dated 24 June 2005 dealt with the cases cited by the applicant.

27.  To the extent that the applicant is seeking to challenge the policy or guidelines that reinstatement should take effect from the date of approval unless the Administration has been guilty of delay, the applicant has not put forth any case for contending that the policy is either unlawful or Wednesbury unreasonable.   

Conclusion

28.  The applicant has failed to make out a case that is potentially arguable.  His application for leave to apply for judicial review is therefore refused.