1997 A.L. No. 90
IN THE HIGH COURT OF HONG KONG
COURT OF FIRST INSTANCE
ADMINISTRATIVE LAW LIST
Coram: The Hon. Mr. Justice Keith in Court
Date of Hearing: 17 November 1997
Date of Handing Down of Judgment: 25 November 1997
J U D G M E N T
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 judicialreview of the decision of the Chief Executive to promulgate two instruments, and of two decisions made by the Secretary for the CivilService in the aftermath of the recent challenge by the A.E.C.S. to the Government’s attempts to localise the Public Service. Anoral hearing of the application was requested by the Respondents, and in view of the large number of decisions challenged, I decidedthat 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) (“theExecutive 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 investigationand adjudication of disciplinary offences committed by public servants. They were both intended to replace the provisions relatingto 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 removalof holders of public office otherwise than “in accordance with legal procedures”, and are therefore contrary to Art. 48(7) of theBasic Law. Given the low threshold of arguability, Mr. Joseph Fok for the Chief Executive did not seek to argue the merits of thisargument. Instead, he took two points. First, the A.E.C.S.’s challenge amounted merely to a challenge to the constitutionality ofthe 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 Executivehad express power to make the Regulation, namely section 21(1) of the Executive Order. Secondly, until action is taken pursuant tothe 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 arguablethat what the A.E.C.S. is challenging is not the Chief Executive’s power to make the Executive Order and the Regulation, but whetherthe provisions they contain are contrary to the Basic Law. And it is certainly arguable that public servants currently in post needto know now the circumstances in which they can be dismissed, suspended or otherwise disciplined, and whether the provisions relatingto 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 instrumentsuntil 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 ExecutiveOrder by being appointed to the Public Service, or by being dismissed, suspended or otherwise disciplined. They would only be affectedby the Regulation if they are subject to the disciplinary procedure which it provides for. There is no evidence that any member ofthe 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 legalityof the two instruments is challenged, namely that they are retrospective in operation: although they were promulgated on 9th July1997, 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 adverselyaffected by either of the two instruments between those two dates. Does that mean that the A.E.C.S. does not have the standing torely 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:
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 previouschallenge by the A.E.C.S. to the Government’s attempts to localise the Public Service (CA 260/95), to be an accurate statement ofthe law. Mr. Fok forcefully argued that this statement cannot have been intended to be read literally, because otherwise a respectablebody, with arguable merits, has standing irrespective of its interest in the subject-matter of the dispute. The statement reliedupon was made in the context of a discussion about the standing not merely of representative bodies but also of amorphous pressuregroups: 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 languageof 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 thetwo 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 July1997. This memorandum announced revised arrangements for overseas officers who transfer to local conditions of service. One of thosedecisions has been overtaken by events. That decision was contained in para. 3(f) of the memorandum. The decision was not to acceptan application for transfer to local permanent and pensionable terms for the time being. However, on 15th November, the Secretaryfor the Civil Service announced the lifting of the temporary suspension on the transfer to local permanent and pensionable termswith 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:
This decision was the same as one included in the memorandum announcing the original transitional arrangements for overseas officerswho transferred to local conditions of service. That memorandum was issued on 13th September 1993, and the decision read:
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 AmendedNotice. Leave to apply for judicial review of that decision was refused. Judgment on the application was reported at  1 HKLR 75 at p.79:
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 isthat it “abrogates accrued contractual rights”. This is a similar argument to an argument in the previous case about the prohibitionon transferring officers carrying forward untaken leave. Both the High Court and the Court of Appeal agreed that that prohibitionwould have been unlawful if it had involved the abrogation of accrued contractual rights. What they disagreed on was whether theprohibition had in fact resulted in accrued contractual rights being abrogated. The Court of Appeal held that the prohibition hadinvolved 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 differencebetween contractual rights relating to leave, which are literally accrued by virtue of continuing service, and contractual allowancesrelating to passages and baggage, which are acquired by virtue of the officer’s status as a public servant. Accordingly, the applicationfor 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 decisionof 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 Orderand 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 regulationswas 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 necessaryfor 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 currentapplication. 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 leavefor 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 ofApplication but which do not feature in the Supplementary Notice. Mr. Scott confirmed that the A.E.C.S. is at present applying forleave to apply for judicial review only of those provisions of the Executive Order and the Regulation which are referred to in theSupplementary 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:
Section 15 of the Executive Order provides:
Section 16 of the Executive Order provides:
Reg. 14 of the Regulation provides for the withholding of an officer’s salary if he is convicted of a criminal offence and the convictionmay 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:
Section 101D provides:
I do not think it arguable that the provisions in the Executive Order and the Regulation are incompatible with Art. 11(6) or section101D. 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. Theydo not refer to disciplinary sanctions imposed as a result of the commission of a disciplinary offence. In any event, the withdrawalof salary provided for by reg. 14 does not amount to “punishment”: rather, it is in the nature of a provision permitting the withdrawalof a contractual benefit. Accordingly, I refuse to grant the A.E.C.S. leave to apply for judicial review of these provisions in theExecutive Order and the Regulation.
16. Section 17 of the Executive Order provides:
This provision is said to be incompatible with Art. 8(2) of the Bill of Rights, which provides:
Art. 8(3) of the Bill of Rights provides that this right
In my view, it is arguable that section 17 is incompatible with Art. 8(2), because the restriction in it does not come within theonly relevant exception in Art. 8(3), namely that it is “provided by law”, since it is arguable that the Executive Order itself doesnot have the force of law. I do not overlook Mr. Fok’s argument that section 17 does not actually prohibit anyone from leaving HongKong: it simply requires the officer to obtain permission before he does so. In my view, it is certainly arguable that the need toobtain permission before leaving Hong Kong is a restriction on the right to leave Hong Kong. Accordingly, I grant the A.E.C.S. leaveto apply for judicial review of section 17 of the Executive Order.
17. Section 20 of the Executive Order provides:
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 Executiveonly, and to preclude those who are Hong Kong residents from exercising their right to make complaints in connection with their employmentto 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 Executivegave 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 residentfrom 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
Art. 48 lists the powers and functions which the Chief Executive “shall exercise”, and includes in (13) the power and function “tohandle 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 tobe incompatible with Art. 11(2)(d) of the Bill of Rights which provides, so far as is material:
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:
The right of access to public service which Art. 21(c) protects include access to the terms and conditions of service enjoyed by otherofficers. 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 withArt. 21(c).
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 shouldbe given for the future conduct of the case. In particular, it may be that it would be appropriate to order an expedited hearingof 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 todecide when the matter should be restored for further hearing. There was talk in the course of the hearing about hiving off the decisionsof the Secretary for the Civil Service which were challenged. Since the application for leave to apply for judicial review of thosedecisions 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 whichI 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:
Mr. M.R. Scott, Vice-President of the Association of Expatriate Civil Servants of Hong Kong, for the Applicant
Mr. Joseph Fok, instructed by Messrs. Wilkinson & Grist, for the Respondents