Leung Sze Ho Albert v. The Bar Council of the Hong Kong Bar Association

CACV 246/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 246 OF 2015

(ON APPEAL FROM HCAL NO 63 OF 2014)

_______________

_______________

Before : Hon Cheung CJHC, Hon Barma JA, and Hon Poon JA in Court

Dates of Hearing : 12 and 13 September 2016

Date of Judgment : 28 October 2016

_______________

J U D G M E N T

_______________

Hon Cheung CJHC :

1.I agree with the judgment to be given by Poon JA.  Since we are differing from the judge below (Godfrey Lam J) on an important point involving the proper interpretation of article 33 of the Basic Law, I would like to add a few words of my own on article 33.

2.Article 33 states that “Hong Kong residents shall have freedom of choice of occupation”.  It is found in chapter III of the Basic Law which sets out the fundamental rights and duties of the residents of the Hong Kong Special Administrative Region.  Article 33, like other provisions in chapter III, should therefore be given “a generous interpretation” in order to give to Hong Kong residents “the full measure” of the right and freedom so constitutionally guaranteed: Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, 29A‑B.  It does not follow, however, that the origin and drafting history of article 33 should be ignored. Rather, the proper interpretation of article 33 should be informed by its context and purpose.  As Fok JA (now Fok PJ) pointed out in the Court of Appeal in GA v Director of Immigration, CACV 44‑48/2011, 27 November 2012, paragraph 139, article 33 has its genesis in article 3(5) (JD ref 17) of the Joint Declaration and annex I section XIII (JD ref 151) to the Joint Declaration, both of which refer to various rights and freedoms including that “of choice of occupation”.  No wider right to work is expressly referred to.  In the same paragraph, Fok JA went on to point out in his judgment (with which both Stock VP and Kwan JA agreed) :

“ … At the time of the Joint Declaration, the significance of a freedom of choice of occupation was the practice in the PRC’s planned economy of assigning students joining universities to specific fields of studies and occupations after graduation: see Chan and Lim (General Editors): Law of the Hong Kong Constitution (Sweet & Maxwell, 2011) at §24.004.”

3.Importantly, in paragraph 143, Fok JA concluded :

“ In my view, therefore, the right conferred by BL33 is a passive or negative right of freedom to choose an occupation, but does not imply a right to take up available employment in the first place. Nor does it confer an unqualified right to obtain employment, which is necessarily subject to market forces and also subject to legal constraints, such as visa and qualification requirements.” (emphasis added – see below)”

4.Fok JA elaborated in a footnote :

“ The right being ‘passive or negative’ in the sense of prohibiting any interference with the freedom of choice as opposed to imposing an active or positive duty on the part of the Government to provide an employment.”

5.In other words, what article 33 seeks to achieve “is to protect against conscription to particular fields of occupation”: para 142.  See also Cheng Chun-ngai Daniel v Hospital Authority HCAL 202/2002, 12 November 2004, para 55, where Hartmann J (as he then was) said :

“ … even when [article 33] is interpreted generously and purposively, it is not to be interpreted in an active sense, by which I mean that it does not guarantee the right of employment in any particular field of occupation. Whether employment can in fact be obtained will depend on the laws of supply and demand as they apply in the market place. The article, in my view, is to be interpreted rather in the light of what it seeks to prevent; namely, outside of issues of national service, should they ever arise, any form of conscription to particular fields of occupation.”

6.Naturally, the next question is what constitutes “conscription” to particular fields of occupation which, as Hartmann J recognised, can take more than one form. If a university student wants to be a teacher after graduation but is told by the State that he has to work as a farmer, conscription in that context comprises two things.  First, he is not permitted to work as a teacher even if such a job is otherwise available (subject to qualification requirements etc). Secondly, he is compulsorily required to work as a farmer even if that is against his wish.  To effectively prevent such a practice from being adopted in post‑1997 Hong Kong, what is required, one would have thought, is not only a constitutional guarantee that the student will not be forced to work as a farmer against his wish, but also a guarantee that he will not be prevented from taking up an available teaching job (if otherwise qualified to do so etc).  This second limb is as important as the first because without it, the pressure, albeit indirect, on the student to take up the farming job offered by the State would be tremendous.

7.Free from authorities, therefore, article 33 – bearing firmly in mind that it should receive a generous interpretation – should arguably also comprise two limbs: first, a resident shall not be forced to work in any or any particular field of occupation against his wish.  Secondly, a resident shall have the freedom to work in any or any particular field of occupation of his choice (assuming work is otherwise available and he is otherwise qualified to do so etc).  This second limb, it should be pointed out, is quite different from, and indeed far less extensive in content than, a right or guarantee that there will be available employment to take up, or in other words, a general right to work.  The latter is a right guaranteed under article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which thus far has no domestic force.

8.The above appears to be the views of the learned judge below.  In paragraph 68 of his careful judgment, G Lam J said this :

“ … Art. 33 refers to freedom of choice of occupation. That freedom is in my view curtailed both where a person is compelled to take up an occupation against his wishes, and where he is prevented from pursuing an occupation of his choice. …”

9.A similar view, in the context of someone being “forced out” of his choice of occupation, has also been expressed by the learned author of chapter 25 in the book (now in its 2^nd edition) cited by Fok JA in his judgment, that is, Chan & Lim (ed), Law of the Hong Kong Constitution, para 25-017 :

“ Arguably, the right to freedom of choice of occupation has to include the right not to be forced out of one’s choice of occupation already made. It is a natural corollary of the right exercised at a point of entry into a workforce which has to also extend to the continued enjoyment of the right until the individual freely chooses to exit or is dismissed without prejudice to his/her entitlement to seek employment with other employers in his/her chosen occupation. If one is pushed out of the profession or vocation, for instance due to governmental administrative measures that make the occupation untenable, in addition to engaging a further ‘right to work’, it can legitimately give rise to a cause of action for the violation of the freedom to choose occupation.”

10.However, for the courts, the matter is not free from authorities.  With respect, this is where we differ from the learned judge.  As mentioned, in paragraph 143 of GA already quoted above, Fok JA, after concluding that article 33 is a passive or negative right of freedom to choose an occupation in the sense he elaborated in his footnote, went on to add that it “does not imply a right to take up available employment in the first place” (my emphasis).  This addition, on my own reading, ruled out the possibility of article 33 having the second limb that I mentioned above, ie, that a resident shall have the freedom to work in any or any particular field of occupation of his choice (if work is available etc).  This reading is reinforced by the Court of Appeal’s rejection of the appellants’ contention that they had a constitutional right under article 33 to take up employment if and when available – they were not saying the Government had a duty to provide them with employment where there was none available.

11.Pausing here, the Court of Appeal’s decision in GA is binding on this court (as well as the learned judge below), unless it is shown to be “plainly wrong”. And there is no question of that decision being plainly wrong as what was said by Fok JA in the Court of Appeal was expressly endorsed by Ma CJ when the case went on appeal to the Court of Final Appeal: (2014) 17 HKCFAR 60.  In paragraph 73 of the Court of Final Appeal’s judgment, the Chief Justice specifically approved what was said by Fok JA in paragraphs 139‑143 of his judgment which the Chief Justice quoted in full in the preceding paragraph.  Again, this endorsement formed part of the ratio decidendi of the Court of Final Appeal’s decision in rejecting the appellants’ contention that they had a right under article 33 (whether directly – as they contended before the Court of First Instance and the Court of Appeal, or indirectly under article 6 of the ICESCR as applied to Hong Kong via article 33 – as they apparently argued in the Court of Final Appeal as per paragraph 70 of the court’s judgment), to take up available employment in Hong Kong.

12.In other words, there are two authorities on the true interpretation of article 33 which are binding on this court as well as the learned judge.

13.In those circumstances, the applicant’s reliance on article 33 in the present case is doomed from the beginning.

Hon Barma JA :

14.I agree with the judgments of the Chief Judge and of Poon JA.

Hon Poon JA :

A. Appeal

15.By a decision reached at its meeting on 6 March 2014, the Bar Council of the Hong Kong Bar Association resolved to refuse the application of the applicant, then a practising barrister, to engage in neuro-beautology as a supplementary occupation under Paragraph 23 of the Code of Conduct of the Bar (“the Decision”). The applicant was informed of the Decision on the following day.

16.The relevant parts of Paragraph 23 of the Code read :

“ 23. (1) A barrister may not, without the permission of the Bar Council, or save as provided for in Annex 4A to this Code, become or remain a practising barrister unless he is willing for his practice to be his primary occupation; and he may not engage directly or indirectly in any other occupation if his association with that occupation may adversely affect the reputation of the Bar.

(2) A practising barrister must not engage directly or indirectly in any other occupation if his association with that occupation may prejudice his ability to attend properly to the interests of his clients.

(3) (a) A practising barrister who wishes to engage in a supplementary occupation should do so only in accordance with the general or special permission of the Bar Council.

(b) Supplementary occupations for which the Bar Council has granted general permission are set out in a List of Approved Supplementary Occupations in Annex 4 and in the List of Approved Occupations in Annex 4A to this Code.  A practising barrister who wishes to engage in an occupation not listed in Annex 4 or Annex 4A or is in doubt whether a proposed occupation is within the approved list should seek the special permission of the Bar Council before taking up the occupation.”

17.The Bar Council refused the applicant’s application because it was not satisfied that his engagement as a neuo-beautologist would be compatible with his practice as a barrister.

18.The applicant then applied for judicial review against the Decision, contending principally that Paragraph 23 of the Code unlawfully infringes his freedom of choice of occupation guaranteed under Article 33 of the Basic Law (“BL33”), which provides :

“ Hong Kong residents shall have freedom of choice of occupation.”

The applicant also complained that the Bar Council had failed to give adequate reasons in refusing his application to engage in neuro-beautology as a supplementary occupation.

19.By a judgment dated 24 September 2015, G Lam J allowed the applicant’s application for judicial review, granting him the following relief :

(1) an order of declaration that Paragraph 23 of the Code infringes BL33 insofar as it prevents a barrister from engaging in any supplementary occupation without the prior permission of the Bar Council; and

(2) an order of certiorari bringing up the Bar Council’s Decision to the court and quashing it.

20.The Judge’s judgment naturally impacts on how the Bar Council regulates the profession.  The Bar Council considers that it is erroneous and, unless reversed, will erode its capacity to effectively regulate the Bar in the public interest and to ensure public confidence in the profession.  Hence this appeal.

21.The first and foremost issue in this appeal is whether BL33 is engaged by the restriction in Paragraph 23 of the Code.  It is a threshold issue because if it is resolved in favour of the Bar Council, then the question of proportionality does not arise, leaving only the applicant’s challenge based on inadequacy of reasons.

22.To give my discussion later its proper context, I will outline the background circumstances as follows.

B. Background

23.The applicant was called to the Hong Kong Bar in 2005.  Having worked as an employed barrister since September 2005, he resumed private practice on 1 January 2014.

24.In March 2014, the applicant completed a course for a Professional Certificate in Neuro-Beautology with an institution called International Naturopathic College operated by International Nautropathic College Limited, a company incorporated in Hong Kong in 2002.

25.By a letter dated 5 March 2014, the applicant applied to the Bar Council for permission to engage in neuro-beautology as his supplementary occupation pursuant to Paragraph 23(3)(a) of the Code. His letter gave a link to a website for the details of neuro-beautology.  In response to the requests by the Bar Secretariat, the applicant on the same day provided further particulars about :

(1) nature of the work : neuro-beautology is in the field of natural medicine and the practitioner is ordinarily called a “body-figuring practitioner”;

(2) time to be spent : he intended to practise neuro-beautology as his supplementary occupation and the time normally spent for each client per session would be about an hour;

(3) remuneration : in the range of HK$3,800 to HK$5,000 per session.

On 6 March 2014, the applicant further stated in response to the Bar Secretariat’s question that he undertook not to spend more than 17 hours a week in the supplementary occupation.

26.Meanwhile, the Honorary Secretary to the Bar Council visited the website provided by the applicant.  The website described the International Naturopathic College in these terms :

“ International Naturopathic College, Limited was founded in 2002. It takes promoting Naturopathic education in Chinese as its responsibility. Through several years’ negotiation and research, this college made agreement with different institutes and colleges in the world and set up a series of naturopathic medicine courses taught in Chinese and with International certificate in Hong Kong. It is a great breakthrough in the education of naturopathic medicine.

Principle

To promote preventive medicine with professional and universal education, to encourage students understand [sic] preventive medicine, and moreover to apply preventive medicine for treating others”

27.As to the Professional Certificate in Neuro-Beautology, the website stated :

“ ‘Professional Certificate in Neuro-Beautology’ was formally introduced to Hong Kong by International Naturopathic College in 2006. In 2008, the relevant course was presented, demonstrated and promoted in various districts in Hong Kong. “Neuro-Beautology” is one type of Naturopathy which adjusts body gestures in a painless, effective and non-invasive way. It is a professional technique and technology that brings immediate improvement effects. The relevant technique is to efficiently correct distorted body structure through simple spine and pelvis adjustment techniques with the aim of removing or improving humpback, discomfort due to spine, thick waist, lopsided shoulders, legs of different lengths, uneven breasts sizes, neck wrinkles etc. based on skeletal nerve reflexivity. The most incredible thing about this course is that anyone can apply for this course no matter what age you are, whether you have a professional or related background or not. Regardless of the education level, one can apply for this course to acquire a skill.

Qualified professional graduates in ‘Neuro-Beautology’ will utilize this technique to integrate or apply in medical, health care and beauty business or treatment, forming a new programme for overall health, beauty and health care with immediate effects so as to increase the competitiveness within the industry.  This is also beneficial to the developments of new markets and new sources of customers.  In addition, many graduates become Neuro-Beautologist either by establishing their own business or partnership to provide professional Neuro-Beautology services to the public.”

28.The Honorary Secretary was not impressed by the International Naturopathic College.  It was registered only as a private company in Hong Kong.  The College offered various short courses leading to certain qualifications of various descriptions akin to cosmetic therapy or treatment.  The course attended by the applicant only required secondary education as an entrance requirement, and this could be waived by the College.  Those who finished that course were said to be able to give treatment to correct spinal or pelvic deformity or asymmetry so as to eliminate or improve kyphosis and wrinkles around the neck or to achieve effects such as breast augmentation, slimming of the waist and correction problems.  Such claims, in the Honorary Secretary’s view, might engage relevant laws regulating the medical and related professions.  All in all, the Honorary Secretary was left with considerable reservations on the professional standing of (a) the College; (b) the International Naturopathic Medicine Association (of which holders of the certificate held by the applicant are apparently eligible for membership); (c) the professional certificate held by the applicant and (d) body-figuring practitioners generally.

29.The Honorary Secretary reported his findings to the Bar Council at its meeting held on 6 March 2014.  The Bar Council took the view that the applicant’s intended supplementary occupation was not compatible with his practice as a barrister, primarily by reason of its nature and lack of professional standing.  According to the minutes of the meeting :

“ The Hon Secretary said that there were two issues for consideration: (1) the proposed time spent was 17 hours per week which was way above what the Bar Council could accept, and (2) the compatibility of this supplementary occupation to practice as a barrister. He said that when … asked to give more details of the intended supplementary occupation, Albert Leung gave a link to the website of this discipline of neuro-beautology. He had serious reservation about the application by the look of the website.

The Chairman shared the same view and the application must be refused.

Members agreed.

It was resolved that the application by Albert S H Leung be refused.”

30.By a letter from the Chairman of the Bar Council dated 7 March 2014, the applicant was told that his application was refused :

“ I regret to inform you that the Bar Council is not satisfied that your engagement as a Neuro-Beautology [sic] would be compatible with your practice as a barrister and had come to the view that permission should not be granted to your proposed work as stated in your above letter and email.”

31.On 12 March 2014, the applicant notified the Bar Council that he had decided to cease to practise as a barrister with effect from 15 March 2014.

32.On 14 May 2014, the applicant wrote to ask the Bar Council to elaborate on the reasons of refusing his application as he found them to be inadequate.  On 12 May 2014, the Deputy Honorary Secretary to the Bar Council replied :

“ I trust you realise that approval for engagement in a supplementary occupation is not to be granted as a matter of course. In arriving at its decision, the Bar Council has carefully considered the information provided in your previous letter and email respectively dated 5^th and 6^th March 2014.

Without admitting any obligation to give reason, I respectfully disagree that no adequate reason for the refusal has been given in the Chairman’s letter to you dated 7^th March 2014.”

C. Proceedings below

33.On 9 June 2014, the applicant applied for leave to apply for judicial review against the Decision and obtained leave to do so from Au J on 25 November 2014.  The matter eventually came before G Lam J for determination.  The applicant relied on two main grounds :

(1) Paragraph 23 of the Code unlawfully restricts his freedom of choice of occupation guaranteed under BL33 and is therefore unconstitutional.

(2) The reasons given by the Bar in making the Decision were inadequate.

34.On Ground (1), the Judge identified the following issues :

(1) Whether the Decision is amenable to judicial review?

(2) Whether Paragraph 23 of the Code unlawfully restricts the freedom of choice of occupation and is unconstitutional?  Four further issues arose :

(a) Whether BL33 is engaged by Paragraph 23 of the Code;

(b) Assuming BL33 is engaged, whether the restriction is prescribed by law;

(c) Whether there is a rational connection to the legitimate aim pursued; and

(d) Whether the restriction satisfied the requirement of proportionality.

35.On Ground (2), the only question identified by the Judge was whether the Decision should be set aside for the failure to give adequate reasons.

36.The learned Judge first held that the Decision was amenable to judicial review : see [32]-[59] of his Judgment.

37.For the reasons that he gave at [59]-[68], the Judge ruled that BL33 is engaged. After referring to GA v Director of Immigration (2014) 17 HKCFAR 60, a case heavily relied on by the Bar Council, the Judge said :

“ 68. It is not clear whether the respondent would go so far as to contend that Art. 33 is concerned solely with the right against conscription or compulsory allocation to assigned fields of occupation. In my opinion the passages in the judgments in GA v Director of Immigration do not support such a narrow interpretation. Art. 33 refers to freedom of choice of occupation. That freedom is in my view curtailed both where a person is compelled to take up an occupation against his wishes, and where he is prevented from pursuing an occupation of his choice. Without paragraph 23 of the Code, the applicant could prima facie both practise at the Bar and take up supplementary occupation (including the practice of neuro-beautology). With paragraph 23 in place and absent permission from the Bar Council, he cannot do so without risking disciplinary sanctions as a barrister. Giving the words in Art. 33 their ordinary meaning, it seems to me that in a real and substantial way, the applicant’s freedom of choice of occupation has prima facie been restricted by paragraph 23. It probably does not matter whether one characterises it as a restriction on the applicant’s freedom to practise as a barrister, or his freedom to practise as a neuro-beautologist, or both. If, for example, a man is qualified to practise both law and medicine, but because of rules imposed by one of the professions he cannot freely practise in both occupations, it seems to me Art. 33 is engaged. In fact it appears that Mr McCoy accepted that this conclusion would follow on a natural reading of Art. 33. He submitted however that “[t]he Article cannot literally mean what it might appear to say” – a submission that seems to seek to place a restrictive, rather than generous, interpretation on the article. The reason given was that otherwise, for example, an unqualified person could practise as a medical practitioner. But that is a non sequitur. No one disputes that even if Art. 33 applies, qualification requirements for professionals may with justification be imposed: see Art. 142. The question under consideration is simply whether Art. 33 is engaged. For the reasons I have endeavoured to give I conclude that it is, and that paragraph 23 of the Code “prima facie infringes Article 33 of the Basic law” as is conceded (in my view correctly) by the respondent.”

38.The Judge next proceeded to discuss whether Paragraph 23 of the Code satisfied the proportionality test.  For the reasons stated at [69]-[88] and at [90]-[105], he held that Paragraph 23 of the Code did not satisfy both the “prescribed by law” requirement and the “rationality” requirement.  In light of such conclusion, the Judge took the view that the “proportionality” requirement did not arise for consideration : [106]-[107].

39.Turning to Ground (2), the Judge, for the reasons that he gave at [108]-[111], held at [112] that the Bar Council did not give the applicant adequate indication as to why it had refused his application.

40.The Judge therefore allowed the applicant’s judicial review and granted him the relief as set out at [5] above.

41.Having outlined the background facts, I now turn to the threshold issue of whether BL33 is engaged.

D. Is BL33 engaged?

42.Whether BL33 is engaged by Paragraph 23 of the Code turns on the true meaning of BL33. To recap, it provides :

“ Hong Kong residents shall have freedom of choice of occupation.”

D1. GA v Director of Immigration

43.Recently, BL33 arose for the appellate courts’ consideration for the first time in GA v Director of Immigration.[1]

44.There, the first three appellants were mandated refugees who had established their claims as refugees to the satisfaction of the United Nations High Commission for Refugees Hong Kong Sub-Office and awaited settlement overseas.  The 4^th defendant was a screened-in torture claimant under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment.  They had been staying in Hong Kong for 10 to 13 years.  The Director of Immigration refused to grant them permission to work in Hong Kong.  They applied for judicial review against the Director’s said refusal.

45.Ma CJ summarized the parties’ respective stance thus :[2]

“ (1) The Applicants’ position is that theyhave a constitutional right to work in Hong Kong and any discretion on the part of the DOI (the Director of Immigration) whether or not to grant permission to work must be exercised with such right in mind. Save perhaps in one important respect (see sub-para (3) below),the Applicants do not challengethe existence of a discretion on the part of the DOI, but they say that where the constitutional right to work exists, any exercise of discretion not to permit protected persons to work, which would interfere with the constitutional right, can only be justified by the application of the familiar proportionality test. In this latter respect, the Applicants contend that the DOI cannot justify a policy denying permission to work to a protected person who has been in Hong Kong for more than four years. This contention was the same as that raised in the Court of Appeal.

(2) The constitutional right to work was said to be contained in one or more of the following provisions: Article 14 of the Hong Kong Bill of Rights (“the BOR”), Article 6 of the International Covenant on Economic, Social and Cultural Rights (“the ICESCR”) and implicitly in one provision, Article 33 of the Basic Law. The Applicants say a right to work alsoexists at common law.

(3) The Applicants also place reliance on Article 3 of the BOR which states that no one shall be subject to “torture or to cruel, inhuman or degrading treatment or punishment”. It is common ground that we are in this case only concerned the aspect of “inhuman or degrading treatment” (which for convenience I will refer to simply as “IDT”). Where there is a substantial and imminent risk of IDT, the Applicants argue there is no discretion on the part of the DOI other than to give permission to work; in other words, in such circumstances, there can be no justification to decide otherwise and the proportionality test is of no application.

(4) Accordingly, the Applicants seek appropriate relief quashing the relevant decisions of the DOI, thus enabling them (and others like them) to enjoy the right to work in Hong Kong.

(5) On the Respondent’s part, it is submitted that the DOI has a broad discretion in relation to immigration control, including, importantly for present purposes, the granting or refusal of permission to work for persons in the Applicants’ position. The existence of a constitutional right to work contended for by the Applicants (said to be contained in Article 14 of the BOR, Article 6 of the ICESCR and Article 33 of the Basic Law) is not accepted but it is said that these provisions simply have no application in relation to the subject matter of the present case and therefore in any event cannot benefit the Applicants. Here, reliance is placed on s 11 of the HKBORO, the Reservation entered by the Government of the United Kingdom upon ratification of the International Covenant on Civil and Political Rights (“the ICCPR”) on 20 May 1976 and the Reservation entered into by the United Kingdom upon ratification of the ICESCR also on 20 May 1976 regarding the applicability of Article 6 of that Convention. Regarding Article 33 of the Basic Law, the Respondent places reliance on Article 41 of the Basic Law. Accordingly the Respondent submits, the proportionality test does not come into playat all. In any event, even if the test had to be applied, the DOI’s policy satisfies the test. The common law right to work is also disputed.

(6) The Respondent does not of course go so far as to contend that the discretion in immigration matters is without limit.  It is accepted that where exceptional circumstances exist, a discretion giving permission to work can be exercised in favour of persons like the Applicants.  Further, it is not disputed that the discretion is subject to Article 3 of the BOR regarding IDT.  However, the Director submits that in none of the cases before the court can any Applicant demonstrate on the evidence that a genuine and substantial risk of IDT exists. The Applicants argue otherwise on the facts.”

46.At first instance,[3] A Cheung J (as the Chief Judge then was) held that by reason of section 11 of the Hong Kong Bill of Rights Ordinance, Cap 383, the appellants were unable to rely on any of the rights under the BOR.  He also held against the appellants in relation to their submissions based on Article 6 of the ICESCR, BL33 and the alleged right under common law.  However, the learned Judge was of the view that the Director had not properly considered two of the appellants’ personal circumstances and had not dealt with them with an open mind.  He therefore quashed the decisions of the Director to refuse those two appellants permission to work and directed the Director to reconsider their requests afresh.

47.In dismissing the appellants’ appeals, the Court of Appeal held that Article 14 of the BOR, Article 6 of the ICESCR and BL33 did not benefit the applicants.  The Court of Appeal also did not accept that there was a common law right to work.

48.Significantly for present purposes, Fok JA (as Fok PJ then was), in rejecting the appellants’ reliance on BL33, had this to say :

“ 135. If the appellants cannot rely on ICESCR6, they seek to rely instead on BL33 which provides:

“ Hong Kong residents shall have freedom of choice of occupation.”

136. In this context, the appellants also rely on BL41 which provides:

“ Persons in the [HKSAR] other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter.”

137. Mr Fordham submitted that the proper construction of BL33 was no narrower than ICESCR6 because its language was capturing the essence of the core right not to be forced into a particular occupation (conscription) and not to be denied work (access-deprivation). He submitted this was supported by reference to the 2004 PRC Report (E/1990/5/Add.59) to the CESCR, to which I have referred above, indicating that the ICESCR6 right was conferred domestically by BL33 and BL39. He also referred to the CESCR’s General Comment No. 18 (E/C.12/GC/18) stating (at §4) that the right to work in ICESCR6 includes the right not to be deprived of work unfairly which, the CESCR comments, underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work and emphasises the importance of work for personal development and social and economic inclusion.

138. I would reject the wide construction of BL33 advanced by the appellants.

139. BL33 has its origins in article 3(5) (§17) of the Joint Declaration and Annex I Section XIII to the Joint Declaration (§151) both of which refer to various rights and freedoms including that “of choice of occupation”. No wider right to work is expressly referred to. At the time of the Joint Declaration, the significance of a freedom of choice of occupation was the practice in the PRC’s planned economy of assigning students joining universities to specific fields of studies and occupations after graduation: see Chan and Lim (General Editors): Law of the Hong Kong Constitution (Sweet & Maxwell, 2011) at §24.004.

140. In my opinion, a right to choose one’s occupation is narrower than a right to work in general. As the CESCR General Comment No. 18 states, at §6, the right to work is not to be understood as an absolute and unconditional right to obtain employment but includes the right to decide freely to accept or choose work. This demonstrates that the freedom of choice of occupation is therefore only part of the wider right to work in ICESCR6. If BL33 was intended to confer more than a freedom of choice, one would have expected its wording to be different.

141. Furthermore, the relevant context of BL33 would include the fact that by reason of BL39, the ICCPR and ICESCR as applied to Hong Kong include both the immigration reservation, reflected in HKBORO s. 11, and the UK’s reservation to ICESCR6. I have addressed the construction of those reservations above and, in the light of my conclusions as to their proper interpretation, it would not be right to conclude that BL33, properly construed in its context, is co-extensive with ICESCR6 since this would be to ignore the UK reservation to that article.

142. I would add that this conclusion as to the proper construction of BL33 is consistent with previous cases dealing with BL33 which have held that its effect is not to guarantee a right to be employed either generally or in any particular field, but instead, is to protect against conscription to particular fields of occupation: see Cheng Chun-ngai Daniel v Hospital Authority, unrep., HCAL 202/2002 (12 November 2004) at §55; Financial Services and Systems Limited v Secretary for Justice, unrep., HCAL 101/2006 (6 July 2007) at §§49-53; Ng King Tat Philip v Post-Release Supervision Board, unrep., HCAL 47/2010 (23 August 2010) at §§116-117. See also, Hong Kong’s New Constitutional Order (2^nd Ed.) by Professor Yash Ghai at pp. 435-436.

143. In my view, therefore, the right conferred by BL33 is a passive or negative[4] right of freedom to choose an occupation, but does not imply a right to take up available employment in the first place. Nor does it confer an unqualified right to obtain employment, which is necessarily subject to market forces and also subject to legal constraints, such as visa and qualification requirements.

144. The appellants argue that BL41 limits the restrictions that can be imposed on non-residents’ rights since these can only be such as are “in accordance with law”. As to this, the conclusions I have reached as to the proper construction of HKBORO s. 11 and the UK reservation to ICESCR6 mean that the ICCPR and ICESCR rights as applied to Hong Kong are restricted as regards non-residents. The Court of Final Appeal has recognised that there is a difference as regards the fundamental rights and freedoms enjoyed by residents on the one hand and non-residents on the other and also whether such rights can be restricted by law: see Gurung Kesh Bahadur (supra) at §§28, 29 and 42.

145. Furthermore, the phrase “in accordance with law” in BL41 means law including the IO so that the provisions of that ordinance would be relevant in considering the extent of the right under BL33 for a non-resident: see Re Pasa Danaville Dizon, unrep., HCAL 97/2009 (11 September 2009) at §8, Gurung Ganga Devi v Director of Immigration, unrep., HCAL 131/2008 (23 September 2009) at §27 and Comilang v Director of Immigration, unrep., HCAL 28/2011 (15 June 2012) at §91.

146. That there is a difference in the quality of the rights enjoyed by residents on the one hand and non-residents on the other is also reflected in the observations of Stock VP in Fok Chun Wa v Hospital Authority, unrep., CACV 30/2009, namely:

“ 70. The range of rights within Chapter III is broad and the degree to which rights of non-residents in Hong Kong at any given time may lawfully be circumscribed so as to differ from those enjoyed by residents must depend upon the context. So, for example, it is not possible to envisage circumstances in which it would be lawful to deprive a non-resident of the freedom from arbitrary detention or imprisonment. On the other hand, it would be a non-purposive construction that supposed that art.41 intended that non-residents be accorded all the same privileges and benefits as residents, unqualified by considerations of residence status, or other connection with Hong Kong, and regardless of the impact of according such privileges and benefits on Hong Kong residents, benefits such as the freedom of occupation (art.33) or the right to social welfare (art.36). …”.

147. I therefore conclude that BL33, on its proper construction, does not support the appellants’ asserted claim to a right to work.”

49.In the Court of Final Appeal, Ma CJ, after disposing of the submissions on Article 14 of the BOR,[5] held that Article 6 of the ICESCR has not been incorporated into Hong Kong municipal law by reason of the common law dualist principle.  Importantly for present purposes, the Chief Justice rejected the appellants’ arguments on BL33 thus :

“ 70. As I understand Mr Fordham QC’s submission, the relevance of Article 33 of the Basic Law lies in the assumption within it that there is a right to work in general. Thus regarded, this provision provided another means by which, following the dualist principle, Article 6 of the ICESCR was incorporated into Hong Kong domestic law. The paper setting out the views of the PRC regarding the implementation of the ICESCR made reference to Article 33 of the Basic Law as being the constitutional guarantee of Article 6.

71. Article 33 does not refer to the right to work in general.  It is much narrower than that, dealing only with the freedom of choice of occupation.  If it was intended that a wider right was to exist, the article would simply have said so or it would have been made much clearer, rather than to adopt a somewhat elliptical technique.”

His Lordship then quoted [139]-[143] of Fok JA’s judgment in the Court of Appeal verbatim and agreed with it.[6]

50.Turning to the common law right to work, Ma CJ disposed of the appellants’ submissions shortly thus :

“ 75. As a back stop submission, the Applicants finally advance the argument that a common law right to work exists. It is not necessary to deal at length with this submission. None of the authorities cited by the Applicants bears this out and, as Lord Pannick QC points out, the context of those cases are quite far removed from the present.[7] More important, it is difficult to conceive of the existence of a right to work under the common law in the circumstances of the present case, particularly in the light of the discussion above relating to s 11 of the HKBORO, Article 39 of the Basic Law and the two Reservations made regarding the ICCPR and the ICESCR.

76. From the above, it is clear that no constitutional right to work exists in favour of the Applicants in the present case.  No questions of proportionality therefore arise for consideration.”

51.Two propositions can be distilled from the judgment of the Court of Final Appeal in GA v Director of Immigration :

(1) Under the common law, a general right to work does not exist.

(2) BL33, on a proper construction, only protects against conscription to particular fields of occupation.  It does not confer a right to work in general.

D2.    The parties’ submissions

52.Mr Yu SC, for the Bar Council, submitted that in light of GA v Immigration of Director, BL33 is simply not engaged.  With respect, Mr Yu must be correct.

53.Mr Dykes SC, for the applicant, submitted that a right to work has always existed under the common law, which recognizes a person’s right to choose his own occupation.  The common law right is elevated to constitutional status by virtue of BL33.

54.The difficulty with Mr Dykes’s argument is two-fold.

55.First, the English authorities that he cited in support, that is, Blackstone Commentaries on the Laws of England, Vol 1, “Rights of Persons” at §II; Re Tailors of Ipswich Case (1614) 77 ER 1218; Nagle v Feilden [1966] 2 QB 633; Pharmaceutical Society of Great Britain v Dickson; and the local case of Ho Man Fat (No 2) v Royal Hong Kong Jockey Club [1976] HKLR 452 are all concerned with restraint of trade or analogous concepts, which are, as noted by Ma CJ, quite far removed from the present.[8]  They do not support the very wide proposition that under the common law a general right to work exists, whatever the context might be.

56.Second and more fundamentally, the two propositions that I have just derived from Ma CJ’s judgment in GA v Director of Immigration are binding on this Court.  Mr Dykes argued that they are not as they are just obiter dictum. With respect, I disagree.

57.As I have said, the appellants in GA v Director of Immigration argued that they had a constitutional right to work because of, among other things, the protection guaranteed by BL33.  They also relied on the alleged common law right to work.  The two propositions derived by me formed the core of the Chief Justice’s reasoning and the very basis for rejecting their arguments.  As such, they are plainly the ratio decidendi of his Lordship’s judgment and are binding on this Court.

58.What I have just said disposes of Mr Dykes’s principal argument raised in this appeal.  For completeness, I will briefly deal with two points raised in his written submissions but not fully developed orally.

59.First, Mr Dykes submitted that the Basic Law is not a freeze-frame.  It is a living instrument intended to meet changing needs and circumstances.  In construing it, the court must take into account the evolving social context.  Thus while the context in the 1980s must be looked at, including the way in which socialist labour conscription policies were practised in the Mainland at that time, that is far from a complete account of the enquiry that must be undertaken in correctly construing BL33.  Mr Dykes seemed to be suggesting that given the present social context, BL33 must now be construed to include a general right to work.

60.It is well established that a constitution such as the Basic Law is capable of growth and development over time to meet new social, political and historical realties since the time of its enactment : Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, per Li CJ at p 28D; W v Registrar of Marriages (2013) 16 HKCFAR 112, per Ma CJ and Ribeiro PJ at [84]; Hunter v Southan Inc [1984] 2 SCR 145, per Dickson J at p 155.  Thus in construing the Basic Law, the court gives due regard to its historical context but is not unduly constricted by it.  The court always treats the Basic Law as a living norm, rooted in the past but intended to be responsive to contemporaneous needs and circumstances, and gives it an interpretation that truly reflects firmly held modern views in the current social and legal landscape.

61.When in a particular case the court is asked to depart from a long held position in interpreting the Basic Law, such as the concept of marriage in W v Registrar of Marriages, supra, the court will approach the matter with extreme caution to ensure that such departure is truly warranted so as to reflect the underpinning societal changes and realities.  Otherwise, the court will act beyond its constitutional role by writing new, or re-writing existing, social policy in the guise of constitutional interpretation.  Introducing changes to social policy is the exclusive function of the executive branch of the government or the legislature which the court cannot usurp.

62.Here, the Court of Final Appeal handed down its judgment in GA v Director of Immigration on 18 February 2014, some 32 months ago.  And in unequivocal terms, the Court of Final Appeal held that BL33 confers no general right to work.  If Mr Dykes really wanted us to depart from such a position now by giving BL33 the interpretation that he contended for, he would have to demonstrate to us that there had been significant societal changes since February 2014.  But he simply has not done so.  Indeed, on the materials before us we can see no societal changes since February 2014 that would warrant such a departure.  There is accordingly no basis for this Court to interpret BL33 in such a way as to confer a general right to work.

63.Second, Mr Dykes referred to Article 6 of the ICESCR.  It is not entirely clear if it is his submission that Article 6 formed part of the domestic law of Hong Kong. If that was his submission, it must be rejected in light of the clear and contrary ruling by Ma CJ in GA v Director of Immigration.

D3. The Judge erred

64.With respect to the learned Judge below, at [68] of his Judgment he erred in his understanding of the effect of GA v Director of Immigration.  The Court of Final Appeal’s judgment is binding on this Court as it is on him.

D4. Conclusion

65.Since BL33 does not confer a general right to work, it is not engaged by the restriction in Paragraph 23 of the Code.  No questions of proportionality arise for determination.  Nor is it necessary to deal with the arguments on “prescribed by law”.

66.For completeness, Mr Dykes, in response to the questions by the Bench during oral submissions, applied to amend the Form 86 by adding a further ground of challenge to the constitutionality of Paragraph 23 of the Code that the Bar Council had misconstrued and misapplied Paragraph 23(3) of the Code.  In light of my conclusion that BL33 is not engaged by Paragraph 23 of the Code, this proposed amendment is wholly academic.  I would accordingly refuse to give leave to amend.

67.This brings me to the applicant’s challenge based on inadequate reasons.

E. Reasons Challenge

68.This complaint can be disposed of shortly.

69.The reasons given by the Bar Chairman in his letter dated 7 March 2014 were that the Bar Council was not satisfied that the applicant’s engagement as a neuro-beautologist would be compatible with his practice as a barrister.  These reasons were very brief indeed.  So were the minutes of the meeting of 6 March 2014.  They did not add much to the adequacy of reasons.  The Judge was correct in holding that the reasons were inadequate.

70.Mr Yu submitted that the reasons given by the Bar Council were sufficient because the applicant was legally trained and should be taken to have read and understood the Code and, with sufficient precision, the parameters for supplementary occupations.  He should be treated as an “informed party” and elaborate reasons were not required : South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, at [36].

71.In my view, in determining that neuro-beautology is not a compatible supplementary occupation, the Bar Council, collectively representing the profession’s views on the norms and standards acceptable to the profession, is exercising a value judgment involving those considerations as now set out in the affirmation of the Honorary Secretary filed in the proceedings below.[9]  It is not enough to expect that the applicant, even with his professional training as a barrister, would be able to figure out the exact reasons why his application was rejected by the Bar Council on the ground of incompatibility.  The reasons as set out in the Honorary Secretary’s affirmation should have been provided to the applicant at the same time when the Decision was communicated to him.

72.That said, I agree with Mr Yu that the Judge ought to have accepted that the reasons disclosed in the course of the proceedings were adequate, and refused to quash the Decision on the ground of inadequate reasons.

73.Mr Dykes submitted that the applicant had been prejudiced by the lack of adequate reasons.  He first submitted that had the Bar Council explained at the time what it meant by “compatibility” and why neuro-beautology did not pass muster there might be disclosed a demonstrable error.  With respect, this is no more than speculation.  He next argued that had the Bar Council indicated why it thought the occupation was not “compatible” the applicant could have engaged the Bar Council.  However, as rightly submitted by Mr Yu, the Bar Council’s objection was to the nature and standing of neuro-beautology, which were matters beyond the applicant.  The applicant had not shown he could have done anything to improve the situation or his chances of getting the approval even if given fuller reasons.  He had not been prejudiced as contended.

F. Disposition

74.For the reasons given, I would allow the appeal, set aside the order of the Judge and substitute it with an order that the applicant’s application for judicial review be dismissed.

75.Costs should follow event.  I would make an order nisi that the Bar Council shall have the costs here and below, to be taxed if not agreed, with a certificate for two counsel.

Hon Cheung CJHC :

76.Accordingly, the Bar Council’s appeal is allowed in the terms as proposed in paragraphs 74 and 75 above.

Mr Philip Dykes, SC, leading Mr David Lai, Mr Timothy Parker & Mr Edward Tang, instructed by Jal N Karbhari & Co, for the Applicant

Mr Benjamin Yu, SC, leading Mr Abraham Chan & Mr Anthony Chan, instructed by Kwok, Ng & Chan, for the Respondent