Leung Chun Kwong v. Secretary for The Civil Service and Another

HCAL 258/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 258 OF 2015

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DECISION

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INTRODUCTION

1.On 28 April 2017, the court handed down a written judgment upholding, inter alia, the applicant’s complaint in respect of the “Benefits Decision” (as defined in paragraph 15 of that judgment) on the ground that it unlawfully discriminated against the applicant based on his sexual orientation.  At paragraph 95 of the judgment, the court invited the parties to agree on the precise form of the order to give effect to the judgment, with liberty to apply in the event of disagreement.

2.The parties were unable to agree on the form of the order.  The court directed, with the consent of the parties, that the dispute regarding the form of the order should be disposed of by way of written submissions only.  For this purpose, the court has received the applicant’s submissions dated 20 September 2018, the 1^st respondent submissions dated 29 September 2017, and the applicant’s reply submissions dated 9 October 2017.

3.The parties are divided on basically two matters:-

(1)   the form of the declaratory relief; and

(2)   the question of mandamus.

The form of declaratory relief

4.In his Form 86, the applicant seeks the following declaration:-

“… that the Applicant is entitled to the benefits and allowances extended to persons married in Hong Kong and otherwise of like standing serving or formerly in the service of the Government and that Scott Paul Adams is entitled to the benefits and allowances extended to persons married in Hong Kong to civil servants and former civil servants otherwise of like standing to the Applicant (‘equal treatment’) for the purposes of his employment as a civil servant by the SCS”.

5.On the other hand, the 1^st respondent puts forward the following 2 declarations in a letter from the Department of Justice to Daly & Associates dated 6 June 2017 which the 1^st respondent says would sufficiently give effect to the judgment:-

“1 There be a declaration that the Benefits Decision constitutes discrimination against the Applicant based on his sexual orientation contrary to Article 25 of the Basic Law and Articles 1 and 22 of the Hong Kong Bill of Rights and is unlawful.

3 There be a declaration that the Applicant and Mr Scott Paul Adams are entitled to the benefits and allowances that the Government provides to married civil servants of the same employment terms and conditions of the Applicant whose marriages are to persons of the opposite gender and their spouses respectively.”

6.The proposed declaration put forward by the applicant is, in my view, inappropriate for the following reasons:-

(1)   It fails to explicitly identify the reason why the Benefits Decisions constitutes discrimination against the Applicant.

(2)   It provides that the applicant is entitled to the benefits and allowances extended to persons married in Hong Kong and otherwise of “like standing” serving “or formerly in the service of the Government”.  Two problems arise.  First, the concept of “like standing” is not sufficiently precise.  It is trite that a declaration ought to be framed in a manner which is as clear as possible in terms of language and effect.  Second, the 1^st respondent has informed the court (which has not been disputed) that civil servants appointed before 1 June 2000 have employment terms and conditions different from those of civil servants (including the applicant) appointed on or after 1 June 2000, and the benefits and allowances that they are entitled to are different.  That being so, it would not be appropriate to declare generally, or without qualification, that the applicant is entitled to the benefits and allowances extended to persons married in Hong Kong and otherwise of like standing serving “or formerly in the service of the Government”.

7.In paragraph 10 of the applicant’s skeleton argument dated 20 September 2017, an alternative form of declaration is put forward, namely:-

“… the Applicant and Scott Paul Adams are entitled to equal benefits and allowances to those extended by the Government to civil servants and former civil servants of like standing [OR similar rank, duties, seniority and experience and other circumstances of employment] and their spouses who have entered into valid and legally recognized heterosexual marriages (whether in Hong Kong or overseas)”.

8.This revised formulation of the declaration suffers from the same problems mentioned above.

9.On the other hand, the applicant objects to the 1^st respondent’s draft on a number of grounds.  First, it is said that paragraph 1 of the 1^st respondent’s draft is solely “negative” and does not declare the applicant’s right to equal treatment under the CSRs. This argument ignores, however, paragraph 3 of the 1^st respondent’s draft.

10.Second, the applicant argues that the 1^st respondent’s draft is limited only to the court’s decision, and to the applicant and Mr Adams alone, contrary to the broad applicability declared in paragraphs 65 and 66 of the judgment.  I consider that, in principle, a declaration ought to be framed in such a manner as would reflect precisely what has been decided by the court, having regard to the decision under challenge and the ground(s) of challenge.  The present application is brought by the applicant in his own personal capacity and not in any representative capacity.  The court’s decision has been given on the basis of the facts put forward by him only.  While the court’s declaration granted in the present case may well be applicable to other civil servants in a position similar to that of the applicant, and (subject to the outcome or eventual outcome of any appeal against the judgment) the 1^st respondent will probably act accordingly in relation to such other civil servants, I do not consider it appropriate to grant a declaration in general terms beyond the position of the applicant and Mr Adams.

11.Third, the applicant argues that paragraph 3 of the 1^st respondent’s draft does not provide for equivalence in benefits enjoyed by the applicant after leaving the civil service, for example on retirement.  I consider that paragraph 3 of the 1^st respondent’s draft sufficiently provides for equivalence in benefits that the applicant may enjoy after leaving the civil service, including post-retirement benefits.

12.In all, I consider that the draft declarations put forward by the 1^st respondent in terms of paragraphs 1 and 3 set out above are appropriate and sufficient in the present case.

Mandamus

13.In his Form 86, the applicant seeks an order of mandamus against the 1^st respondent in these terms, namely:-

“… to accord equal treatment to the Applicant and Scott Paul Adams as that extended to civil servants and former civil servants of like standing to the Applicant whose marriages were contracted between persons of opposite sex”.

14.I have already explained why the proposed declarations put forward by the applicant are inappropriate. It follows that the 1^st respondent ought not to be directed to act according to the applicant’s proposed declarations.

15.Further, it is trite that whether to grant an order of mandamus is discretionary, and such order may be refused where it appears to be unnecessary.  See Supperstone, Goudie and Walker, Judicial Review (6^th Ed, 2017), paragraph 14.46: “A mandatory order may be refused … where the remedy appears unnecessary. In the latter case, the refusal may be temporary, with liberty to apply.”

16.Also, the practical effect of a declaration directed at a public officer or public body would generally be the same as a mandatory order without the need for compulsion.  See Lewis, Judicial Remedies in Public Law (5^th Ed, 2014), paragraph 6-051; R (on the Application of Wheeler) v Office of the Prime Minister [2008] ACD 70, at H18.

17.In the present case, subject to any suspension of the effect of the judgment pending appeal granted by the court (or orders to the same effect), there is no reason to believe that the 1^st respondent would not act consistently with the judgment and declaration (to be) granted by the court.  The applicant’s reliance on the order made by the Court of Final Appeal in Prem Singh v Director of Immigration (2003) 6 HKCFAR 26 is plainly misplaced, because in that case the Court of Final Appeal considered that Mr Singh’s entitlement to permanent resident status should be remitted to the Director of Immigration for investigation and fresh determination in accordance with its judgment, and hence an order of mandamus was made to that effect.

18.I do not consider it necessary to grant the mandamus sought by the applicant in the present case, but would give the parties liberty to apply for further directions or relief should circumstances make it necessary to do so.

disposition

19.There is no dispute regarding paragraphs 2 and 4 of the proposed order set out in the letter from the Department of Justice dated 6 June 2017.  Accordingly, I make an order in terms of paragraphs 1 to 4 of that letter with liberty to the parties to apply for further directions or relief.  The applicant shall pay the respondent’s costs of and incidental to the issue relating to the proper form of the order, to be taxed if not agreed with certificate for 2 counsel.

20.The applicant’s own costs are to be taxed in accordance with legal aid regulations.

Mr Nigel Kat, SC and Mr Azan Marwah, instructed by Daly, Ho & Associates, assigned by Director of Legal Aid, for the applicant

Mr Stewart Wong, SC and Mr Johnny Ma, instructed by Department of Justice, for the 1^st respondent