Shau Lin Chi v. The Secretary for Justice

HCA007513/1994

1994, No. A7513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

Coram: The Hon Mr Justice Findlay, in Court

Date of hearing: 27 October 1998

Date of handing down of judgment: 30 October 1998

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JUDGMENT

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1. The plaintiff is a Chief Officer in the Correctional Services Department. The rank of Chief Officer is a senior, as opposed to a subordinate, one. A Chief Officer ranks immediately below a Superintendent, who is usually in charge of a prison or other Correctional Services institution.

2. The plaintiff alleges that, during the period 20 September 1991 to 30 June 1992, he was required by his superior to perform "overnight special duty" at the barracks of the High Island Detention Centre (HIDC) from 5-15 pm to 8-30 am the next morning every one in three nights for about 6 months and every second night for about 3 months. This was after a normal day's work. This duty, the plaintiff says, was "stand-by" duty under Civil Service Regulation (CSR) 668, and he is entitled to time off in lieu under CSR 667. The total number of hours, the plaintiff alleges, was 1708 hours. There was a dispute between the parties as to the total number of hours, but the plaintiff is prepared to accept the defendant's calculation of 1645 hours.

3. The plaintiff now asks for a declaration that he is entitled that time-off.

4. The defendant says that the duty the plaintiff was required to perform was "overnight on-call duty", and this was not overtime within the meaning of CSR 667. The defendant concedes that the plaintiff was required "to remain on-call beyond his conditioned hours in the area of the High island Detention Centre away from his official place of abode and accommodated at the barrack accommodation" at HIDC. For this, the defendant says, the plaintiff was entitled to $50 per night, and he claimed this allowance on at least five occasions.

5. To put this allowance of $50 into perspective, the plaintiff's subordinate officers performing the same duty at the same time received, I am told, an allowance of between $1500 and $2000.

6. The defence goes on to say that the plaintiff "was not eligible for any overtime allowance or time-off in lieu as specified in [CSRs 667 and 668] as the duty performed . . . was not "stand-by duty" and that [CSRs 667-668] do not apply.".

7. The interpretation of the terms of the CSRs are, it is agreed by both counsel, at the root of this case. I set out the important ones. They appear in "Chapter IV Salaries and Allowances", under the heading "Overtime".

"665	Overtime is work undertaken over and beyond an officer's conditioned hours, regardless of the day or time of day on or at which it is undertaken.
666	[This CSR emphasises that overtime is the exception, rather than the rule.]
667	Overtime should normally be recompensed by time off in lieu. Where this is, or is likely to be, impracticable within one month of the date on which the overtime is worked, an overtime allowance may be paid to eligible officers. An officer may, however, opt for time off in lieu at a later date instead of overtime allowance, subject to the exigencies of the service.
668	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.
669	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.
670	Overtime allowance is payable only for time worked in excess of conditioned hours . . .

Eligibility for Overtime Allowance

675	[As far as it is relevant here, this regulation provides that the plaintiff is not eligible for overtime allowance.]

Disciplined Services Special Allowance

678	Certain officers in the disciplined services who are required to undertake unavoidable additional duties over and beyond what may reasonably be regarded as their normal hours of work may receive a Disciplined Services Special Allowance. . .
679	[The additional duties must be in accordance with operational requirements.]
680	[The officers eligible for this allowance are specified. They do not include a Chief Officer.]"

8. The plaintiff says that the more junior officers who performed the same additional duties as undertaken by him were paid the allowance specified under CSR 678. This is not denied by the defendant.

9. The argument advanced by Mr Dykes is concise, simple, attractive and almost right. He says -

a) Under CSRs 665 and 667, an officer performing overtime is entitled to time off in lieu, and, under CSR 667, he may receive an overtime allowance if he is eligible. Overtime is "work undertaken". The plaintiff did not perform any overtime because he did not "work". In any event, he is not entitled to an overtime allowance because he is not eligible.

b) Under CSR 668, an officer required to "stand-by" is entitled to a reduced overtime allowance if he is eligible. The plaintiff is not entitled to this allowance because he was not required to "stand-by" and he is not eligible.

c) Under CSR 669, the time during which an officer is required to be "on call" is not regarded as overtime and does not attract any recompense. The plaintiff was "on call", was not performing overtime and is not entitled to any recompense, by way of time off, allowance or otherwise.

10. Most of this I accept, and, indeed, most of it is not challenged by Mr McCoy. The plaintiff does not seek any allowance, only the recognition that he is entitled to time off in lieu. There was some confusion in the defendant's earlier case, but now it is clear that the only basis on which the defendant resists the plaintiff's claim is that he did not perform overtime because he did not undertake any "work" and because his case falls within CSR 669, which debars him from any recompense.

11. In spite of the fact that the Secretary for the Civil Service, who is, by virtue of the regulations, authorised to interpret them, seems to think that CSR 669 does not apply to the plaintiff's case, Mr Dykes disagrees. Indeed, Mr Dykes is obliged to rely on CSR 669 because this regulation is the one that debars the plaintiff from receiving recompense.

12. To describe the duty that the plaintiff was required to perform as "on call" or "overnight on call" does not bring his case within CSR 669 if it does not fit. And it does not fit. The evidence is that there is no real difference between the duty that the plaintiff was commanded to undertake and being required to stand-by at his place of work. CSR 669 contemplates that the officer required to be on call has a freedom not enjoyed by an officer on stand-by. An officer on call 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". It is not challenged by the defendant that the plaintiff was, by the orders he was required to obey, not in that position. He was required "to remain on-call beyond his conditioned hours in the area of the High island Detention Centre away from his official place of abode and accommodated at the barrack accommodation" at HIDC. He was not permitted to be at home with his wife and five children; he was not permitted to attend a soccer match in San Po Kon; he was not permitted to play golf at Kau Sai Chau. 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.

13. There is another problem with Mr Dykes' submission on this point. This is that the similar duty performed by the plaintiff's subordinate officers under similar conditions was not regarded as falling within CSR 669. In their cases, it was accepted that they were "required to undertake unavoidable additional duties over and beyond what may reasonably be regarded as their normal hours of work", and they were paid the Disciplined Officers Special Allowance. If they had been regarded as simply being on call under CSR 669, they would have been entitled to no recompense.

14. So, I conclude, the Secretary for the Civil Service is right; CSR 669 does not apply to the plaintiff's case so as to debar him from any recompense for the duties he was required to undertake. The Secretary seems to think that there is another category of duty that disentitles the plaintiff from recompense other than the princely sum of $50 per duty; the soi-disant "overnight on call". The answer to this is that the contract between the parties as recorded in the CSRs does not recognise this category. Mr Dykes did not seek to argue that there was such a special classification of duty.

15. There remains Mr Dykes other point; that, in any event, the plaintiff is not entitled to time off in lieu because he was not performing overtime because he did not undertake any "work".

16. The major problem with this argument is the same as that mentioned above. If the plaintiff was not working, neither were his subordinate officers performing a similar duty. And yet it was accepted that those subordinate officers were undertaking "unavoidable additional duties over and beyond what may reasonably be regarded as their normal hours of work". If undertaking "unavoidable additional duties over and beyond what may reasonably be regarded as their normal hours of work" is not "work" as contemplated by the CSRs, I do not know what is. Quite clearly, it was accepted that these duties, undertaken by the plaintiff and his junior officers alike, was overtime and was work undertaken.

17. 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 arises 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 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 soldier, policeman or prison officer. The plaintiff and his officers were told to stay 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 my mind, is "work" as envisaged by these regulations.

18. Accordingly, I find that the plaintiff was, during the relevant times, performing overtime as required by his superior. It follows from my findings that he was entitled to time off as recompense for that overtime. I grant the declaration now sought.

19. The matter of costs has not been argued, but there seems to me no obvious reason why costs should not follow the event. I make an order nisi that the defendant pay the plaintiff's costs.

Representation:

Mr Gerard McCoy, SC, and Mr Lawrence Lau, instructed by Messrs Tsang, Chan & Woo, for the plaintiff.

Mr Philip Dykes, SC, and Mr SH Kwok, instructed by the Department of Justice, for the defendant.

Remarks:
On appeal by the Defendant to the Court of Appeal: Appeal dismissed. Please refer to the Appeal judgment CACV000339/1998.