In Re Association of Expatriate Civil Servants of Hong Kong & Others

HCMP003037A/1994

1994 MP No. 3037

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing : 23 January 1995

Date of delivery of judgment : 23 January 1995

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J U D G M E N T

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THE DECISION IN PARA. 1(2)(iii) OF THE AMENDED NOTICE IN FORM 86A

1. Mr. Jackson's affidavit which was filed on 20th January explains that decision to me. I now understand what it means. It refers, as Mr. Dykes suspected, to those officers whose agreements had expired without being renewed, but who had accumulated leave which they had not taken, and who therefore continued to receive leave payments. The only basis on which it is said that leave to challenge this decision should not be given is on the footing of insufficient standing on the part of the Applicants. None of the individual Applicants have standing to challenge this decision. They were all permitted to transfer to local conditions of service, even though Mr. Bach chose not to . As for the AECS, the objects of the AECS include the promotion of the interests of its former members. However, I do not believe that it is likely that there is even one former member of the AECS who is affected by this decision, and I am therefore only prepared to give the AECS leave to challenge it on condition that evidence is filed, within 21 days of last Wednesday, to the effect that there is a former member of the AECS who was denied the right to apply to transfer to local conditions of service because his agreement had expired prior to 30th July 1993, but who continued to receive leave payments after that date, and who wishes the AECS to challenge this decision on his behalf.

SUFFICIENT STANDING

2. While I am on the subject of sufficient standing, I want to clarify an ambiguity which I fear may have crept into the extempore judgment which I delivered last Wednesday. The uncorrected draft records me as saying, in connection with the standing of the AECS to challenge on behalf of its members those decisions for which none of the four individual Applicants obtained unconditional leave to challenge :

"It is sufficient that the AECS represents a class of officers, at least one of whom is likely to be affected by the decisions under challenge."

I did not intend to express the position as baldly as that. What I meant to say was that that proposition is sufficiently arguable. It will therefore be open to the Respondents at the full hearing to revisit the issue of the standing of the AECS in relation to the decisions to which that observation related in the light of all the evidence which is then before me. That, I think, is apparent from a passage in the speech of Lord Diplock in R. v. Inland Revenue Commissioners ex. p. The National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617 at p. 642G.

INTERIM STAY

3. I turn to the Applicants' application for a stay of the implementation of two of the decisions under challenge pending the substantive hearing. Those decisions are the decisions in paras. 1(v) and 1(16)(i) of the Amended Notice in Form 86A. I am not prepared to grant a stay of the implementation of those decisions. Any loss suffered by any member of the AECS between now and the substantive hearing (if a stay is not granted, but the decisions under challenge are held to be unlawful) can in my view be compensated by the payment of damages. The one exception to that relates to the alleged loss of nationality of Indian and Sri Lankan nationals who, it is said, are at risk of losing that nationality in the event of their applications to become British Dependent Territory citizens being granted. There is no evidence before me that that would be the effect of the grant of such an application, but in any event since that argument relates only to a small number of civil servants (who, for all I know, would not be interested in joining in this application), I do not regard that as a sufficient reason to stay the implementation of the two decisions under challenge.

4. However, even if I were to conduct a balancing exercise, I believe that the injustice which the Applicants would suffer if I refuse to stay the implementation of the decisions (but if the decisions are ultimately held to be unlawful) is far less than the injustice which the Respondents and any third parties would suffer if I stay the implementation of the decisions (but if the decisions are ultimately held to be lawful). If I grant a stay now, an important aspect of the Government's localisation policy would be put on ice, and the disruption to the orderly administration of the Civil Service, and to the careers of civil servants (whether on overseas conditions of service or local conditions of service) who are not members of the AECS would, in my view, be not inconsiderable - disruption which would have been wholly avoidable if the decisions challenged are ultimately held to be lawful. I therefore decline to stay the implementation of the two decisions, or to restrain the Secretary for the Civil Service from considering or further considering any application for transfer to local conditions of service in accordance with the decisions challenged.

ABRIDGEMENT OF TIME

5. However, I do think that the interests of good administration require that this challenge to the Government's attempts to localise the Civil Service, and to introduce uniform conditions of service for all officers, should be determined as soon as possible. In a case as important as this, it would not be unlikely for the decision of the judge at first instance to be questioned elsewhere. In that event, the uncertainty would continue. All the more reason for the case to be heard quickly. The Applicants do not ask for an order that the hearing of their application for judicial review be expedited, but they do ask for the Respondents' time for filing evidence to be abridged. The Respondents are, of course, under a duty under Ord. 53 r. 6(4) to file their evidence as soon as practicable. I recognise that there may be many evidential enquiries which their solicitors may wish to make, and that the drafting of the evidence will require skill and precision. I bear in mind the proximity of Chinese New Year, but I am determined to set a brisk pace for this litigation for whoever tries it. Accordingly, in addition to filing their evidence as soon as practicable, I direct that the Respondents' evidence be filed within 42 days of the date on which the documents required to be served by Ord. 53 r. 6(1) on the Respondents are served. However, I give the parties liberty to apply if this time-table is rendered inappropriate by any order made by the Listing Judge for the date of the substantive hearing.

MISCELLANEOUS MATTERS

6. Now that I know what this case is all about, I take the view that the members of the Senior Non-Expatriate Officers' Association and of the Hong Kong Chinese Civil Servants' Association may be directly affected by the challenge to the decisions under challenge. Accordingly, the Notice of Motion and the Amended Notice in Form 86A will have to be served on the SNEOA and the HKCCSA.

7. Secondly, Mr. Dykes is concerned about the Applicants' ability to file the Notice of Motion in court within 14 days, bearing in mind that leave to challenge the decisions has been given on different dates. He asks that his time for filing the Notice of Motion be extended to 14 days from today. The Respondents do not object, and I therefore extend the Applicants' time as requested.

8. Finally, because I am sure I will forget it if I do not mention it now, if I am assigned to hear this application for judicial review, I should like full skeleton arguments.

Representation:

Mr. Philip Dykes, inst'd by M/s. Boase & Cohen, for the Applicants.

Mr. Adrian Huggins QC leading Mr. Joseph Fok, inst'd by M/s. Wilkinson & Grist, for the Respondents.