Chiu Kin Ling and Others v. The Attorney General

HCA007375/1991

1991, A7375

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H E A D N O T E

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The plaintiffs were employed in 1989 as Assistant Police Research Officers in the Royal Hong Kong Police Force to carry out research and analysis duties in sensitive areas. As they are civilian members of the Police Force, they are paid in accordance with the Master Pay Scale at a rate comparable to the rate of pay received by a Chief Inspector. Parity had been accepted by Government since 1973 following a recommendation made by the Standing Committee on Civil Service Salaries and Conditions of Service. In 1989 Government implemented recommendations made by the Review Committee on Disciplined Services Pay and Conditions of Service for a general overall increase in pay for the disciplined services of 12%. This recommendation did not include Research Officers as they are not members of the disciplined cervices. Later on the 8th January 1991 Government accepted a recommendation of the Standing Commission to remove the link between the pay received by Research Officers and the Police Force. When the plaintiffs were employed, Government did not take into account the increase that had been awarded to the disciplined members of the Police Force and it was therefore contended that they had been underpaid.

As the link had not been severed at the time of their employment, the plaintiffs were granted declarations that they were entitled to be paid at the same rates as Police Officers of the rank of Chief Inspector on the grounds that the implied conditions as to parity were still operative.

1991, A7375

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon Jones J. in Court

Dates of hearing: 1, 2 and 14 April 1993

Date for handing down judgment: 23 April 1993

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J U D G M E N T

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1. In 1973 the Hong Kong Government (Government) established the grade of Research Officer in the Royal Hong Kong Police Force (police force). Research Officers are civilians who are recruited either from former members of the police force or from persons who have had a military or intelligence background. They are employed by the police force on research and analysis duties in sensitive areas. As they are civilians they do not carry warrant cards, so do not have the power of arrest. Accordingly Research Officers are not considered to be members of the disciplined services.

2. Since the establishment of the grade, the positions of Police Research Officers (PROs) and Assistant Police Research Officers (APROs) have been paid in accordance with the appropriate scale of pay under the Master Pay Scale comparable to the salaries received by police officers with the rank of Superintendent and Chief Inspector.

3. In 1979 and 1980 the Standing Commission on Civil Service Salaries and Conditions of Service (the Standing Commission) issued reports that recommended the establishment of a Disciplined Services Pay Scale. At the same time, the Standing Commission examined the role of Research Officers and recommended that whilst their pay should remain on the Master Pay Scale, it should remain comparable with the salaries of Superintendent and Chief Inspector. This recommendation was accepted by Government and implemented.

4. On the 21st November 1988 the Review Committee on Disciplined Services Pay and Conditions of Services (the Review Committee) made its final report (the Rennie Report) in which a recommendation was made to introduce a new Police Pay Scale with a general increase of pay for the disciplined services of about 12%. This recommendation was accepted by Government on the 13th January 1989 and the increase was backdated to the 1st April 1988. This recommendation, as I have said, was confined to the disciplined services and did not therefore extend to PROs or APROs.

5. On the 14th December 1990, the Standing Commission submitted its final report No.26 on non-directorate civil service grades including the grade of Research Officers. The report contained a recommendation that 16 departmental grades within the disciplined services including Research Officers should remain as civilian grades, but that any pay links with the disciplined grades should be severed. No upward adjustment of the pay scales of PROs and APROs to reflect the increase that was awarded to the disciplined services was recommended. The recommendation to sever the link was approved by the Governor in Council on the 8th January 1991.

6. At the time when the proposals set out in the Rennie Report were announced, correspondence ensued between representatives of the grade and the Secretary for the Civil Service expressing the concerns of the PROs and APROs with regard to the continuance of parity. This correspondence came to an abrupt halt in May 1990 when the Secretary for the Civil Service made what can only be described as a most surprising decision not to answer any further correspondence.

7. As a result a representative action was brought by the Research Officers totalling 38 in number, including the two plaintiffs, against Government for declarations seeking restoration of the benefits to which they claim they were entitled on the basis of parity. Eventually a settlement was reached whereby all the Research Officers were awarded full compensation with the exception of the two plaintiffs. A consent order setting out the terms of the settlement was made on the 27th June 1991.

8. As the claims of the two plaintiffs were rejected, the present proceedings were instituted on the 27th September 1991 seeking similar declarations claimed in the representative action.

9. The 1st plaintiff Mr Lau unfortunately died on the 29th October 1992 with the result that his action has been continued by his widow.

10. Mr Lau was initially employed by Government in 1975 as a police photographer. From March 1987, he acted as an APRO for various periods. Mr Lau applied for the substantive post of APRO in special branch on the 15th February 1989 that had been advertised in a civil service circular on the 13th February 1989. Following an interview by a selection board he was offered the position on the 26th June 1989 which he accepted. He commenced employment as an APRO on the 10th July 1989 and remained in this position until his death.

11. The 2nd plaintiff has served with distinction in the police force since he joined in 1958. For the greater part of his service he held the rank of senior inspector for although he was well qualified for promotion, he elected to remain in this position for he preferred the work that he was doing which was in interpol whereas this would not have been possible had he accepted promotion. For his professional work, the 2nd plaintiff has received a number of commendations from his superior officers and was also awarded the Colonial Police Medal by Her Majesty the Queen in January 1990.

12. The 2nd plaintiff applied for the post of APRO on the 3rd January 1989 and was interviewed by an interview board on the 13th February 1989. One of the members of the board was Mr Mushet who was himself a PRO and was about to retire. He had been one of the Research Officers in the representative action. At the interview the 2nd plaintiff made an enquiry about the prospects for the continuance of parity and was informed by Mr Mushet that he believed that parity had not deliberately been removed and was sure it would be redressed when a face saving formula could be devised. The 2nd plaintiff said that Mr Mushet had also given him a similar assurance a short time before the interview during a private conversation.

13. The 2nd plaintiff was subsequently offered the position of APRO on the 12th May 1989 which he accepted on the 22nd May 1989. He commenced employment as an APRO on the 7th June 1989 and is still employed in this position.

14. The defendant has resisted the plaintiffs' claims on two grounds. The first was that it amounted to a challenge to Government's policy to change the conditions of pay which, as it is a matter of public law, should have been determined in proceedings for judicial review which are now statute barred. Pursuant to this contention the defendant sought to strike out the whole of the 1st plaintiffs claim and part of the 2nd plaintiffs claim on the first day of the hearing. However, I rejected this submission for the reasons that I have already given for the claims are directed to the implied terms which had been in effect since the grade was established in 1973 and are mainly concerned with the contractual rights of the plaintiffs.

15. The second ground relates to the dates of the plaintiffs' recruitment in 1989 at which time the recommendation in the Rennie Report with regard to the increase in salary had been announced. It is the defendant's case that as a result of the implementation of the Rennie Report the link with the pay scale of the police force had been severed so that the plaintiffs were employed as APROs at the appropriate salary set out in the Master Pay Scale comparable to the salary of a Chief Inspector at that time but without the 12% increase recommended and accepted by Government for the disciplined services. This ground however is totally flawed for the remit of the Review Committee was restricted to the disciplined services and it had no authority to make any recommendation as to whether Research Officers should continue to enjoy parity of pay with the police force. This matter fell to be considered by the Standing Commission which did not submit its report, as I have said, until December 1990. Indeed, this position was recognized by the Secretary for the Civil Service in his letter of the 9th March 1990 to representatives of the grade when he said:-

"The decision to break the link with police pay is subject to the endorsement of the Standing Commission in its current overall review of non-discipnlined grades."

The role of the Standing Commission is purely advisory and is explained in paragraph 2.28 of the report which reads as follows:-

"2.28 The role of this Commission is to advise the Governor independently after taking full account of the relevant factors and the views expressed by the parties concerned. The decision as to whether our recommendations should be accepted rests with the Government. Once the recommendations are accepted, they become Government policies."

16. The reliance that was placed upon the Rennie Report was wholly irrelevant and amounted to a misconception of the law. Accordingly, at the time when the plaintiffs accepted the offers of appointment as APROs, they were entitled to rely upon the implied conditions as to parity of pay that had been in effect since 1973 and in law remained until the 8th January 1991 when Government accepted the Standing Commission's recommendation to remove the link. As a result when they accepted their offers of appointment the salary included not only that set out in the advertisements but also included the increase in salary comparable to that awarded to a Chief Inspector in the police force. It is ironic to observe that while the defendant has contended that the plaintiffs claims are limited to the salary as set out in the Master Pay Scale without the increase, a Chief Inspector will act in the 2nd plaintiffs position as an APRO when the 2nd plaintiff goes on leave.

17. Although it is unnecessary to consider the effect of the representations or assurances that it is alleged were given to the 2nd plaintiff on behalf of the defendant with regard to the continuance of parity, it was accepted that the only one that could properly be relied upon was the statement made by Mr Mushet who was a member of the interview board. I do not consider that that statement expressed more than a hope or expectation so that it did not amount to a representation or assurance.

18. Reference was made by counsel during the submissions to clause 3(1) of the 1968 Agreement Between The Hong Kong Government And The Main Staff Associations (1982, Revised Version) which reads :

"3. (1) The Government undertakes not to make any considerable change in conditions of service which affects a substantial part of the Service as a whole, or of the members of one or more of the Main Staff Associations, without prior consultation with the appropriate Associations or Association. "

Mr Fitzpatrick, counsel for the defendant, submitted that this clause was not relevant to the present proceedings. However, in view of my decision that parity continued, there is no necessity to consider this matter.

19. Upon the facts, there is no difference between the claims made by the plaintiffs and the claims of the other Research Officers in the representative action. Accordingly, as the plaintiffs were employed as APROs on the basis of parity with the rank of Chief Inspector in the police force, I shall make the declarations as sought. The plaintiffs are also entitled to an order nisi for costs.

Representation:

Mr G.J.X. McCoy (Alsop Wilkinson) for Plaintiffs

Mr D Fitzpatrick (A.G.'s Chambers) for Defendant