The Association of Expatriate Civil Servants of Hong Kong v. The Secretary for The Civil Service

HCAL000009B/1998

HCAL No. 9 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW PROCEEDINGS NO. 9 OF 1998

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Coram : The Hon. Mr. Justice Barnett in court

Date of Hearing : 2 December 1998

Date of Handing Down Judgment : 8 December 1998

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J U D G M E N T

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1. This is a continuation of the judgment which I gave on 9th November 1998, in which I concluded by saying that I could not see who could claim decisions four and five to be unlawful. I offered AECS the opportunity to address me further on these decisions. AECS took advantage of that offer.

2. It is now clear and I think accepted that the two categories of overseas officer with which I dealt are not disadvantaged by the freeze. The first category, officers who started their LMT agreements during the freeze, can count their five years' service from the start date of their LMT agreements. The second category, officers who began their LMT agreements before the freeze, can under paragraph 22(b) of the Circular choose any date between the date when they began LMT and the expiry of their current agreements. So an officer whose 55th birthday occurred after he became a LMT officer, will be able to back-date to a date which will allow him five years' service on P & P.

3. For AECS, Mr. Scott said that there is a third category of overseas officer who should have been allowed exception from the strict five-year rule. Those officers are overseas officers whose 50th birthday occurred before they became LMT officers. In support of this argument, Mr. Scott said that it is necessary to look at the broader picture and not the freeze itself which is simply one aspect of that picture. He pointed out that in July 1993, SCS decided that no overseas officer would be allowed to transfer to P & P. In October 1995 that decision was held to be unlawful by Keith J. The freeze was a consequence of that decision, allowing SCS time to decide how to deal with the court's ruling.

4. The Circular, which came two years later and which has led to this application, did not, Mr. Scott argued, simply remove the freeze. The Circular, he said, constitutes a wholly new approach to the question of overseas officers transferring to P & P. That being so, SCS should have looked farther than the narrow interests of overseas officers affected by the freeze and have considered the interests of overseas officers as a whole body.

5. Mr. Scott submitted that it is purely accidental whether an overseas officer reached his 55th birthday before or after starting LMT terms. Overseas officers had no control over the date of their birth, or the date upon which they began service as an OAT officer upon the expiry of which they could take LMT terms. In the same way as officers falling in the other two categories had no control over their fate because of the freeze and so were given exceptional treatment, officers in category 3 had no control over circumstances and should also have been given such exceptional treatment.

6. According to Miss Lee's first affidavit, the five-year rule has been in operation since April 1992. The rule was "to address the Director of Audit's concern that agreement officers should not be allowed to take advantage of the system by transferring from agreement to P & P terms shortly before retirement, just to 'buy-back' their previous agreement service by refunding gratuity received previously, in exchange for a large pension lump-sum plus monthly pension, and not for the purpose of pursuing a long-term career". Mr. Scott emphasized the word "should" which, he said, indicates that the rule is discretionary. He submitted that the mischief at which the rule is aimed does not apply in the case of officers falling within any of the three categories now identified. He suggested that SCS had given undue consideration to this admittedly lawful rule.

7. It was contended, therefore, that the decisions complained of were unlawful in that they placed too great a reliance upon the rationale for the five-year rule and contravened the principle of good public administration that all persons in a similar position should be treated similarly: see R. v. Hertfordshire County Council, exparte Cheung (1986) the Times Law Reports April 3rd 1986.

8. It is right to say that neither Mr. Fok nor I had previously grasped the 3rd category of overseas officers who, it is now said, have been disadvantaged by SCS' failure to consider their interests as part of the revised approach to transfer to P & P. This category certainly does not emerge with any clarity from the way in which the attack upon the two decisions is framed in the applicant's notice. However, in view of the very wide wording used in the notice, I am prepared to accept that this category does fall within the ambit of this review.

9. The substantive answer to the complaint, said Mr. Fok, is that overseas officers in the 3rd category do not stand in a similar position to those in the other two categories. He accepted that the prohibition on overseas officers seeking transfer to P & P has been declared unlawful. What remains in place, however, is the requirement that an OAT officer must first complete his OAT agreement before obtaining a LMT agreement. It is the LMT agreement which then provides the avenue to P & P. Prior to the change from OAT to LMT, an overseas officer had no prospect of transferring to P & P. The five-year rule and an officer's birthday only become relevant after an OAT officer has transferred to LMT.

10. Mr. Fok pointed out that AECS had effectively tried to challenge the OAT/LMT route as opposed to a direct transfer from OAT to P & P in these proceedings by seeking review of what was called decision 3. Leave was refused and an appeal dismissed.

11. I am persuaded that Mr. Fok is right. Until he is on LMT, an overseas officer cannot transfer to P & P. It seems to me therefore that it was unnecessary for SCS to consider overseas officers who were not eligible for P & P either because they were not yet on LMT or because, through the workings of an as yet lawful set of rules, they had reached the age of 55 before they transferred from OAT to LMT. I can see no basis upon which it could properly be said that SCS should have had to ride to their rescue.

12. I confirm, therefore, my provisional view that these two decisions were not unlawful.

13. I now make an order nisi that AECS should pay the costs of this review.

Representation:

Mr. Michael Scott, Vice President of Association of Expatriate Civil Servants for Applicant.

Mr. Joseph Fok instructed by Wilkinson & Grist for Respondent.