Leung Kam Keung v. The Secretary for Justice
Read the full judgment text of HCMP 4920/2002 on BabelCite. This High Court CFI judgment was delivered on 3 November 2004.
1. In these proceedings, the Plaintiff, Mr Leung Kam Keung, a Welfare Worker employed by the Housing Department, seeks the court’s determination as to whether, on the true construction of Regulations 662, 669 and 678 of the Civil Service Regulations (“CSR”) (2001 version), the responsibilities which he undertook at his quarters at Room 304, 3 rd floor, Hang Lai House, Cheung Hang Estate, Tsing Yi, New Territories from time to time between 11 pm and 8 am the following day, which were described by
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HCMP 4920/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 4920 OF 2002 ____________
____________ BETWEEN
____________ Before: Hon Barma J in Court Date of Hearing: 1 June 2004 Date of Judgment: 3 November 2004 _______________ J U D G M E N T _______________ 1.In these proceedings, the Plaintiff, Mr Leung Kam Keung, a Welfare Worker employed by the Housing Department, seeks the court’s determination as to whether, on the true construction of Regulations 662, 669 and 678 of the Civil Service Regulations (“CSR”) (2001 version), the responsibilities which he undertook at his quarters at Room 304, 3rd floor, Hang Lai House, Cheung Hang Estate, Tsing Yi, New Territories from time to time between 11 pm and 8 am the following day, which were described by the Defendant as being on call, constituted:-
2.The background facts are straightforward and were not seriously in dispute. The Plaintiff is a Welfare Worker employed by the Housing Department. From September 1994 to June 2001, he was working at the Housing for Senior Citizens at Cheung Hang Estate (“the Cheung Hang HSC”) in Tsing Yi, which commenced operations in 1991. The Plaintiff commenced working at the Cheung Hang HSC on his taking up employment with the Housing Department as a Welfare Worker in September 1994, having applied for and obtained this position in response to a Civil Service Branch vacancies circular dated 28 March 1994. 3.The circular set out the duties of a Welfare Worker in the following terms:-
4.Following this description of the duties associated with the post, there was a note, which read:-
5.The Plaintiff was one of three Welfare Workers working at the Cheung Hang HSC. Between September 1994 and June 2001, he worked there on a two-shift system under which there was an “A” shift from 8 am until 4 pm, and a “B” shift from 3 pm until 11 pm. Apart from working these shifts (which were allocated on the basis of a roster drawn up by management) the Plaintiff and his colleagues were required to be on call from 11 pm to 8 pm. There was some dispute as to whether the arrangements as to who was to be on call was determined by management of the HSC on a roster basis, or informally agreed between the Welfare Workers - however, nothing turns on this, since it was common ground that the practice was for whoever had finished a “B” shift to remain on call that night, before starting an “A” shift the following morning. It is also common ground that the purpose of being on call was to deal with emergencies that might arise during the night. 6.The Plaintiff was provided with post-tied quarters, at Room 304 on the third floor of Hang Lai House. The Cheung Hang HSC was located on the first and second floors of the same building. It is common ground that these quarters, which were of some 41.44 square metres (the size of a normal public housing unit for a family of four to six persons), with self-contained kitchen and toilet facilities, were intended to be, and were, occupied by the Plaintiff and his family as their residence. The Plaintiff was exempted from having to pay rent for his quarters, and was entitled to (and claimed) a monthly allowance for domestic appliances and furniture. 7.When the Plaintiff was on call he was on call at his quarters, and was required to remain there for the whole of the period while he was on call. The reason for this appears to have been that the alarm system by which residents of the HSC could summon the assistance of Welfare Workers was one in which there were alarm buttons in each elderly resident’s unit, and also in certain common areas, which could be pressed in case of need to activate alarm bells which were located in the management office of the HSC and in the quarters allocated to each of the Welfare Workers. The management office was open from 8 am to 11 pm, when it would be manned by whoever was on duty, whose responsibility it would be to respond to any alarms, but when it was shut at night, it was the responsibility of whichever Welfare Worker was on call that night to respond to any alarms. On average, the alarm would go off at night once or twice a month. Thus, the Welfare Worker who was on call had to remain in his quarters so that he would hear and respond to any alarm during his time on call. That said, apart from being required to remain in his quarters, while on call the Plaintiff was not subject to any restriction as to what he could do - he was free to cook, eat, spend time with his family, watch television, entertain friends, play cards or mahjong. 8.It seems that in some, newer, HSCs, the alarm system is more sophisticated in that in addition to setting off alarm bells in fixed locations when activated, it also activates pagers carried by the Welfare Workers of that HSC who are on call. In such a case, it might not be absolutely necessary for the Welfare Workers in question to remain in their quarters when on call. However, this system was not available at the Cheung Hang HSC, and it is common ground that (although not apparently recorded in any written instruction) the Welfare Workers at the Cheung Hang HSC were required to remain in their quarters while on call. 9.Certain parts of the evidence filed in respect of these proceedings dealt with a period after June 2001, when the Plaintiff was posted to a different HSC at Kwai Fong Estate, when there appear to have been problems which arose as the result of the unavailability of suitable quarters for him in the HSC to which he had been posted. With the possible exception of the fact that there was, as a result, a period of some four months during which the Plaintiff claimed and was paid an on call duty allowance under CSR 678 (2001 version), I am of the view that these matters are not relevant to the present proceedings, and I do not propose to deal further with them in this judgment. 10.There was also some debate in the course of argument as to when the practice of having to be on call arose. However, it seems tolerably clear that even from the outset of his employment as a Welfare Worker, the Plaintiff was aware of the need to be on call from time to time – apart from the fact that the possibility of having to be on call is specifically mentioned in the circular advertising the vacancy which the Plaintiff responded to, the Plaintiff’s own evidence is that he was told by his co-workers of the need to be on call on a regular basis when he started work, and that he was debating with his superiors the status of the duties performed by him as early as 1997. Again, it seems to me that this is not a matter of particular relevance for the purposes of my decision, and I therefore do not propose to deal with it further. 11.Having set out the factual background, it is necessary to set out the relevant CSRs which arise for consideration. It is common ground that the CSRs (as amended from time to time) are incorporated into and form part of the Plaintiff’s contract of employment with the Housing Department. The relevant provisions in the current (2001 version) of the CSR are CSR 662, 677(1) and 678(1). CSR 662 (2001 version) provides:-
CSR 677(1) (2001 version) provides:-
CSR 678(1) (2001 version) provides:-
12.These were not, however, the form of the CSRs in place at the time when the Plaintiff first took up employment as a Welfare Worker in 1994. At that time, the relevant CSRs were the 1985 version, under which overtime was defined in CSR 665 (1985 version) in identical terms to CSR 662 (2001 version). Stand-by was dealt with in CSR 668 (1985 version) in the following terms:-
At this stage, there was no provision for the payment of any allowance in respect of time spent on call. To make the position clear, there existed CSR 669 (1985 version) which stated:-
13.An on call allowance was introduced for the first time in April 1995. In consequence of this, the CSRs were amended. CSRs 665 and 668 (1985 version) defining overtime and stand-by were not amended, but simply renumbered to become CSR 662 and 665 (1995 version). CSR 669 (1985 version), which referred to being on call, was substantially amended and renumbered to become CSR 674 (1995 version). The new CSR 674 (1995 version) was in identical terms to the present CSR 678 (2001 version), which I have set out above, save that it contained a paragraph (1)(c) which no longer appears. The difference is not material to these proceedings. 14.The Plaintiff’s case is that, against the factual background to which I have referred above, the responsibilities which he undertook, although described as being on call by the Defendant, do not constitute being on call within the terms of CSR 678 (2001 version), but should be considered as either overtime within the meaning of CSR 662 (2001 version) or alternatively stand-by within the meaning of CSR 667 (2001 version). 15.If the responsibilities which he undertook are properly to be considered as being on call, the consequence will be that the Plaintiff will not be entitled to any On-Call Duty Allowance, as he was (save for a short period) provided with quarters at or near his place of work (see CSR 678(1)(b)(iv)). As I have noted, for the period when he undertook on-call responsibilities but was not provided with quarters at or near his place of work, the Plaintiff applied for and was paid the On-Call Duty Allowance. The only additional payment to which the Plaintiff would be entitled would be an overtime allowance in respect of the time that he was actually working, an allowance which he was in fact paid throughout his employment, when circumstances warranted it. It is not disputed that on the occasions when the Plaintiff was called out when on call to deal with an emergency, the period of time actually worked was treated as overtime, for which the Plaintiff was compensated in accordance with the relevant CSRs. 16.In his evidence, and in his and his solicitors’ correspondence with the Housing Department, the Plaintiff’s primary position was, I think, that the duties he performed constituted overtime within the meaning of CSR 662 (2001 version). As a fallback, it was suggested that they might constitute stand-by within the meaning of CSR 677 (2001 version). In argument, Mr Chong, appearing for the Plaintiff, took much the same line, although concentrating on the former, primary, position. The position of the Defendant was that these duties constituted being on call within the meaning of CSR 678 (2001 version). Although the Plaintiff’s Originating Summons envisaged the possibility that these duties might constitute some other form of work or duty within the meaning of the CSRs, no such other form of work or duty was identified by Mr Chong. The freedom of movement issue 17.In support of his contention that what the Plaintiff did was not “on call” but “overtime” or “standby”, Mr Chong argued that CSR 678 (2001 version) envisages that an officer who is on call has complete freedom to be wherever he wishes to be, and to do whatever he wishes to do, subject only to the requirement that he should be continuously and immediately available to report for duty if required. Thus, since the Plaintiff was required to be and remain in his quarters, the duty he performed could not constitute being on call within the meaning of CSR 678 (2001 version). This argument was based on the judgment of Findlay J in Shau Lin Chi v Secretary for Justice [1998] 4 HKC 562, in which Findlay J said:-
18.It seems that Findlay J read CSR 669 (1985 version) as giving the officer on call a choice of whether he wished to be at home, in some other fixed location, or to be contactable through the medium of a paging device. If this were the correct interpretation of CSR 669, it would follow that by directing the Plaintiff to remain at his quarters, the Housing Department was requiring the Plaintiff to perform some duty other than being on call within the meaning of CSR 678 (2001 version), which is in materially identical terms. 19.Mr Wan, appearing for the Defendant, submits that this interpretation is wrong, relying on the decision of Hartmann J in Cheng Ho Kee & others v Secretary for Justice (unreported, CFI, 9 February 2004), in which Hartmann J declined to follow Findlay J’s interpretation of CSR 669 (1985 version), holding instead that CSR 669 (1985 version), the material parts of which are identical to CSR 678 (2001 version), did not necessarily give the officer performing on call duty the freedom of movement which Findlay J considered it did. 20.In my view, the interpretation adopted by Hartmann J is clearly to be preferred. I say this for a number of reasons, principally those explained by Hartmann J in his judgment (at paras 54 to 73). 21.The relevant phrase in each of CSRs 669 (1985 version), 674 (1995 version) and 678 (2001 version) is “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 a pager so that his is continuously and immediately available to report for duty if required ...”. In my view, the natural reading of this phrase is that the three alternatives are all governed by the words “is required to be”. Further, the use of the word “or” between each of the three alternatives (at home, in another fixed location, or through a pager) suggests that as a matter of ordinary English, the three alternatives can and should be read disjunctively, so that each of them is to be read together with those words. So read, the CSR conveys that the officer may be required to be on call at home, or that he may be required to be on call in another fixed location, or that he may be required to be on call through a pager (although it will of course be possible to require him to be on call through a combination of these methods). So read, it is, I think, clear that the choice between the alternatives is not that of the officer, but that of his superior who imposes the requirement on him. 22.Further, as Hartmann J pointed out, if it were entirely up to the officer on call to decide where he should be, there would have been no need to spell out the three alternatives in the CSR. It would suffice to say simply that the officer should be contactable so as to be immediately available to report for duty if required. 23.Hartmann J also pointed out that while in many, or perhaps most, cases it would be sufficient for the officer to ensure that he could be contacted, so that it would not often be necessary to direct the officer to be on call at a specified location, there might be situations in which it would be necessary to do so. As the CSRs are intended to be of general application to the whole of the civil service, and to cover the almost unlimited range of duties that are performed by public servants, it seems to me appropriate to read them in a way which ensures that they are best capable of covering as wide a range of situations as possible. 24.In the present case, given that the purpose of the Plaintiff being on call was to attend to emergencies which might arise at the HSC during the night, and given the nature of the alarm system in place at the Cheung Hang HSC, where the alarm was activated by the resident of the HSC requiring assistance and would sound only in the HSC management office and staff quarters, it is not surprising that it should be thought necessary to require the officer on call to remain in his quarters so that he could be both continuously and immediately available to report for duty if required. 25.Hartmann J also referred in his judgment to an earlier version of the CSR in which there was a provision (then numbered CSR 681), which reads, so far as relevant:-
Mr Wan also placed reliance on this provision. Mr Chong, however, submitted that it was illegitimate to have regard to former provisions which had been amended in order to construe the provision as it presently stands. In my view, it is not necessary to have recourse to this provision for present purposes, since I consider that the meaning of the present CSR 678 (2001 version), so far as the question of whether the choice of location at which to be on call is that of the officer placed on call, or of the superior requiring him to be on call, is plain. However, had there been any ambiguity in the terms of CSR 678 (2001) version, it seems to me that it would have been legitimate to have had regard to earlier versions of the relevant CSRs which might throw light on its meaning. So regarded, the version of CSR 681 set out above clearly demonstrates that the various alternatives are governed by the words “is required to be on call”, as I have explained in paragraph 21 above. 26.Mr Chong, however, submitted that I should not follow the judgment of Hartmann J. He suggested that Hartmann J’s views on the construction of CSR 669 (1985 version) were obiter dicta as the question of whether or not an officer might be required, under CSR 669 (1985 version) to stay at a particular location did not call for determination in Cheng Ho Kee. I am unable to agree with this submission. One of the issues for determination (and in fact the issue on the basis of which Hartmann J disposed of the action) in Cheng Ho Kee was whether the “overnight on call” duty performed by the officers of the Correctional Services Department in that case was a form of on call duty, or whether it should be regarded as being a form of stand-by. The importance of the distinction was that if the “overnight on call” duty were on call within the meaning of CSR 669, it would not attract any compensation (initially because of the terms of CSR 669, but this remained the position, as I understand it, even after the introduction of the On-Call Duty Allowance in 1995, because that allowance was not available to members of the disciplined services, as their pay scale was substantially higher than the equivalent in the general civil service, a difference which reflected the requirement to be on call from time to time - see CSR 678(1)(b)(ii) (2001 version), or CSR 674(1)(b)(ii) (1995 version)). This being so, the determination of this question was clearly central to Hartmann J’s disposition of the proceedings before him, and his reasoning on this point cannot be regarded as being mere obiter dicta. But even if it were, for the reasons which I have set out above, the interpretation which he adopted was, in my view, correct, and one which I would adopt as well. 27.Mr Chong submitted next that Findlay J’s construction should be preferred because Findlay J’s decision was affirmed by the Court of Appeal (see Shau Lin Chi v Secretary for Justice [1999] 2 HKC 585). However, it is clear from the report of the Court of Appeal decision that the Court of Appeal decided the appeal from Findlay J on a quite different basis. In the Court of Appeal, the only issue for consideration was whether or not “some other fixed location” in the relevant CSR could include the officer’s place of work, it having been conceded that the barracks to which Mr Shau was confined for the purpose of being on call were his place of work. There is nothing in the judgment of the Court of Appeal to indicate approval of Findlay J’s reasoning, as opposed to the result of his decision. Indeed, it seems to me, as it did to Hartmann J in Cheng Ho Kee that if the Court of Appeal had agreed with Findlay J’s reasoning, it would have been unnecessary for the Court of Appeal to have determined the question of whether “another fixed location” could include an officer’s place of work, since it would have sufficed to have held that the duty that was performed was not on call because of the restriction that was placed on Mr Shau’s freedom of movement. 28.Mr Chong also submitted that the construction of CSR 669 (1985 version) which Hartmann J adopted defied logic and common sense. This submission was predicated on an example in which a Correctional Services Department officer was asked to stand guard or keep watch in a small (3 feet by 3 feet) cubicle or watchman’s post situated outside the prison at which he worked. Mr Chong suggested that this would amount to being on-call, as the officer would be required to be “at a fixed location” that was not his place of work. I do not think that this could be right - in the example given by Mr Chong, given that the officer was required to keep watch, it seems to me that he would be working, and the cubicle at which he was required to do so would therefore be his place of work, and the time spent keeping watch would attract an overtime allowance. Similarly, if (as posited in another example given by Mr Chong in the course of argument) a Welfare Worker were required to keep watch over the HSC at which he worked by stationing himself outside it, or on its roof, outside his normal (or conditioned) working hours, he would in my view be working, and entitled to an overtime allowance. 29.Mr Chong also emphasised, in the course of his submissions, that Cheng Ho Kee was a decision that concerned officers of the Correctional Services Department, which were a disciplined service. I do not think that this is a relevant distinction. There can be no basis for construing the same provision in the CSRs differently depending on whether the provision is sought to be applied to an officer in the disciplined services as distinct from the general civil service - it seems to me that the same words in the same document must have the same meaning in any context to which they may be relevant, and where they are capable of applying to a range of situations, they must be given the same meaning throughout. 30.Mr Chong also submitted that if the construction of CSR 678 (2001 version) contended for by the Defendant were right, it would mean that the Plaintiff would be severely restricted in his activities, and would not be allowed to visit his colleagues next door to his quarters, or to pop out for a breath of fresh air or exercise, or to visit cooked food stalls for a late night snack, without running the risk of being disciplined for disregarding the instructions of his superior to remain on call in his quarters. That may be so, but it seems to me that if his superior was entitled to give him such instructions by virtue of CSR 678 (2001 version) properly construed, consequences such as these do not provide a basis for adopting a different construction. 31.Mr Chong submitted further that as the terms of CSR 678 (2001 version) were imposed on the Plaintiff by his employers, and were not the subject of negotiation between them, CSR 678 (2001 version) should be construed contra proferentem. I do not see that this argument assists the Plaintiff where, as here, I am satisfied that there is no ambiguity in the terms of the CSR which call for me to choose between alternative possible constructions, one of which is more favourable to the Defendant and the other not. 32.Finally, Mr Chong suggested that I should conclude from the fact that officers of the Correctional Services Department were entitled to a special allowance for performing “overnight on call” duties, even though they had significantly greater freedom of movement than the Plaintiff, provided a pointer to the correct construction of CSR 669 (1985 version). I do not think that this is right. The fact is that officers such as the Plaintiff are now entitled to an On-Call Duty Allowance pursuant to CSR 678(1), if (among other things) they are not provided with quarters at or near their place of work. For most of the period under consideration in these proceedings, the Plaintiff was provided with such quarters, and so was not entitled to any On-Call Duty Allowance. Whether or not this is fair or reasonable is not, in my view, relevant to the question of construction that I have to decide, and such questions are, in any event, not matters on which the courts can be expected to express any views. 33.I therefore conclude that on the true construction of CSR 678 (2001 version), it was open to the Plaintiff’s superior officer to require him to remain on call at home, and that in consequence the duty performed by the Plaintiff in this case was that of being on call within the meaning of CSR 678 (2001 version), notwithstanding that he did not have complete freedom of movement. 34.I should add that I do not think that anything turns on the Plaintiff’s having applied for and received the On-Call Duty Allowance for some four months in 2002-2003. It seems that the Plaintiff was not required to remain in his quarters while on call during this period, as he was contacted, when necessary, through his mobile telephone. That being so, he was not under any restrictions as to where he could go, and his applying for and accepting the On-Call Duty Allowance would not be inconsistent with his stance in these proceedings. Whether the Plaintiff was working or at his place of work 35.Mr Chong also argued that in this case, the Plaintiff’s quarters should be regarded as being his “place of work”, and that the on-call duty which he performed there as being “work” so as to amount to overtime within the meaning of CSR 662 (2001 version). He suggested that notwithstanding that the Plaintiff was free to spend time with his family, receive visitors, cook, eat, sleep or watch television, the Plaintiff should be regarded as working because he had to be alert to the alarm bell sounding, in the event that it went off. He suggested that by placing the alarm bells in the Plaintiff’s quarters, the Housing Department had turned the Plaintiff’s quarters into his place of work. 36.This submission appears to be based on a different passage in Findlay J’s judgment in Shau Lin Chi, in which Findlay J said (at p.566G):-
37.With all respect to Findlay J, I have great difficulty in accepting that the latter sentence is an appropriate definition of “work” for the purposes of the CSRs with which I am concerned. It is clear from the structure of CSRs 662, 677 and 678 (2001 version) that doing work which amounts to overtime, being on stand-by and being on-call are three distinct concepts. To treat waiting, pursuant to instructions, for the need to arise to perform a specific task as work would mean that every officer who obeys an instruction either to stand by at his place of work, or to be on call (at whatever location may be specified by his superior officer) would be working, and thus eligible for overtime allowance. There would, in effect, be no difference between the three concepts - to my mind, this cannot be right, since the structure of this part of the CSRs makes it clear that they are distinct concepts, which give rise to different consequences in terms of additional pay or time off in lieu thereof. 38.Further, it seems to me that it is unreal to suggest that the Plaintiff’s quarters were his place of work, having regard to the fact that the Plaintiff was free to sleep, eat, and otherwise entertain himself, his family and friends at them even though he was on call. It is not the Plaintiff’s case that he was required to remain awake, waiting for an alarm to ring, throughout the period that he was on call. It seems to me that in those circumstances, the position is that the Plaintiff cannot be said to be working during the time that he was on call, and that he would only be working during the time that he was occupied in responding to and dealing with an alarm, should one go off during his time on call. 39.Mr Chong suggested that the Plaintiff’s quarters could, in certain circumstances, also be his place of work, for example if he had to give attention or treatment to a resident of the HSC in his quarters. While I would accept that the Plaintiff would be working if he were to do this, I doubt whether this would suffice to turn his home into his place of work. There is does not appear to be any suggestion in the Plaintiff’s evidence that this situation ever arose in fact (let alone arose regularly) while he was on-call. On the contrary, the impression that is given in the evidence is that when an alarm was sounded, the Plaintiff would leave his quarters to investigate, and deal with whatever problem had arisen. In my view, the fact that a person may from time to time take work home, or work from home, does not make his home his place of work, and certainly does not do so at times when he is not doing any work there. 40.I am therefore of the view that in being on call at his living quarters, the Plaintiff was neither working, nor standing by at his place of work, so as to come within either CSR 662 or 677 (2001 version). Conclusion & Costs 41.For these reasons, I am of the view that the responsibilities which the Plaintiff undertook from his quarters from time to time between 11 pm and 8 am the following morning constituted “on-call” duties within the meaning of CSR 678 (2001 version), and I shall make a declaration to that effect. So far as the costs of these proceedings are concerned, since the declaration which I have made is as contended for by the Defendant, I see no reason why costs should not follow the event, and I therefore make an order nisi that the Plaintiff should pay the Defendant its costs of these proceedings, to be taxed on the party and party basis if not agreed.
Mr K M Chong, instructed by Messrs John Ho & Tsui, for the Plaintiff Mr Daniel Wan, instructed by the Department of Justice, for the Defendant |
Cases cited in this judgment