Cheng Chun-ngai Daniel v. Hospital Authority

Case No.HCAL 202/2002

Court

High Court CFI

Date12 Nov 2004

Judge—

Case Document

100%Judiciary

HCAL 202/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.202 OF 2002

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BETWEEN

	CHENG CHUN-NGAI DANIEL	Applicant
	and
	HOSPITAL AUTHORITY	Respondent

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Before : Hon Hartmann J in Court

Dates of Hearing : 4 and 5 November 2004

Date of Handing Down Judgment : 12 November 2004

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J U D G M E N T

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Introduction

1.The applicant in this matter was at all material times employed by the respondent, the Authority, as an audiologist. An audiologist is a person versed in the science of hearing.

2.By letter dated 10 October 2002, the applicant was dismissed from his employment with the Authority. By his own admission, the applicant had, over an extended period of time, carried out private studies on patients for the purpose of eventually putting together a formal research paper. The applicant, however, had not obtained the prior approval of the Authority to carry out these studies. In the circumstances of this case, the conduct of the studies without prior approval was considered to constitute gross misconduct.

3.The applicant has instituted two sets of proceedings to challenge his dismissal. First, he has instituted proceedings for wrongful dismissal in the Labour Tribunal. These proceedings, in which damages have been claimed, have been transferred to the District Court and have been adjourned pending the outcome of the applicant’s second set of proceedings; namely, the proceedings instituted in this court. Before this court, the applicant has sought an order of certiorari to quash as unlawful the decision to dismiss him. He has also sought a series of declarations to the same effect.

4.As to why the applicant has sought to proceed by way of judicial review, I am informed by Mr Harris, his counsel, that, outside of employment by the Government or the Hospital Authority, audiologists in Hong Kong have very restricted job opportunities. Outside of public service; that is, with the Government or the Authority, there is only a very limited need for audiologists and, assuming that the applicant is able to obtain employment as an audiologist in the private sector — which is far from certain — it will be upon terms considerably worse than he has enjoyed with the Authority. It is for this reason, Mr Harris has said, that the applicant seeks a remedy available only from this court; that is, reinstatement to his post. That will be obtained by a quashing of the decision to dismiss him.

5.The Authority, however, has raised the preliminary point that the issue of the applicant’s dismissal from employment is a matter of private law, arising out of contract. The applicant has suffered no infringement of any public law right. That being the case, any complaints that the applicant may have as to the manner of his dismissal are matters for private law proceedings — proceedings which he has already instituted — and not proceedings by way of judicial review.

6.At the commencement of the hearing, Mr Harris, for the applicant, sought to deal first with the merits of the applicant’s various complaints. These complaints focus on the fairness of the procedures followed by the Authority in determining that the applicant was guilty of gross misconduct and ordering his dismissal. Mr Harris proposed to deal with the issue of amenability only as a final issue. Mr Huggins SC, for the Authority, was opposed to this course. If it was adopted, he said, it would oblige the Authority to expound in detail the merits of its case before the fundamental issue of whether it was appropriate for this court to determine those merits was ruled upon.

7.In my judgment, as the matter had been set down for two days only and as it was apparent that, if the substance of the applicant’s complaints were argued first, the hearing would have to be adjourned part heard, it was preferable to determine the patently fundamental — and perhaps conclusive — issue of amenability as a preliminary issue. I so directed. In the result, this judgment is restricted to that preliminary issue.

The applicant’s employment

8.The applicant was originally employed as an audiologist by the Hong Kong Government. However, in late 1991 he ceased employment with the Government and entered into employment with the Authority. The applicant did so by way of contract. Two letters evidence this contract. The first is a letter of 19 November 1991 from the Authority offering the applicant employment “subject to the terms and conditions as set out in this letter, the prevailing HA [Hospital Authority] Personnel Policies and Procedures Manual and any other rules and regulations that the HA, may promulgate from time to time”. The second is the applicant’s letter dated 22 November 1991 in which he said that he accepted the offer of appointment as a ‘scientific officer (medical)’ on the terms and conditions set out in the Authority’s letter of 19 November 1991. The applicant continued by saying : “I understand that by this acceptance, I have irrevocably elected to transfer to HA terms and conditions of service.”

9.What then is the nature of these ‘HA terms and conditions of service’? Are they fashioned by statutory demands or are they the result of concensus; that is, of agreement reached between the Authority and its employees?

10.The Authority is a body corporate created in terms of the Hospital Authority Ordinance, Cap.113 (‘the Ordinance’). As such, although independent of Government, it is a public body. Its purpose, as defined in the Ordinance, is to manage and control public hospitals and to provide all necessary services in those hospitals.

11.In terms of s.5 of the Ordinance, the Authority is vested with the power to do “all such things as are necessary for, or incidental or conducive to, the better performance of its functions”. Included in this general power is the power, described in s.5(2), to—

“employ such persons as it thinks fit to carry out hospital services or any other matter relating to the performance of its functions or the exercise of its powers.”

12.While the Authority is given the statutory power to employ persons, neither the Ordinance (nor any subordinate legislation made pursuant to it) regulate the terms upon which such employment shall be subject. The legislature has not seen fit to regulate any of the terms and conditions of employment that the Authority is obliged to agree with its employees. In particular, the legislature has not seen fit to regulate the grounds upon which it can dismiss them or the procedures that must be followed to ensure fairness of any dismissal.

13.The Personnel Policies and Procedures Manual (‘the Manual’) regulates the employment of the Authority’s employees. For example, chapter J1 of the Manual deals with matters of discipline. By way of illustration, para.52, which concerns disciplinary procedures for alleged gross misconduct, commences :

“When an employee is alleged to have committed a gross misconduct, the HCE or CE, as appropriate, will cause an investigation to be carried out as is appropriate in the circumstances. The employee will be informed of the nature of the case against him and be given the right to make submissions.”

14.The contents of the Manual, however, are not in any way regulated by statute or subordinate legislation. The disciplinary procedures set up by the Authority and contained within the Manual depend purely on the contract of employment between the applicant and the Authority. They are therefore procedures of a purely private or domestic character.

15.In the result, in my judgment, the body set up by the Authority to determine whether the applicant should be dismissed was a purely private or domestic tribunal. It was not performing any public function.

When is judicial review appropriate?

16.There is no universal test for determining when a decision is amenable to judicial review. It is settled, however, that the decision must be one of a public nature as opposed to one of a purely private or domestic character. The difficulty arises, of course, in seeking to determine whether any public element in a decision or its public consequence is such as to render it amenable to public law.

17.The source of the power being exercised by the decision-maker may be an indicator. If the source is statute or subordinate legislation then the decision will be subject to judicial review.

18.In the present case, in dismissing the applicant for gross misconduct, the Authority sought to exercise powers given to it in the Manual. The Manual was therefore the source of the power it sought to exercise. But that manual, as I have said, was not in any way underpinned by statute. The Manual constituted part of the terms and conditions of the applicant’s employment because the applicant had agreed that it should do so. In short, the source of the power exercised by the Authority was purely contractual.

19.But an administrative power may not have its origin in statute or subsidiary legislation and still be amenable to judicial review. In order to determine whether it is amenable, what must be considered is the essential nature of a decision made pursuant to the exercise of that power and the consequences of its application. As Lloyd LJ expressed it in R v. Panel on Take-overs and Mergers ex p Datafin plc [1987] 1 QB 815 (at 847) :

“… it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may … be sufficient to bring the body within the reach of judicial review.”

Lloyd LJ continued :

“The essential distinction, which runs through all the cases to which we referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other.”

20.Woolf LJ, in R v. Derbyshire County Council, ex p Noble [1990] 1 CR 808 (at 819) agreed that what mattered was not so much the source of administrative power but its nature, that nature to be ascertained from the ‘actual, factual’ application of the power in any particular case. If that ‘actual, factual’ application constituted a public law function, or if it had public law consequences, then it would be subject to judicial review. Woolf LJ expressed it thus :

“As I understand the approach which the courts now adopt, and which has been made clear in a series of cases, it is to look at the subject matter of the decision which it is suggested should be subject to judicial review and by looking at that subject matter then come to a decision as to whether judicial review is appropriate.

That approach is an approach which can be found, for example, in Reg. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Everett [1989] Q.B. 811, in which this court had to decide whether or not the issue of or refusal to issue a new passport to the applicant was a matter which was appropriate for judicial review. Having referred to the speeches in Council of Civil Service Unions v. Minister for the Civil Service [1985] I.C.R.14, O’Connor L.J., in giving the judgment of the court, said [1989] Q.B.811, 817 :

‘Three of their Lordships, Lord Diplock, Lord Scarman and Lord Roskill unequivocally held that judicial review did lie of decisions taken under the prerogative. Lord Scarman in his speech stated that it was not the origin of the administrative power, but it was the actual factual application which had to be considered.’

I would echo those remarks of O’Connor L.J. and suggest that what one does is look at the actual, factual application.”

Employment by a public authority

21.The applicant was, of course, employed by a public body, one set up in terms of the Ordinance. However, employment by a public authority does not per se inject any element of public law into the relationship between the authority and its employees. Nor is that element injected by any interest that the public at large may have in ensuring that the authority acts in accordance with certain standards vis-a-vis its employees. As Sir John Donaldson MR said in R v. East Berkshire Health Authority, ex p Walsh [1984] 3 WLR 818 (at 826) :

“Employment by a public authority does not per se inject any element of public law. Nor does the fact that the employee is in a ‘higher grade’ or is an ‘officer’. This only makes it more likely that there will be special statutory restrictions upon dismissal, or other underpinning of his employment : see per Lord Reid in Malloch v. Aberdeen Corporation, at p.1582. It will be this underpinning and not the seniority which injects the element of public law. Still less can I find any warrant for equating public law with the interest of the public. If the public through Parliament gives effect to that interest by means of statutory provisions, that is quite different, but the interest of the public per se is not sufficient.”

Sir John Donaldson continued :

“I have therefore to consider whether and to what extent the applicant’s complaints involve an element of public law sufficient to attract public law remedies, whether in the form of certiorari or a declaration. That he had the benefit of the general employment legislation is clear, but it was not contended that this was sufficient to attract administrative law remedies.”

22.In the result, although the applicant had been employed by a public authority, Sir John Donaldson concluded that there was “no ‘public law’ element in the applicant’s complaints which could give rise to any entitlement to administrative law remedies.”

23.In the same case, Purchas LJ summed up the issue, in my view, in the clearest of terms when he said (at 181) :

“At the end of the day I find myself returning to the basic question, did the remedies sought by the applicant arise solely out of a private right in contract between him and the authority or upon some breach of the public duty placed upon that authority which related to the exercise of the powers granted by statute to them to engage and dismiss him in the course of providing a national service to the public? In my judgment there is no arguable case which can be mounted upon the facts disclosed even if they are all assumed in favour of the applicant to the effect that the remedies sought by him stem from a breach which can be related to any right arising out of the public rights and duties enjoyed by, or imposed upon the health authority. The only remedies sought by the applicant arise solely out of his contract of employment with them as opposed to any public duty imposed upon the health authority.”

24.Ex p Walsh was considered in depth and followed in ex p Noble (cited in para.19 above), the headnote of that Court of Appeal judgment reading :

“… that, although the applicant’s engagement involved the carrying out by him of certain functions of a public nature, his complaint was directed to the circumstances surrounding his dismissal, and an adjudication on that would be concerned, not with any breach by the council of a public duty placed on it, but solely with such private rights as the applicant might be entitled to by virtue of his private contract of employment with the council; that, therefore, there did not exist the element of public law which was necessary to enable the applicant to proceed by way of judicial review.”

25.Ex p Walsh and ex p Noble have been consistently followed by our courts of first instance. See, for example, Sit Ka Yin Priscilla v. Equal Opportunities Commission [1998] 1 HKC 278 (per Keith J) and Fraser v. The Chief Executive of the HKSAR [2000] 3 HKLR 492 (per Cheung J).

26.Finally, it follows from the principles I have described that judicial review is not appropriate where the only issue is whether or not there is a breach by a public authority of its own internal procedures : essentially what is complained off by the applicant in the present case. In this regard, see, for example, McLaren v. Home Office [1990] 1CR 824 in which, Woolf LJ said (at 837) :

“There can be situations where although there are disciplinary procedures which are applicable they are of a purely domestic nature and therefore, albeit that their decisions might affect the public, the process of judicial review will not be available.”

27.In the circumstances, it seems to me that the law in this jurisdiction is now clear. Within the context of employment, judicial review is not appropriate to impugn the decision of a purely private or domestic tribunal, for example, as in the present case, a disciplinary tribunal set up by an employer. Such a tribunal does not exercise any public function. The nature of any decision made by it has consequences only for the employee; it has no broader public consequence. If the decision of such a tribunal has resulted in a wrongful dismissal, the remedy is by way of the common law, or through the Labour Tribunal, for damages.

The applicant’s assertions

28.While Mr Harris, for the applicant, recognised the difficulties he faced in light of the jurisprudence to which I have made reference, he contended that judicial review was nevertheless appropriate. I trust I do his arguments no injustice if I attempt to summarise them as follows.

29.First, said Mr Harris, it had to be recognised that the prerogative writ of certiorari was not to be specifically defined and thereby specifically limited. Its ambit must be allowed to expand when necessary to meet changing conditions.

30.Second, said Mr Harris, the common law has always looked more to remedies than adherence to principle. Ex p Walsh was decided in part because the applicant in that case had available to him adequate alternative remedies and was not therefore required to look to remedy by way of the prerogative writ. In the present case, the applicant had been unfairly dismissed. His chances of pursuing his chosen occupation elsewhere in Hong Kong (for any reasonable reward) are negligible. That being so, the only just remedy open to him was one that quashed the decision to dismiss him and ordered his reinstatement. The Hong Kong legislation, however, did not give the power to order reinstatement unless an employer agreed. In the present case the employer did not agree. Reinstatement therefore could only be obtained by way of certiorari.

31.Third, said Mr Harris, a consideration of the merits of the present case revealed unfair behaviour on the part of the Authority that should not be tolerated in a public body. If the Authority had the statutory power to employ people surely that mirrored a statutory obligation to deal with them fairly.

32.Fourth, said Mr Harris, by unfairly dismissing the applicant, the Authority had breached art.33 of the Basic Law, that article reading : “Hong Kong residents shall have freedom of choice of occupation.”

The merits

33.In my judgment, in looking to the question of amenability, the merits of the applicant’s case can be of little, if any, relevance. Whether judicial review is appropriate in any given case is not determined, as I see it, by the degree to which an applicant has been treated wrongly (in the public law sense) but whether the body that is culpable has exercised a public function or has exercised that function in a way that has public law consequences.

34.It is not as if private law is bereft of remedies. The principle, a basic one, is that in private law matters a litigant must look to private law remedies. As Lord Donaldson MR said in ex p Walsh (at 165) :

“The ordinary employer is free to act in breach of his contracts of employment and if he does so his employee will acquire certain private law rights …”

35.In looking to the issue of amenability, in so far as the merits may be relevant, I have proceeded on the assumption (for this limited purpose only) that the applicant’s complaints of unfair treatment do have merit. The question therefore has been : even in light of this, is judicial review an appropriate remedy?

The limits of certiorari

36.In support of his contention that the prerogative writ was not to be specifically defined and thereby limited, Mr Harris made reference to the words of Lord Parker CJ in R v. Criminal Injuries Compensation Board, ex p Lain [1967] 2 ALL ER 770, at 778 :

“The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been, and ought not to be, specifically defined. They have varied from time to time, being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word, but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is from the agreement of the parties concerned. Finally, it is to be observed that the remedy has now been extended (see R v. Manchester Legal Aid Committee, Ex p R.A. Brand & Co., Ltd. ([1952] 1 All ER 480, [1952] 2 QB 413), to cases in which the decision of an administrative officer is arrived at only after an inquiry or process of a judicial or quasi-judicial character. In such a case this court has jurisdiction to supervise that process. We have, as it seems to me, reached the position when the ambit of certiorari can be said to cover every case in which a body of persons, of a public as opposed to a purely private or domestic character, has to determine matters affecting subjects provided always that it has a duty to act judicially.”

[my emphasis]

37.It will be seen from the words that I have emphasised that Lord Parker did recognise one constant limit to the remedy of certiorari; namely, that it would only be invoked in respect of decisions that contained a sufficient public element; decisions therefore made in the exercise of some form of public duty. But, as I have found, the body set up by the Authority in the present case was a purely private or domestic tribunal, its authority derived solely from contract. It was not performing any public duty. While I accept fully therefore that the remedy provided by the prerogative writ may be extended, I do not accept that it may be extended in the present case to cover the decision of the Authority to terminate the applicant’s employment.

Availability of alternative remedies

38.In ex p Walsh, said Mr Harris, the English Court of Appeal, in finding that there was no required element of public law involved in the dismissal of the applicant in that case, was very much alive to the fact that the applicant had available an alternative remedy; that is, by way of proceeding under employment protection legislation. In this regard, Mr Harris made reference to the judgment of May LJ in which he said :

“… over the last decade Parliament has enacted a body of employment protection legislation, now consolidated in the Employment Protection (Consolidation) Act 1978. This has created a new cause of action and consequent remedies for employees who have been ‘unfairly’ dismissed. An unfair dismissal under the statute is by no means simultaneously a wrongful dismissal at common law. This new cause of action, however, and the statutory remedies that go with it, are not enforceable by ordinary action, nor indeed by judicial review : they are only available to an employee upon a successful application to an industrial tribunal. As Sir John Donaldson M.R. has said, the applicant has indeed made an application to such a tribunal alleging that he has been unfairly dismissed and seeking compensation. Any hearing of this has been adjourned pending the determination of the instant proceedings for judicial review.

Upon a successful application to an industrial tribunal alleging unfair dismissal, the tribunal may in its discretion order the reinstatement of the employee : see section 69 of the Act of 1978. Such an order cannot be specifically enforced against the employer, but if the latter does not reinstate the employee whom ex hypothesi he has unfairly dismissed, then the employee is entitled to compensation under sections 71 to 76 of the Act of 1978, which will in most cases well exceed any damages to which the employee might have been entitled for wrongful dismissal at common law.” [my emphasis]

May LJ continued :

“For all these reasons I think that earlier decisions in this general field must now be read in the light of the employment protection legislation to which I have referred. The concept of natural justice involved in many of the cases is clearly now subsumed in that of an ‘unfair dismissal’ …

Further, I think that at the present time in at least the great majority of cases involving disputes about the dismissal of an employee by his employer, the most appropriate forum for their resolution is an industrial tribunal. In my opinion the courts should not be astute to hold that any particular dispute is appropriate for consideration under the judicial review procedure provided for by R.S.C., Ord.53. Employment disputes not infrequently have political or ideological overtones, or raise what are often described as ‘matters of principle’ : these are generally best considered not by the Divisional Court but by an industrial tribunal to the members of which, both lay and legally qualified, such overtones or matters of principle are common currency.”

39.As I perceived Mr Harris’ argument, it was to the effect that, if there had not been an adequate alternative remedy available under employment protection legislation, the court in ex p Walsh may well have concluded that there was a sufficient public element in the applicant’s employment and that the remedy of certiorari should be made available. As it was, with legislation providing an adequate alternative remedy, the principle was adopted that it was more appropriate that the applicant’s dispute should be determined by way of that legislative process.

40.While ex p Walsh had been followed in Hong Kong, said Mr Harris, it had not been considered in this light. For while Hong Kong does have employment protection legislation, he said, that legislation does not provide the adequacy of remedies contained in the English legislation, not at least in respect of reinstatement. In the result, said Mr Harris, if ex p Walsh was applied to Hong Kong without bearing this in mind, it would create a situation in which a person in the position of the applicant would be left with no effective remedy (i.e. reinstatement) in either public or private law.

41.However, while it is true that the legislation referred to in ex p Walsh does provide for orders of reinstatement, as May LJ noted (see para.38 above) an order for reinstatement is not enforceable. An employer, made the subject of such an order, may refuse to reinstate an employee. If the employer does so, it is liable only for enhanced damages. In my judgment, therefore, if Mr Harris has attempted to equate the power of reinstatement contained in the English legislation with the remedy of certiorari, he has overstated his case.

42.It is to be noted that the relevant Hong Kong employment legislation also allows for reinstatement of an employee. But that order may only be made if an employer agrees. If an employer does not agree, that employer will be liable to damages. Accordingly, both the English legislation and the Hong Kong legislation allows for reinstatement. In both cases, however, reinstatement is not enforceable unless an employer agrees.

43.In the present case, the Authority has made its plain that it is not prepared to reinstate the applicant even if this refusal results in an obligation to pay damages for wrongful dismissal. This being so, it seems to me that under both the English legislation and the Hong Kong legislation the applicant would not be entitled to reinstatement but would be limited to damages, the only difference perhaps being that under the English legislation those damages may to some degree be enhanced.

44.In looking to the ‘preliminary observations’ of May LJ in ex p Walsh (cited in para.38 above), I confess that, viewed in a public law context, I find them unsurprising. It must be remembered that proceedings for judicial review are subject always to two principles. The first, a fundamental principle, is that judicial review is a discretionary remedy. The second, flowing very much from the first, is that, where an alternative remedy is available, a party subject to disciplinary proceedings (as in the present case) should normally be left to pursue that remedy; judicial review in such a case should only be granted in exceptional circumstances : see Stock Exchange of Hong Kong Ltd v. Onshine Securities Ltd [1994] 1 HKC 319.

45.On my reading of ex p Walsh, the Court of Appeal was doing no more than considering the application for judicial review in the light of these principles. What was not being said was that, absent an adequate alternative remedy, the court would then, by that reason alone, be entitled to find the existence of a sufficient public element in the matter when in fact there was none.

46.What must be emphasised is that in ex p Walsh the issue of the existence of a sufficient public element was not clear cut. In this regard, I need only refer to the headnote. The headnote sets out the following background :

“The applicant, a senior nursing officer employed by the health authority under a contract which incorporated the Whitley Council agreement on conditions of service in the health service, was dismissed by a district nursing officer for misconduct. He applied for judicial review under R.S.C., Ord.53 for an order of certiorari to quash the dismissal on the grounds that the district nursing officer had no power to dismiss him and that there had been a breach of the rules of natural justice in the procedure which led up to his dismissal.

The headnote describes the finding of the court in the following terms :

“… that an applicant for judicial review had to show that a public law right which he enjoyed had been infringed; that where the terms of employment by a public body were controlled by statute, its employees might have rights both in public and private law to enforce those terms but a distinction had to be made between an infringement of statutory provisions giving rise to public law rights and those that arose solely from a breach of the contract of employment; that, since the health authority had performed its duty to incorporate the conditions and terms that had been negotiated by the Whitley Council in accordance with the statutory procedure for health service employees, the applicant was not seeking to enforce a public right but his private contractual rights under his contract of employment and, therefore, his application was a misuse of the procedure for judicial review …”

47.It will be seen, therefore, that the applicant in ex p Walsh sought judicial review not only on the basis that he was employed by a public authority but, in addition, on the basis that there were statutory directives concerning terms and conditions of his employment.

48.In the present case, the applicant is only able to base his claim on the fact that the Authority is a public authority. There can be no argument that his terms and conditions of employment have in any way, directly or indirectly, been directed by statute.

49.In the course of his argument, Mr Harris said that if a statutory power gave the right to a public authority to employ people — as the Ordinance has done in the present case — that alone must also reflect an obligation to adhere to levels of fairness in the employment process which, if breached, will constitute a breach of that authority’s public law duties. I disagree. In the present case, the Ordinance gives the power to the authority to employ such persons as it thinks fit; it does not in any way regulate the process of, or the terms and conditions relevant to, such employment. Clearly, the Authority is thereby able by way of private contract to enter into agreements of varying kind with a broad cross section of persons. Those contracts, if they give rights to a dispute, are to be determined in private law.

Art.33 of the Basic Law

50.To repeat the citation given in para.32 above, art.33 reads : “Hong Kong residents shall have freedom of choice of occupation.”

51.Mr Harris contended that, by dismissing the applicant in a manner and for a reason which it had no right to do, the Authority has effectively denied the applicant the right guaranteed by art.33 to continue to work in his chosen occupation of an audiologist, an occupation for which he is professionally qualified and in respect of which he has considerable experience.

52.This denial has come about, said Mr Harris, because audiology is a profession which opens itself to limited employment prospects. While a number of audiologists may find a place in the private sector, the overwhelming majority must rely on employment in the public sector; that is, with Government or with the Hospital Authority.

53.If the applicant is denied reinstatement — the remedy which he seeks by way of certiorari— he will, for all practical purposes, be unable to obtain further employment in the public sector. He will therefore have to look to the private sector but that sector has limited opportunities and, as an employee, the pay levels, Mr Harris asserted, will be dramatically lower than those enjoyed by experienced audiologists in public sector employment.

54.Art.33 does not yet appear to have been the subject of judicial scrutiny. The article appears in Chapter III of the Basic Law and is therefore a fundamental right guaranteed to all residents. As such, the right is to be interpreted generously and purposively.

55.However, as I read the article, even when it is interpreted generously and purposively, it is not to be interpreted in an active sense, by which I mean that it does not guarantee the right of employment in any particular field of occupation. Whether employment can in fact be obtained will depend on the laws of supply and demand as they apply in the market place. The article, in my view, is to be interpreted rather in the light of what it seeks to prevent; namely, outside of issues of national service, should they ever arise, any form of conscription to particular fields of occupation.

56.In the present case, it seems to me that the applicant’s complaint is based not on any denial of his right to follow his own occupation but rather on the fact that, because of the nature of that occupation, the laws of supply and demand are at this time preventing him from doing so, at least at a level of remuneration which he personally finds acceptable. In my judgment, while I acknowledge his predicament, I do no consider it to be one which falls within the contemplation of art.33.

Conclusion

57.By way of a postscript, it is to be emphasised that in this judgment I have not considered the assertion raised during the course of argument that the applicant is the beneficiary of some sort of legitimate expectation that the Authority must treat him on the basis that, contrary to the specific written terms of his employment, he is to be treated in respect of his employment as if he has remained a civil servant and has not transferred from civil service terms and conditions. This matter was raised too late in the day for Mr Huggins, counsel for the Authority, to deal with it fully in reply.

58.However, leaving aside any question of legitimate expectation, for the reasons contained in this judgment, I am satisfied that the applicant’s case does not contain the required public law element to render it amenable to judicial review. The evidence shows that the remedies sought by the applicant arise solely out of a private right in contract between him and the Authority as opposed to any public duty imposed upon the Authority.

59.If, however, the applicant seeks to argue the issue of legitimate expectation, leave is granted for him to do so, that leave to include the right within 30 days of this judgment to file a further affirmation in support, the Authority having the right to file an affirmation in reply within 21 days thereafter.

60.If the applicant does not file an affirmation in terms of para.59 within the stated time period or advise the court within that time that it intends to proceed to argue the issue of legitimate expectation without the support of any further affirmation, then this application for judicial review will stand dismissed.

61.In the circumstances, costs are reserved.