The Association of Expatriate Civil Servants of Hong Kong and Others v. The Secretary of the Civil Service and Another
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1. Civil servants in Hong Kong are employed on either overseas or local conditions of service. The existence of these two sets of conditions reflects Hong Kong’s historical status as a colony of the UK, and are in part the legacy of an unquestioned assumption, prevalent until the Second World War, that English-speaking British expatriates were best equipped to administer Hong Kong, at least in the higher echelons of the Civil Service. The existence of different sets of conditions for different
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1994 MP No. 3037 IN THE SUPREME COURT OF Hong Kong HIGH COURT ____________ BETWEEN
____________________ Before: The Hon Mr. Justice Keith in Court Date of Hearing: 14th - 15th, 18th - 22nd, 25th - 29th September, 2nd & 4th October 1995 Date of Handing Down Judgment: 31st October 1995 HEADNOTE (1) On an application for judicial review made by a representative body on behalf of its members, the body has the standing to make the application if it is possible that at least one of its members (a) is, or will be, affected by the decision challenged, and (b) wishes the body to challenge the decision on his behalf. It is not necessary for the body to identify such a member, unless it would be easy to do so. (2) The right of access to the Civil Service protected by Art. 21(c) of the Bill of Rights includes access to the terms and conditions of service and the opportunities for promotion enjoyed by other civil servants. (3) A restriction on the right of access to the Civil Service amounts to an infringement of Art. 21(c) if that restriction is attributable to one of the distinctions prohibited by Art. 1(1) or is otherwise unreasonable. The test to be applied to determine whether a restriction on the right of access to the Civil Service is reasonable is whether it was reasonably open to the Secretary for the Civil Service to conclude that the restriction was reasonable. (4) The words “permanent resident” in Art. 21 of the Bill of Rights refer to a person with the right of abode in Hong Kong under the Immigration Ordinance (Cap. 115). (5) In construing an ordinance, no weight can be attached to what purports to be an authoritative statement of legislative intention if it is not possible to discern what the legislative intention actually was. (6) The conventional view that mere proposals (which might not be put into effect) are not susceptible to judicial review has not been affected by the decision of the House of Lords in R. v. Secretary of State for Employment ex p. Equal Opportunities Commission [1994] 2 WLR 409 that there does not have to be a “decision” for a dispute to be amenable to judicial review. _______________ JUDGMENT _______________ INDEX Topic Introduction The localisation of the Civil Service The Civil Service Regulations The enactment of the Bill of Rights The decision challenged Delay Standing The proper construction of Art. 21(c) of the Bill of Rights The original transfer scheme
The modified transfer scheme
The opening-up scheme
The Principal Official posts The uniform terms scheme The offers to the four individual Applicants Conclusion INTRODUCTION 1. Civil servants in Hong Kong are employed on either overseas or local conditions of service. The existence of these two sets of conditions reflects Hong Kong’s historical status as a colony of the UK, and are in part the legacy of an unquestioned assumption, prevalent until the Second World War, that English-speaking British expatriates were best equipped to administer Hong Kong, at least in the higher echelons of the Civil Service. The existence of different sets of conditions for different civil servants has been described by the Secretary for the Civil Service as “anachronistic”, and the Government has for some time recognized the need to bring uniformity to the contracts of civil servants. However, interim measures which the Government has taken towards the adoption of a common set of conditions of service have been met with resistance from expatriate civil servants. In these proceedings, those measures, to the extent that they increase the pace of the localisation of the Civil Service, are the subject of a sustained legal challenge. THE LOCALISATION OF THE CIVIL SERVICE 2. The policy of successive British Governments. Most people think that the policy of localising the Civil Service in Hong Kong is a recent phenomenon, made necessary by the historical imperative of the impending change in Hong Kong’s sovereignty. That is not the case. By the end of the Second World War, the policy of the British Government was to encourage and promote the recruitment of local people to the Civil Service in the territories administered by the Colonial Office. “[T]he public services [of the territories administered by the Colonial Office] …must to the greatest possible extent be staffed by local people. It is a fully accepted principle that there should be no barrier to the appointment of … a locally recruited public servant to any post which he is qualified to fill.”[1] 3. However, it was recognized “that for a long time to come many [of the territories concerned would] not be able to find from their own resources enough suitably qualified staff to fulfil all the requirements of modern administration.”[2] It was acknowledged, therefore, that the recruitment of local staff would have to be supplemented, especially in the higher grades, by officers from overseas. It was accepted that such officers should continue to enjoy certain benefits which reflected their expatriate status, such as the provision of accommodation, home leave and assisted passages – the rationale for such benefits being “to increase the amenities and attractiveness of the Colonial Service and to maintain the discomforts and disadvantages which work[ing abroad was] liable to entail.”[3] 4. It was also contemplated that officers from overseas would be appointed “on the usual permanent basis”, though there would also be “appointments on contract for a term of years”.[4] However, the long tenure of officers from overseas restricted recruitment opportunities for the increasing numbers of qualified local candidates. In the course of time, therefore, the proportion of officers from overseas being appointed on agreement terms increased by a significant margin. By 1960, the emphasis was to appoint officers from overseas on agreement terms “wherever this [could] be done without prejudice to the essential staffing requirements of the territory.”[5] 5. The application of these policies in Hong Kong. The policy of local recruitment wherever possible was quickly recognised in Hong Kong. In 1947, it was recommended that if “genuine Hong Kong candidates whose roots are in [Hong Kong] … are available with the necessary qualifications they should be given preference over other candidates who come into [Hong Kong] from outside.”[6] By 1961, the policy had become sufficiently established for the acting Colonial Secretary to report that the policy of the Hong Kong Government was “to appoint local officers whenever qualified candidates [could] be found, and to engage overseas candidates only when qualified local candidates [were] not available.”[7] 6. However, it was recognised that the recruitment of local officers, particularly to the professional and senior technical grades, was not proceeding rapidly. That was not surprising in view of the limited opportunities for tertiary education and the obtaining of professional qualifications in Hong Kong. Accordingly, a series of measures were announced which were designed to increase the intake of local officers. These measures included (a) the modification, if possible, of the qualifications required to accord with those obtainable locally, (b) the institution of courses designed to provide local candidates with such qualifications as were required, and (c) the selection of suitable local candidates for overseas training. If, despite these measures, it was necessary to appoint an officer from overseas, he should be appointed on agreement terms to bridge the gap for the time being: whereas recruitment on pensionable terms had been the norm in the past, recruitment on pensionable (and the transfer of a serving officer to pensionable terms) would normally only be resorted to where there was no prospect of a local candidate becoming available within the foreseeable future.[8] With the exception of appointments to the Police Inspectorate and the Administrative Service (where the policy was to recruit regularly a proportion of officers from overseas), this remained the Government’s recruitment policy throughout the 1960s and 1970s. 7. The promotion of serving officers. While suitable and qualified local candidates were given preference at the recruitment stage, it was notthe Government’s policy to give preference to local officers for advancement in the Civil Service. Local and overseas officers were considered equally for promotion irrespective of the terms on which they reserved. 8. The retention of serving officers. An officer from overseas who was recruited on agreement terms could only have his agreement renewed if there was not a suitable local officer available to take over from him in his present post. However, consideration would be given to the renewal of the officer’s agreement if he would still be needed to meet expansion in his present rank or to fill an existing or future vacancy in a higher rank. Moreover, the Government recognised the need to maintain a sufficient level of expertise in the grade concerned as a whole, and that meant that a good and experienced officer (irrespective of his terms of appointment or whether he was a local or overseas officer) should not be replaced by an inexperienced one.[9] 9. The impact of the Joint Declaration. In December 1984, the British and Chinese Governments signed the Sino-British Joint Declaration on the Question of Hong Kong (“the Joint Declaration”). Amongst other things, it required the elimination of privileged treatment for foreign nationals.[10] That provision resulted in the decision to abandon the policy of recruiting a proportion of officers from overseas to the Police Inspectorate and the Administrative Service. It also resulted in a review of the terms of employment of officers from overseas. The upshot of that review was that all appointments of officers from overseas would be on agreement terms. Moreover, serving officers from overseas on agreement terms would be given a once-and-for-all option to apply for transfer to the permanent establishment. The deadline for the making of such an application was subsequently extended on a number of occasions. THE CIVIL SERVICE REGULATIONS 10. The conditions of service of officers in the Civil Service are governed by the Civil Service Regulations (“the CSRs”). The power to make the CSRs is vested in the Secretary for the Civil Service (“the SCS”).[11] In order to see how the Government’s policies relating to the recruitment, promotion and retention of civil servants have been implemented, it is necessary to identify the relevant CSRs. 11. The appointment of new recruits. The status of a new recruit must be established before he is offered appointment.[12] CSR 115(1) provides that he will be offered overseas conditions of service only if he
All other recruits are offered local conditions of service. A recruit who is appointed on overseas conditions of service is known as an “overseas” officer[13], and all other recruits are known as “local” officers.[14] The fact that the status of a new recruit must be established before he is offered appointment has meant that the transfer to local conditions of service, and vice versa, has not been allowed. However, a person from overseas will not be offered appointment at all unless the conditions of CSR 100(13) are satisfied. CSR 100(13) provides :
12. Pensionable and agreement terms. On their recruitment to the Civil Service, officers are appointed on either pensionable or agreement terms. Pensionable terms are “terms which attract pension benefits under the Hong Kong pension legislation”.[15] The officer is then spoken of as being on the permanent establishment of the Civil Service, and contrasts with an appointment on agreement terms, which is described as a “short-term appointment”, and is “usually for 2½ years’ or 3 years’ service”.[16] 13. Appointment on, or transfer to, pensionable terms. Since 28th March 1985, overseas officers have not been allowed to be appointed to the permanent establishment: they have only been able to join the Civil Service on agreement terms.[17] Serving overseas officers on agreement terms fared better. Those who had been appointed before 28th March 1985 continued for a while to be able to transfer from agreement terms to the permanent establishment[18], but that was subject to the proviso that it had to be established “in accordance with the localisation policy that a suitable local candidate [was] not likely to be available within the next five years or so.”[19] Eventually, even this limited option became unavailable to them: from 30th June 1992, even those overseas officers on agreement terms who had been appointed before 28th March 1985 were not permitted under any circumstances to transfer to the permanent establishment.[20] On the other hand, local officers are eligible for appointment to the permanent establishment when they are recruited, and local officers on agreement terms may apply “for transfer to the permanent establishment at any time during their agreement.”[21] 14. Renewal of agreements. The renewal of the agreement of an officer on agreement terms is governed by CSR 281(1), which provides :
CSR 281(1)(d) adds an important additional limitation to the renewal of the agreement of an overseas officer: the renewal is also subject to “the lack of a qualified and suitable local replacement.” 15. A summary of the regulations. It can be seen, therefore, that the localisation of the Civil Service has been implemented through the CSRs by four significant regulations:
16. Fringe benefits. On the other hand, the CSRs still provide for overseas officers to receive fringe benefits which were originally intended to reflect their expatriate status and to enable them to retain their links with their home countries. These include better housing benefits, baggage allowances, additional leave and assisted passages. There has been some equalisation of terms at the more senior levels of the Civil Service, but disparities continue to exist in the more junior grades. These differences have long been a source of contention between overseas and local officers. 17. Promotion. However, when it comes to promotion, overseas and local officers compete on equal terms :
THE ENACTMENT OF THE BILL OF RIGHTS 18. The localisation policy implemented through the CSRs has, not surprisingly, been a matter of some concern to overseas officers. They have had no quarrel with the policy relating to the recruitment of officers from overseas as implemented through CSR 100(13) and CSR 112(4). Their concern has related to their continuing job security which was threatened by (a) the rule embodied in CSR 281(1)(d) permitting the renewal of an overseas officer’s agreement only if there is no qualified and local replacement, and (b) the inability of overseas officers to avoid the effect of CSR 281(1)(d) by transferring to the permanent establishment. However, whatever overseas officers may have thought about the implementation of the Government’s localisation policy through the CSRs, they had, prior to 1991, no legal recourse to challenge it. That was because (a) the SCS has the power to amend the CSRs unilaterally[23], and (b) civil servants have no legitimate expectation of being consulted over proposed changes to their conditions of service: the constitution of the relevant consultative body, the Senior Civil Service Council (“the SCSC”), provides that changes in conditions of service may be made without consultation if the Government is satisfied that the public interest so requires.[24] 19. However, on 8th June 1991, the Hong Kong Bill of Rights (“the BOR”) came into force. Art. 21 of the BOR provides, so far as is material, as follows :
“[T]he distinctions mentioned article 1(1)” is a reference to the fact that the rights protected by the BOR are to “be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” To the extent, therefore, that it was arguable that the Government’s localisation policy infringed Art. 21(c) of the BOR, overseas officers who were permanent residents of Hong Kong became entitled to challenge the legality of the CSRs through which the policy was implemented. Indeed, credible threats of legal action were being made in March 1993 by the Association of Expatriate Civil Servants of Hong Kong (“the AECS”), the overseas officers’ trade union.[25] THE DECISION CHALLENGED 20. By 1993, therefore, the Government recognised that the continued existence of different conditions of service for overseas and local officers was unnecessarily divisive: some local officers resented the fringe benefits which overseas officers enjoyed, and a number of overseas officers resented the greater job security which local officers enjoyed. In addition, it was necessary to prepare the Civil Service for the transfer of sovereignty in 1997. Thus, to ensure a smooth and orderly transition of power, it was thought to be desirable for the conditions of service of civil servants in due course to be compatible, and converge, with the Basic Law of the Hong Kong Special Administrative Region (“the SAR”) of the People’s Republic of China (“the PRC”), which had been adopted by the National People’s Congress in April 1990. 21. The long-term solution. The long term solution which the Government decided to adopt to these problems was the introduction of a common set of terms and conditions of service for all civil servants, thereby eliminating the distinction between overseas and local conditions of service. A consultation document containing the Government’s proposals was published in October 1993.[26] Views on the proposals were received from members of staff, the Civil Service advisory bodies and the Legislative Council Panel on Public Service (“the LegCo Panel”). After studying those views, the Government re-affirmed the thrust of its proposals, but modified some of those relating to specific conditions of service. The modified proposals were published in June 1994.[27] I shall refer to these proposals as “the uniform terms scheme”. Two of the “decisions” challenged in these proceedings relate to two features of the uniform terms scheme. The finalised proposals were passed to the Chinese side of the Sino-British Joint Liaison Group (“the JLG”) for discussion in November 1994.[28] 22. The interim measures. In the meantime, however, the Government had to find a solution to the problem posed by the AECS’s credible threats of legal action over the alleged incompatibility between the Government’s localisation policy as implemented through the CSRs and Art. 21(c) of the BOR. The AECS was arguing that if the agreement of an overseas officer on agreement terms, who was a permanent resident of Hong Kong (and therefore covered by Art. 21(c)), was not renewed because of the availability of a qualified and suitable local replacement, his right of access to the Civil Service in Hong Kong on general terms of equality would be infringed. The AECS was suggesting that overseas officers on agreement terms should be allowed to transfer to local terms: in that event, they would not be liable to be replaced on “localisation” grounds in accordance with CSR 281(1)(d), because they would themselves be treated as if they were local officers. 23. For its part, the Government had received independent legal advice which “strongly suggested” that the localisation policy (to the extent that it applied to permanent residents of Hong Kong) was not compatible with the BOR.[29] Indeed, at a meeting of the SCSC in August 1993, the Government had said that the advice which it had received was that a legal challenge “was almost certain to succeed”.[30] It was against that background that the Governor-in-council decided to lift the prohibition on overseas officers transferring to local conditions of service. In the future, overseas officers on agreement terms who were permanent residents of Hong Kong would be allowed to transfer to local conditions of service. This decision was announced on 30th July 1993[31], and I shall refer to the scheme to which this decision related as “the original transfer scheme”. The decision was not really made to reward those overseas officers who had committed themselves to Hong Kong by working in Hong Kong and serving the community, as the memorandum which announced the decision suggests. It was made in an attempt to remain within the law. 24. Reactions to the original transfer scheme. The original transfer scheme was welcomed by the AECS. Although its response was a cautious one[32], I suspect that within the AECS itself the scheme was being privately hailed as a historic victory for its members. Although its members might have to give up some or all of the fringe benefits which overseas officers enjoyed, those of its members who qualified as permanent residents of Hong Kong would in future be spared the worry of their agreements not being renewed simply because of the availability of a qualified and suitable local replacement. 25. However, two ominous developments began to give the AECS cause for concern. First, the original transfer scheme met with a hostile reception from associations representing local officers.[33] That was not surprising. Many local officers had expected to inherit the posts held by overseas officers on agreement terms when the latter’s agreements were not renewed because qualified and suitable local officers were available to replace them. Local officers had seen the localisation policy as a form of affirmative action, and they regarded the Government’s change of policy as a severe setback to their career prospects. Secondly, following the announcement of the Government’s change of policy, the SCS published details of the terms on which transfer to local conditions of service would be permitted.[34] The AECS became concerned that fewer overseas officers would be permitted to transfer than it had expected, and that the benefits to be derived from transfer might be illusory. A number of the decisions challenged in these proceedings relate to some of the features of the original transfer scheme. 26. The legislative freeze on the original transfer scheme. Among those who opposed the original transfer scheme were members of the LegCo Panel. They decided to promote a Private Member’s Bill to freeze the proposals. On 29th October 1993, a Bill proposing the freezing of the proposals was published, but despite an impassioned plea by the acting SCS when the Bill was debated on its resumed second reading[35], the Public Officers (Variations of Conditions of Service) (Temporary Provisions) Ordinance (No. 95 of 1993) (“the Ordinance”) was enacted on 17th December 1993. The Government had little option but to return to the drawing-board. 27. Its task was an unenviable one. It had to steer a course between (a) the retention of a localisation policy which the Government had always deemed to be necessary for the advancement of the career prospects of local officers, and on which the maintenance of good industrial relations with local officers depended, and (b) the need to remain within the law and to avoid perpetuating what was said to be unfavourable treatment for overseas officers which the BOR was alleged to outlaw. It is no exaggeration to say that the Government was caught between the devil and the deep blue sea. Something akin to the judgment of Solomon was called for. 28. The modified transfer scheme. After many months of discussions, the Government presented its revised proposals to the LegCo Panel.[36] The only evidence before me of the reaction of the LegCo Panel to these revised proposals is a statement in an affidavit that the LegCo Panel “indicated support for the new package”[37] , though it is a fact that the Legislative Council allowed the Ordinance to lapse on 6th July 1994, paving the way for the Government to implement its revised scheme. The details were announced on 28th July 1994[38], and I shall refer to this scheme as “the modified transfer scheme”. 29. Under the modified transfer scheme, an overseas officer on agreement terms was no longer permitted to apply for transfer to local conditions of service. Instead, he was permitted to apply for transfer to terms modelled on local conditions of service. Moreover, if there was a qualified and suitable local officer available to replace him, and if a local officer was recommended for promotion, the overseas officer would be offered appointment on terms modelled on local conditions of service at one rank below his existing rank, though he would retain his existing salary. The AECS had reluctantly been prepared to go along with this scheme (even though it could result in many of its members being demoted): its members at least had job security (in the sense they could not be replaced by local officers on localisation grounds), even if demotion would result in less job satisfaction. For its part, the Senior Non-Expatriate Officers Association (“the SNEOA”), the local officers’ trade union, had regarded it as “a pragmatic initial step in the right direction”. However, as a condition of accepting the proposal, the AECS insisted that the SNEOA accepted the scheme as well. As it was, there were features of the scheme which the SNEOA was still opposed to.[39] Accordingly, when the scheme was announced, the AECS announced its opposition to it, and a number of the decisions challenged in these proceedings relate to various features of the scheme – not only those features announced on 28th July 1994, but also to one of the features of the scheme announced on 14th October 1994.[40] 30. The opening-up scheme. When the Government announced the modified transfer scheme, it added that it was actively studying the feasibility of a scheme under which the posts of officers on agreement terms (whether overseas or local officers) in promotion ranks, i.e., all ranks other than basic ranks, would be opened up for competition on the expiry of their agreements. The Government’s motives for considering such a scheme have been questioned in these proceedings, but under the scheme the incumbent officer and officers one rank below would compete for the post, and the most meritorious officer would be appointed.[41] Outline proposals as to how the scheme would work were made known in September 1994[42], and the decision to introduce the scheme, together with the details of its implementation, were published on 19th December 1994.[43] A number of the features of the opening-up scheme are challenged in these proceedings. 31. The principal Official posts. The Basic Law identifies a number of senior posts which can only be held by Chinese citizens who are permanent residents of the SAR with no right of abode in any foreign country.[44] The Government believes that, in order to secure a transfer of power as smooth and seamless as possible, these posts should be filled, well before 1997, by officers who are, at least potentially, able to continue in these posts after 30th June 1997. Thus, it was decided that steps should be taken in the Administrative Service and in the Attorney-General’s Chambers to ensure that there was a sufficient pool of officers who were potentially eligible for these posts. Accordingly, (a) a decision to limit the number of overseas officers who would be promoted to certain senior posts in the Administrative Service was announced in June 1994[45], and (b) the Attorney-General announced the introduction of a Succession Posts Scheme accelerating the promotion of local officers in the Attorney-General’s Chambers to the senior directorate.[46] These two decisions are also challenged in these proceedings. DELAY 32. I have summarised the broad sweep of the decisions which are challenged in these proceedings because of the allegations of delay which have been levelled against the Applicants. These proceedings were commenced on 27th October 1994. That was when the Applicants (the AECS and four of its members) filed their Notice of Application seeking leave to apply for judicial review of the various decisions which had by then been made. The Notice was subsequently amended on 17th January 1995, amongst other things, to seek leave to apply for judicial review of subsequent decisions, viz. the decisions relating to the opening-up scheme which were announced in December 1994. The Respondents – namely, the Secretary for the Civil Service (in whose name all but one of the decisions challenged were made) and the Attorney-General (in whose name the decision relating to the Succession Posts Scheme was made) – contend that the challenge to some of the decisions complained of should have been launched much earlier. 33. Section 21K(6) of the Supreme Court Ordinance (Cap. 4) provides :
Section 21K(6) reproduces section 31(6) of the Supreme Court Act 1981. In Casewell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738, the House of Lords gave the words “undue delay in making an application for judicial review” in section 31(b) a restrictive meaning. It was held that the words referred to a failure to comply with the requirements of Ord. 53 r. 4(1) of the Rules of the Supreme Court in the U.K. That provides :
Ord. 53 r. 4(1) of the Rules of the Supreme Court in Hong Kong is in identical terms. The challenge to the decisions relating to the uniform terms scheme, the original transfer scheme and the limited promotion scheme in the Administrative Service was made more than three months after the dates when grounds for the application first arose. In relation to those decisions, therefore, there was “undue delay” on the part of the Applicants in applying for judicial review of them, unless “there is good reason for extending the period within which the application [should have been] made.”. 34. The fact remains, however, that I gave the Applicants leave to challenge those decisions. In those circumstances, Mr Philip Dykes for the Applicants argues that section 21K(6) limits the extent to which I can now give effect to any delay on the part of the Applicants. It is only if the delay has caused hardship, prejudice or detriment to good administration, he says, that I can give effect to that delay, and then only by refusing to grant the Applicants any relief relating to these decisions. 35. The argument may well be correct in the usual run of applications for judicial review, but in my view it wholly ignores the unusual, if not unique, features of the present application. It is true that the leave was granted following an inter partes hearing. However, the number of decisions being challenged, the relationship between each of them and the volume of the material before me made it quite impossible for me to reach an informed and concluded view at the leave stage as to whether there was “good reason for extending the period” within which the application for leave to apply for judicial review should have been made. Indeed, the Respondents rightly recognized at the leave stage that the determination of that question could only properly be made at the substantive hearing. It was for that reason that, with the exception of some earlier decisions relating to schemes operated within the Attorney-General’s Chambers, I did not address that question at all at the leave stage. It is only now that I have a clear understanding of (a) the nature of each of the decisions being challenged, (b) the grounds on which each of them are being challenged, (c) the background against which each of the decisions challenged were made, and (d) the relationship of each of the decisions challenged to each other, that I can make an informed assessment as to whether a sufficient explanation for the delay has been made so as to justify extending the Applicant’s time for challenging all or any of the decisions complained of. 36. In normal circumstances, it would be necessary for me to consider the question of delay separately in relation to each of the decisions challenged. However, the various decisions challenged were all made in the context of a continuing process by the Government to revise its employment policies. It was the ultimate product of that process which the Applicants finally regarded as unacceptable. I have no doubt that it was reasonable for the Applicants to delay their challenge to individual components of the Government’s revised employment policies until they could see the final form which the implementation of those policies was to take. I agree with them that it would have been premature for them to lodge a challenge to particular features of the various schemes in their embryonic form during their gestation when, for all the Applicants knew, the measures in their final form might have been acceptable to them. It must not be overlooked in this context that the AECS was still being consulted by the Government over the revision of its employment policies, and that the Government was forced by the Legislative Council to revise its original proposals. In these circumstances, I am satisfied that a sufficient explanation for the delay has been made out by the Applicants. STANDING 37. Section 21K(3) of the Supreme Court Ordinance provides :
This provision has been incorporated into Ord. 53 r. 3(7) of the Rules of the Supreme Court. Identical provisions in the Supreme Court Act and the Rules of the Supreme Court in the U.K. were considered by the House of Lords in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. [1982] AC 617. One of the effects of the decision of the House of Lords in that case has been summarised, in my view correctly, as follows:
Accordingly, the leave I granted to the Applicants to challenge the various decisions complained of does not prevent me from revisiting the issue of standing in the light of all the evidence which I now have. 38. THE AECS. A particular issue has arisen in relation to the standing of the AECS. The AECS undoubtedly has the standing to challenge decisions which affect its members. The questions is what has to be established to show that its members are affected by a particular decision. On that issue, I expressed a provisional view in the judgments which I delivered on 18th and 23rd January 1995. What I said was that the following proposition was sufficiently arguable :
The Respondents do not accept that proposition: all their detailed arguments on the standing of the AECS have been predicated on the assumption that it is necessary for the AECS to identify at least one of its members who is affected by a particular decision and wishes the AECS to challenge it on his behalf. 39. My provisional view on this issue has become a concluded one, though I would now substitute the word “possible” for “likely”, and add one additional requirement, viz. that it has to be possible that at least one of its members wishes the AECS to challenge the relevant decision on his behalf. All the decisions which I gave the AECS leave to challenge are in terms which contemplate their blanket application to a class of persons, namely overseas officers, who are entitled to be members of the AECS. The AECS is a representative body, and its challenge to decisions which apply to the class of persons it represents has all the hallmarks of a class action. In these circumstances, it is for the Respondents to demonstrate that the challenges to their decisions are academic by showing that, despite the terms of the particular decision and the breadth of its application, no member of the AECS could be affected by it. It is nothing to the point that, in relation to particular decisions, the AECS has not identified one of its members actually affected by those decisions. The fact that the AECS has not done so goes only to whether, as a matter of fact on the available evidence, there is one of its members who could have been affected. That is a question of fact which I will determine when I deal with each of the decisions separately. 40. The four individual Applicants. In order to determine which of the decisions complained of the four individual Applicants have the standing to challenge, it is necessary to identify their individual circumstances : 41. (i) Mr Ferdinand Tromp joined the Hong Kong Government as an overseas officer on agreement terms in October 1981. In September 1993, he applied, under the original transfer scheme, for transfer to local conditions of service. On 5th September 1994, following the introduction of the modified transfer scheme, he was offered a new agreement, for the period 28th September 1994 to 1st July 1996, on terms modelled on local conditions of service, Mr Tromp accepted that offer without prejudice to his right to challenge its legality. In January 1995, Mr Tromp was informed that he would continue to serve at his current rank for the balance of his agreement since there was no qualified and suitable local officer available to replace him. However, Mr Tromp has recently been told that, as a result of a selection exercise under the opening-up scheme, his current agreement will not be renewed on its expiry. Accordingly, if that decision is ratified, Mr Tromp will be leaving the Civil Service on 1st July 1996. 42. (ii) Mr Geoffrey Bach joined the Hong Kong Government as an overseas officer on agreement terms in July 1979. In September 1993, he applied, under the original transfer scheme, for transfer to local conditions of service. On 4th August 1994, following the introduction of the modified transfer scheme, he was offered a new agreement, for the period 9th October 1994 to 14th March 1997, on terms modelled on local conditions of service. Mr Bach refused his offer, challenging its legality, and he left the Civil Service on 12th December 1994 when his current agreement, as extended, expired. 43. (iii) Mr Patrick Wilson joined the Hong Kong Government as an overseas officer on agreement terms in January 1992. In August 1993, he applied, under the original transfer scheme, for transfer to local conditions of service. In due course, following the introduction of the modified transfer scheme, he was offered a new agreement on terms modelled on local conditions of service. He accepted that offer without prejudice to his right to challenge its legality. However, there is a dispute as to the precise nature of the offer which he received, and in the course of hearing I ruled that that dispute (which raises issues of fact and construction) should be resolved at a later hearing. The dispute is whether the new agreement (a) runs from 7th October 1994 to 28th December 1996 or from the 27th October 1994 to 17th January 1997, and (b) prohibits him from applying to join the permanent establishment. 44. (iv) Mr. Robin Toes joined the Hong Kong Government as an overseas officer on agreement terms in May 1975. In September 1993, he applied, under the original transfer scheme, for transfer to local conditions of service. On 4th August 1994, following the introduction of the modified transfer scheme, he was offered a new agreement, for the period 9th September 1994 to 5th February 1997, on terms modelled on local conditions of service. The offer informed Mr Toes that he would continue to serve at his current rank pending determination as to whether there was a qualified and suitable local officer available to replace him. Mr Toes accepted this offer. In the event, Mr Toes was informed on 20th August 1994 that with effect from the commencement date of his new agreement, he would serve at the next lower rank, but that he would retain his existing salary. There is no evidence before me as to the reason for that, but I assume that it was determined that there was a qualified and suitable local officer available to replace him, and that a local officer was recommended for promotion. THE PROPER CONSTRUCTION OF ART. 21(c) OF THE BOR 45. In applying Art. 21(c) of the BOR to the particular decisions challenged, I have borne in mind the following considerations : 46. (i) It is the right of access to the Civil Service which Art. 21(c) protects. It is common ground that this does not relate only to initial entry to the Civil Service. It includes access to the terms and conditions of service enjoyed by other officers. The right of access to the Civil Service is therefore restricted if some officers are employed (a) on agreement terms and do not have access to the permanent establish, or (b) on overseas conditions of service and do not have access to local conditions of service. What is in dispute is whether the right of access to the Civil Service includes access to the opportunities for promotion enjoyed by other officers. I have no doubt that it does. If it did not, the right protected by Art. 21(c) would be little more than a dead letter. What is the value of guaranteed access to employment in the Civil Service if normal career progression through the ranks is restricted? It is no answer to say that the Basic Law denies equality of access to promotion to the Principal Official posts: the mere fact that there is a tension between the Basic Law and Art. 21(c) of the BOR in that respect is no reason at all for construing the BOR so as to be compatible with the Basic Law. 47. (ii) The right of access to the Civil Service which Art. 21(c) of the BOR protects is on general terms of equality. Equality in absolute terms is not required. That means two things. First, identical treatment for overseas and local officers is not required. Secondly, equality of treatment for all overseas and local officers is not required. Thus, if overseas officers are treated equally with all but a few local officers, the fact that they have not been treated equally with a few local officers does not necessarily mean that their right of access to the Civil Service on general terms of equality has been restricted. 48. (iii) A restriction on the right of access to the Civil Service amounts to an infringement of Art. 21(c) if that restriction is attributable to one of the distinctions prohibited by Art. 1(1) is otherwise unreasonable. I use the word “otherwise” advisedly. That, I think follows from the language of Art. 21 itself that the rights which it protects are to be enjoyed without any of the prohibited distinctions and without unreasonable restrictions. Examples of restrictions on the right of access to the Civil Service which would be reasonable are restrictions on the grounds of age or literacy. It is for the Government to determine what restrictions are reasonably necessary, and the Court’s powers of intervention are limited. That is because, to adopt a phrase used by European human rights lawyers, the Government has “a margin of appreciation” in the determination of what is reasonable. Provided that the reasonableness of a restriction is within the range of reasonable views which the Government can form, the Courts cannot substitute their own view for that of the Government. 49. (iv) A departure from the right protected by Art. 21(c) does not amount to an infringement of Art. 21(c) if the departure can be justified. The decisions of the Court of appeal in R. v. Sin Yau Ming [1992] 1 HKCLR 127 [1993] AC 95 establish that it is for the Government to justify any departure from the rights protected by the BOR, and the grounds of that justification have to be cogent and persuasive. What has to be shown is that (a) the exercise of the rights protected by the BOR would have been irreconcilable with the achievement of an important objective on the part of the Government, and (b) that objective could not have been achieved by means which did not involve a departure from constitutionally entrenched rights. The interests of the individual have to be balanced against the interests of society generally, with a bias towards the interests of the individual. However, in attempting to strike the right balance between the individual and society as a whole, rigid and inflexible standards should not be imposed on the Government’s attempts to resolve the problems with which it is faced. 50. The leading case on preferential and discriminatory treatment in relation to those rights protected by the BOR which provide for equality of treatment is the judgment of the Court of Appeal in R. v. Man Wai Keung (No.2) [1992] 2 HKCLR 207. The principle was pithily expressed by Bokhary J. (as he then was) at p. 217 :
The only modification which needs to be made to that to reflect the terms of Art. 21(c) is that not even Art. 21(c) requires literal equality: general terms of equality are its yardstick. However the requirement that the difference in treatment should be proportionate to the need which justifies it is important. The difference in treatment must be as limited as possible; it must not merely be rational, but rationally connected to the need which justifies it; and it must be no more extensive than is necessary to achieve the objective which made some difference in treatment necessary. THE ORIGINAL TRANSFER SCHEME 51. A number of the decisions relating to the original transfer scheme are challenged. They all relate to the detailed arrangements on which transfer to local conditions of service would be permitted. Although the original transfer scheme was subsequently modified, all the decisions relating to the original transfer which are challenged continued to form part of the modified transfer scheme. I propose to deal with each of the decisions in turn, though it must at all times be remembered that under the modified transfer scheme, the transfer which was permitted was a transfer to terms modelled on local conditions of service. (1) THE DEFINITION OF PERMANENT RESIDENT 52. The definition adopted by the SCS. The relaxation of the prohibition on transfer to local conditions of service was limited to those overseas officers on agreement terms who were permanent residents of Hong Kong. That was because the right of access to the Civil Service on general terms of equality accorded by Art. 21(c) of the BOR is limited to “permanent residents”. The BOR, however, does not contain a definition of “permanent resident”, nor do the words “permanent resident” appear elsewhere in the BOR. In these circumstances, the SCS decided that only persons who are “Hong Kong permanent residents” within the meaning of Sch. 1 to the Immigration Ordinance (Cap. 115) should be treated as permanent residents within the meaning of the BOR.[48] Such persons are the only persons with the right of abode in Hong Kong.[49] Only the AECS has leave to challenge this decision. The basis of the challenge is that the definition adopted by the SCS is unduly restrictive, and prevents some overseas officers who are permanent residents on a wider definition of the words “permanent resident” from transferring to local conditions of service. 53. The persons included in that definition. Three classes of persons are identified in Sch. 1 as Hong Kong permanent residents :
If an overseas officer is to have a right of abode in Hong Kong under the Immigration Ordinance, he would (unless his personal circumstances are out of the ordinary) have to apply for naturalisation as a BDT citizen. Broadly speaking, he could only do that if he had lived in Hong Kong for five years, and intended to make Hong Kong his home.[50] 54. The reasoning of the SCS. In equating the words “permanent resident” in the BOR with those who have the right of abode in Hong Kong, the SCS was not asserting that that was necessarily correct. He accepted that who were permanent residents within the meaning of the BOR may ultimately have to be decided by the Court, but he adopted the right of abode in Hong Kong as a good working definition for a variety of pragmatic reasons.[51] They included (a) his belief that it would include or overlap completely with all those who were permanent residents under the BOR on any foreseeable definition, (b) the undesirability of adopting a definition which might pre-empt the discussions which it was then hoped would shortly be taking place in the JLG relating to the alignment of the definition of “Hong Kong permanent resident” in the Immigration Ordinance with the definition of “permanent resident” in the Basic Law, and (c) the fact that determining whether a person had the right of abode in Hong Kong did not involve, for the most part, the making of any valued judgments about a person’s status. Some of these reasons have been criticised b Mr Dykes, but it is unnecessary for me to resolve that debate. That is because I am not concerned with the reasons why the SCS adopted the test which he did: I am only concerned with whether the test which he adopted was the correct one in law. 55. The ICCPR. Section 2(3) of the Hong Kong Bill of Rights Ordinance (Cap. 383)(“the BORO”) provides :
Art. 21 of the BOR reproduced Art. 25 of the ICCPR. However, Art. 25 refers to “citizen” rather than “permanent resident”. The reason why the word “citizen” was not reproduced in Art. 21 can only have been because Hong Kong citizenship is not a concept which the law of Hong Kong recognises. If the word “citizen” had been retained, and interpreted as a citizen of the existing sovereign power,
56. The inferences to be drawn from the adoption of the words “permanent resident”. In my judgment, the selection of the words “permanent resident” in Art. 21 to replace “citizen” in Art. 25 is very telling. For two reasons, it is a very compelling indication that the rights protected by Art. 21 were intended to be granted to those who have the right of abode in Hong Kong : 57. (i) The words “permanent resident” do not appear in any Ordinance apart from the BORO. The closest which any other Ordinance gets to using the words “permanent resident” is the phrase “Hong Kong permanent resident”. That phrase appears in the Immigration Ordinance, of course, but the only other Ordinance in which it is used assigns the same meaning to it as that given in the Immigration Ordinance.[52] Since the words “permanent resident” in the BOR can only refer to a permanent resident of Hong Kong, there should be no material difference between “permanent resident” and “Hong Kong permanent resident” (although I accept that the position would have been even clearer if the phrase “Hong Kong permanent resident” had been used in Art. 21). Since the phrase “Hong Kong permanent resident” denotes in both the Ordinances where the phrase occurs a person with a right of abode in Hong Kong, the phrase “permanent resident” in the BORO should be construed as also denoting a person with a right of abode in Hong Kong. 58. (ii) Arts. 8(4) and 9 of the BOR mirror Arts. 12(4) and 13 of the ICCPR. Art. 8(4) of the BOR provides:
That is to be compared with Art. 12(4) of the ICCPR which provides :
Again, Art. 9 of the BOR provides :
That is to be compared with Art. 13 of the ICCPR which provides :
A person’s own country for the purpose of Art. 12(4) can only be the country of which he is a citizen as defined by that country’s nationality laws. Similarly, an alien in a particular country for the purpose of Art. 13 can only be a person who is not a citizen of that country as defined by that country’s nationality laws. Moreover, the category of persons envisaged by Art. 25 of the ICCPR (“citizens”) must also be those persons defined as citizens by the nationality laws of the country concerned. In other words, the persons to whom Arts. 12(4) and 13 of the ICCPR relate are the persons who are or are not citizens within the meaning of Art. 25 of the ICCPR. In the light of section 2(3) of the BORO, in particular the words “as applied to Hong Kong”, the words “permanent resident” in Art. 21 of the BOR should be construed as relating to those persons to whom Arts. 8(4) and 9 of the BOR relate. Since Arts. 8(4) and 9 relate to persons who have or do not have the “right of abode” in Hong Kong, the words “permanent resident” in Art. 21 should be construed as a person having a right of abode in Hong Kong. 59. There was a third argument which I was at one stage attracted to. The words “permanent resident” are used in a number of places in the Basic Law. In particular, Art. 24 identifies six classes of person who will be the permanent residents of the SAR. The point, though, is that Art. 24 then distinguishes between permanent residents and non-permanent residents by reference to the conferment of the right of abode in Hong Kong on permanent residents only. The BORO was enacted after the promulgation of the Basic Law. Since one of the declared aims of the Government has been to converge the laws of Hong Kong in due course with the Basic Law, the adoption of the words “permanent resident” in the BOR can only have been to grant the rights protected by Art. 21 to persons with a right of abode in Hong Kong. However, the fallacy in this beguiling argument, in my view, is that the conferment of the right of abode in Hong Kong on persons who are the permanent residents of the SAR is the consequence of those persons being the permanent residents of the SAR. Art. 24 does not seek to define who will be the permanent resident of the SAR by reference to persons having the right of abode in Hong Kong. Indeed, persons who now enjoy the right of abode in Hong Kong under the Immigration Ordinance are just one of the six classes of persons who will be the permanent residents of the SAR.[53] 60. The problems with equating “permanent resident” with the right of abode. There are two possible problems created if the words “permanent resident” are equated with the right of abode in Hong Kong under the Immigration Ordinance : 61. (i) There is a judicial debate as to whether the BOR is a constitutional document.[54] However, there is no doubt that the BOR is a yardstick against which pre-existing and subsequent legislation is tested. Could the legislature have intended the words “permanent resident” in Art. 21 of the BOR to be defined by reference to the statutory definition of the right of abode, which could be amended simply by resolution of the Legislative Council?[55] In my view, the answer is “Yes”. A number of the rights protected by the BOR are undoubtedly tied to the definition of the phrase “Hong Kong permanent resident” in the Immigration Ordinance, namely the rights protected in Arts. 8(4) and 9. 62. (ii) Persons who enjoy the right of abode in Hong Kong under the Immigration Ordinance are defined by criteria which include race and nationality. It is arguable that these criteria do not lie comfortably with the list of distinctions prohibited by Art. 1(1) of the BOR. I do not agree. The ICCPR itself imported nationality into the rights protected by Art. 25 by granting those rights to “citizens”. The concept of citizenship in the ICCPR can only be defined in each country which adopts the ICCPR by reference to its own criteria for determining who should be its citizens. These criteria may include racial or nationality criteria.[56] If it is permissible to include at least some of the distinctions prohibited by the ICCPR in order to determine who is a citizen of a country for the purpose of Art. 25 of the ICCPR, it is equally permissible to include them in the criteria for the corresponding exercise for determining who is a permanent resident of Hong Kong within the meaning of Art. 21 of the BOR. 63. The other possible definitions. Against that background, I turn to the other possible definitions of the words “permanent resident” in Art. 21 of the BOR. They are :
64. The rights to vote. The Applicants’ case is that the words “permanent resident” in Art. 21 of the BOR refers to persons having the right to vote in Hong Kong. They rely, in particular, on what the Chief Secretary told the Legislative Council when he moved the second reading of the Hong Kong Bills of Rights Bill :
I accept that this remark was intended to be an authoritative statement of legislative intention, but what the legislative intention actually was is not possible to discern. The right to vote and stand for election in Hong Kong is granted only to persons who are registered as electors.[58] However, it is not possible to regard the Chief Secretary’s words as applying to those “who now have the right to be registered as electors”, because that would not give effect to his words “and stand for election”, since not all persons who are entitled to be registered as electors are entitled to stand for election. The persons who are entitled to be registered as electors are, broadly speaking, persons aged 18 or over, who have either acquired the right of abode in Hong Kong under the Immigration Ordinance, or been ordinarily resident in Hong Kong for at least seven years.[59] The person who were entitled in 1990 to stand for election were, broadly speaking, persons aged 21 or over, who had been ordinarily resident in Hong Kong for at least ten years.[60] 65. The existence of two entirely different statutory regimes for determining who are entitled to be registered as electors and who are entitled to stand for election makes it difficult to identify the class of persons to whom the Chief Secretary was referring. The problem is that I have no way of knowing whether the word “and” in the Chief Secretary’s phrase “the right to vote and stand for election” is disjunctive or conjunctive. If it is disjunctive, i.e. if it means “or”, the person concerned qualifies as a permanent resident if he satisfies either of the two statutory regimes. If it is conjunctive, i.e. if it means “and”, the person concerned qualifies as a permanent resident only if he satisfies both of the statutory regimes. I do not know (and I cannot tell from the context) which of the two possibilities the Chief Secretary had in mind. I can only give effect to a statement of legislative intention if I can identify what that intention was. It may well be that it was intended to grant the rights protected by Art. 21 of the BOR to those with certain electoral rights, but since the particular electoral rights to which the Chief Secretary’s comments related are unclear, I do not see how I can attach any weight to his pronouncement. 66. Moreover, the reference by the Chief Secretary to the desirability of mirroring the provisions of the Basic Law should not be overlooked. The six classes of persons identified by Art. 24 of the Basic Law as the permanent residents of the SAR are defined by reference to Chinese citizenship, Chinese nationality, residence in Hong Kong and right of abode in Hong Kong. The right to vote in Hong Kong is not one of the criteria adopted. If the intention was to equate the persons to whom the rights under Art. 21 of the BOR should be granted with the persons who will be the permanent residents of the SAR under the Basic Law, that intention could not have been achieved by granting the rights under Art. 21 to persons with certain electoral rights in Hong Kong. It is true that Art. 26 of the Basic Law gives the permanent residents of the SAR the right to vote and stand for election. But that does not mean that those who have those rights will be the permanent residents of the SAR: it simply means that those rights will be granted to those persons who will be the permanent residents of the SAR. 67. Having determined that no weight can properly be attached to that part of the Chief Secretary’s statement in which he referred to “the right to vote and stand for election”, there is, in my view, no basis for preferring the test advanced by the Applicants to that adopted by the SCS. Indeed, the test adopted by the SCS is, for the reasons I have given, much the more preferable of the two. Apart from anything else, the words “permanent resident” in their natural and ordinary meaning relate to where a person lives, and a right of abode sits much more comfortably with that notion than the right to vote or stand for election. 68. The common law meaning. For a person to be permanent resident of Hong Kong within the ordinary common law meaning, the person must be a resident of Hong Kong, and that residence must have the quality of permanence about it, i.e. he must intend to continue to reside in Hong Kong until his death.[61] The adoption of this test would result in a desirable, though incidental, convergence with one of the six classes of persons identified in Art. 24 of the Basic Law who will be the permanent residents of the SAR, namely non-Chinese nationals who have ordinarily resided in Hong Kong for a continuous period of at least seven years and have taken Hong Kong as their place of residence.[62] 69. The adoption of the common law meaning of “permanent resident” was not advanced by either the Applicants or the Respondents as their primary contention. I do not see any formidable obstacles to its adoption, but the arguments against its adoption in preference to the right of abode test are nonetheless significant :
For these reasons, I reject the common law test as the correct test for defining who is a permanent resident for the purpose of the BOR. 70. The Basic Law definition. I have already referred to the six classes of persons identified in Art. 24 of the Basic Law as the permanent residents of the SAR. Both the Applicants and the Respondents disavowed adopting that definition as the meaning of the words “permanent resident” in Art. 21 of the BOR. I agree with them that it would not be appropriate to do so. Although it is desirable for the laws of Hong Kong to converge with the laws of the SAR when the transfer of sovereignty occurs, that does not mean that convergence should take place now. In particular, three of the six categories relate to Chinese citizens or persons of Chinese nationality.[63] That may be entirely appropriate when the PRC becomes the sovereign power, but not prior to the transfer of sovereignty. 71. Conclusion. For these reasons, I have come to the clear conclusion that the definition of the words “permanent resident” in Art. 21 of the BOR adopted by the SCS was correct. His decision to adopt that definition was not lawful, and the AECS’s challenge to that decision fails. 72. The irony in the Applicants’ case. I cannot leave the discussion on this topic without commenting on an irony at the heart of the Applicants’ case. On their construction of the words “permanent resident”, an overseas officer has to have been ordinarily resident in Hong Kong for at least seven years (and possibly ten). However, on the Respondents’ construction, he only has to have lived in Hong Kong for five years, because that is the qualifying period of residence for naturalisation as a BDT citizen. An overseas officer on agreement terms, therefore, can qualify for transfer to local conditions of service in a shorter time on the Respondents’ contention than on that of the Applicants. I recognise that there may be disadvantages in having to apply for BDT citizenship: the application costs $3,200.00, and the officer may have to give up the nationality of his country of origin. But none of the Applicants, nor the AECS on behalf of its members, sought to rely on the costs of the application. Moreover, there is no admissible evidence before me that the nationality laws of the country of origin of any overseas officer on agreement terms prohibit dual nationality, and therefore require the officer to give up his existing nationality before he applies for naturalisation as a BDT citizen. All there is are expressions of belief that that is so for Sri Lanka and India.[64] But even if dual nationality is prohibited for citizens of such countries, for all I know acquisition of BDT citizenship may not equate with citizenship of a foreign country as Hong Kong is a British Dependent Territory, which is not equivalent to a sovereign state. Without expert evidence from lawyers with expertise in the nationality laws of Sri Lanka and India, I cannot possibly make the leap of faith which the Applicants are asking me to make. 73. Is the issue academic? At first blush, the decision to equate the words “permanent resident” with the right of abode in Hong Kong cannot affect the outcome of these proceedings. That is because only six overseas officers on agreement terms of those who applied to transfer to local conditions of service between 1st August 1993 and 30th June 1995 had their applicants refused because they were not BDT citizens. I am assuming (I hope fairly) that BDT citizenships was their only route to acquiring the right of abode in Hong Kong. Five of those officers had not lived in Hong Kong for five years, and the one who had (a) did not apply to become a BDT citizen, and (b) had been told by his department that his application for transfer to local conditions of service would not be supported on other grounds.[65] None of them would therefore have been able to transfer to local conditions of service if any of the other three possible definitions of the words “permanent resident” had been adopted. 74. However, there may have been other overseas officers on agreement terms (a) who were members of the AECS, (b) whose only route to the acquisition of a right of abode in Hong Kong was the acquisition of BDT citizenship, (c) whose applications for transfer to local conditions of service would have been successful if they had acquired the right of abode in Hong Kong, (d) who had lived in Hong Kong for a sufficient length of time to be treated as permanent residents on any of the other definitions of “permanent resident”, but (e) who chose, for one reason or another, not to apply for BDT citizenship. Such officers would have been directly affected by the decision under challenge. In these circumstances, although the AECS has not identified such an officer, I cannot say that the AECS did not have the standing to challenge this decision. (2) NON-TRANSFERRING OFFICERS 75. Under the original transfer scheme, overseas officers on agreement terms who did not apply for transfer to local conditions of service would remain on overseas conditions of service. The limitations on the renewal of their agreements would continue. In the light of CSR 281(1)(d), their agreements would only be renewed if there was not a qualified and suitable local replacement for them.[66] On pages 11-12 of the judgment which I delivered on 18th January 1995, I explained why I thought that all the applicants had the standing to challenge this decision. 76. In the course of agreement, Mr Dykes limited that challenge only to those non-transferring officers who were permanent residents of Hong Kong within the meaning of Art. 21 of the BOR. That meant that the four individual Applicants no longer have the standing to challenge that decision. Although Mr Bach did not transfer, he was not a permanent resident of Hong Kong because he did not have a right of abode in Hong Kong. And if Mr Tromp, Mr Wilson and Mr Toes had not decided to transfer, they too would not have become permanent residents of Hong Kong because they would not have decided to acquire the right of abode in Hong Kong. However, it is possible that there was an overseas officer on agreement terms (a) who was a member of the AECS, (b) who had acquired (or could acquire) the right of abode in Hong Kong, and (c) who elected not to transfer to terms modelled on local conditions of service. In those circumstances, although the AECS has not identified such an officer, I cannot say that the AECS does not have the standing to challenge this decision. 77. At one time, I thought that the basis of the challenge was that the right of unrestricted access of such officers to continued employment in the Civil Service on general terms of equality was being infringed by the continued application of CSR 281(1)(d) to them because of the preferential treatment which CSR 281(1)(d) accorded to local officers. The Respondents thought that that was the basis of the challenge as well, because the oral and written submissions of Mr Adrian Huggins Q.C. for the Respondents, and the additional evidence filed by the Respondents in the course of the hearing[67], addressed that argument. 78. However, it became apparent in Mr Dykes’ reply that the challenge would only be maintained if the definition of “permanent resident” adopted by the SCS was incorrect. Mr Dykes expressedly confirmed that to me, and his written submissions in reply[68] were plainly prepared on that basis. In the light of my finding that the definition of “permanent resident” adopted by the SCS was correct, it follows the AECS’s challenge to this decision fails. (3) DEADLINES FOR APPLICATIONS 79. The decisions challenged. On 23rd August 1993, the SCS announced[69] that overseas officers on agreement terms whose agreements were due to expire on or before 31st December 1994 and who wished to apply for transfer to local conditions of service had to do so before 30th October 1993. Subsequently, on 21st September 1993, the SCS announced[70] various transitional arrangements relating to the deadlines within which officers whose agreements were due to expire soon had to comply. A deadline of 30th September 1993 was imposed for (a) officers whose applications for the renewal of their agreements were being processed, and (b) officers who had already been notified that their agreements would not be renewed by reason of the application of CSR 281(1)(d). 80. The basis of the challenge. The imposition of the dealines is said to be unlawful for two reasons. First, the shortness of the deadlines is said to be irrational in the Wednesbury sense (i.e. “so outrageous in its defiance of logic …that no sensible person who had applied his mind to the question to be decided could have arrived at it”[71]) because overseas officers on agreement terms needed much more time than the deadlines permitted to digest arrangements which have been described as “new and complicated”[72], especially as the option to apply for transfer was an option which was only available once.[73] Accordingly, if an officer missed the deadline, he remained liable to the non-renewal of his agreement under CSR 281(1)(d). Secondly, the fact of the deadlines is aid to be an infringement of Art. 21(c) of the BOR, because any deadline would have the effect of removing the option to transfer from those overseas officers who, prior to the relevant deadline, had not lived in Hong Kong long enough to be able to apply for naturalisation as a BDT citizen so as to acquire a right of abode in Hong Kong. 81. The standing of the four individual Applicants. The four individual Applicants were not given leave to challenge the 30th October 1993 deadline. However, they were all given leave to challenge the 30th September 1993 deadline. That was because the Respondents had not challenged the grant of leave to them to challenge that deadline. I think that this must have been a mistake, because all the individual Applicants applied for transfer within the deadline, and none of them have complained that they had insufficient time to make an informed decision. In my view, they do not have the standing to complain about this deadline. 82. The standing of the AECS. The AECS was given leave to challenge both the deadlines. A powerful argument has been mounted for saying that the AECS does not have the standing to challenge them. As a matter of fact, no officer who applied for transfer had his application refused on the basis that it was out of time.[74] However, it is possible that there was an overseas officer on agreement terms (a) who was a member of the AECS, (b) who wished to apply for a transfer, but (c) who failed to do so by the date on which the relevant deadline expired, and (d) who assumed that the deadline was immutable and that there was no point in submitting his application thereafter. Moreover, it is possible that, if there had been no deadline at all, there were officers (a) who were members of the AECS (b) who had not lived in Hong Kong long enough to be able to apply for naturalisation as a BDT citizen, but (c) who would have applied for such naturalisation when they became eligible to do so, and (d) who would then have applied for transfer. In those circumstances, although the AECS has not identified such an offer, I cannot say that the AECS does not have the standing to challenge the deadlines. 83. The legality of the deadlines. In my judgment, the complaints made against the deadlines are completely unfounded. Let it be assumed in favour of the AECS that the imposition of deadlines was in law capable of amounting to a restriction on the right of officers to transfer. However, a restriction on the right to transfer of officers who had not yet acquired a right of abode in Hong Kong could not have been an infringement of Art. 21(c) of the BOR, because those officers would not have acquired any rights under Art. 21(c) until they had acquired the right of abode in Hong Kong. 84. Nor could the length of the deadlines be said to be unreasonably short. I say that for four reasons: 85. (i) Heads of Department needed to know which overseas officers would be liable to localisation under CSR 281(1)(d) when their agreements expired and which would not be. Only then would they be able to make informed decisions on manpower and staff planning.[75] 86. (ii) Applications for transfer to local conditions of service had to be dealt with as soon as possible so that the officers themselves would know sooner rather than later whether they would be liable to localisation under CSR 281(1)(d) when their agreements expired.[76] 87. (iii) There was a need to allay the fears of local officers that the original transfer scheme would lead to a halt on the localisation policy. The sooner they could be told how many overseas officers on agreement terms had applied for transfer, the sooner their concerns would be reduced.[77] 88. (iv) There was nothing to prevent an overseas officer who had applied for transfer withdrawing his application if he wanted to. For these reasons, the deadlines were not unlawful, and the AECS’s challenge to the decision implementing them fails. (4) CARRYING FORWARD UNTAKEN LEAVE 89. The decisions challenged. On 13th September 1993, the SCS announced[78] that transferring officers would be required to take (a) any accrued casual leave before the end of their agreement on overseas terms, (b) any accrued vacation leave before the commencement of their agreement on local terms. All the Applicants with the exception of Mr Bach were given leave to challenge these decisions. They clearly have the standing to do so. 90. The basis of the challenge. These decisions are said to be an infringement of Art. 21(c) of the BOR because they impose unreasonable restrictions on the exercise of the right of overseas officers to transfer to local conditions of service, in that they require such officers to give up accrued contractual rights which they had earned by virtue of their previous service. These restrictions are said to be attributable to the national or social origins of overseas officers, because it was their national or social origins which, by virtue of CSR 115(1), caused them to be classified as overseas officers in the first place. That is the basis on which it is alleged, in relation to all those decisions which are said to infringe Art. 21(c) of the BOR, that the inequality of treatment between overseas and local officers is attributable to any of the distinctions prohibited by Art. 1(1). 91. The CSRs. However, the CSRs do not bear out the argument that transferring officers had to give up accrued rights as a pre-condition of transfer. The CSRs already provided that both casual and vacation leave which had not been taken before the end of the agreement on overseas terms would lapse.[79] It is true that undertaken casual leave could be carried forward to an officer’s next agreement if the officer had not been able to take all his casual leave due to operational needs.[80] Moreover, untaken vacation leave could be carried forward to an officer’s next agreement or to when he finally left the Civil Service if the officer had not been able to take all his vacation leave due to operation needs.[81] But those exceptions continued to apply to transferring officers.[82] There was, therefore, no question of transferring officers being required to give up accrued rights : they were merely being required to exercise their accrued rights in a way in which they were already required to exercise them. 92. The comparison with local officers : casual leave. The Applicants point out that in reaching his decision the SCS took account of the fact that transferring officers “would no longer be eligible for casual leave, as local officers do not earn casual leave in any event.”[83] That is true for local officers on Directorate Salary Scale D3 and below. Accordingly, the restrictions imposed on transferring officers on Directorate Salary Scale D3 and below did not prevent them from enjoying access to local conditions of service on general terms of equality with local officers. As for local officers on Directorate Salary Scale D4 and above, they do enjoy the equivalent of casual leave. It is known as “local flexible annual leave”.[84] However, this point does not get the Applicants anywhere. The restrictions imposed on transferring officers did not require them to give up rights equivalent to those which local officers on agreement terms on Directorate Salary Scale D4 and above enjoyed, because untaken local flexible annual leave for such officers also lapses at the end of their agreements, except where otherwise approved on operational grounds.[85] 93. The comparison with local officers : vacation leave. The term as to vacation leave which local officers on agreement terms on Directorate Salary Scale D4 and above enjoy do not differ in any material way from the terms as to vacation leave which overseas officers on agreement terms at similar grades enjoy.[86] On the other hand, unlike overseas officers on agreement terms on Directorate Salary Scale D3 and below, local officers on agreement terms at such grades are permitted to carry forward untaken vacation leave to their next agreement.[87] 94. However, I have already said that Art. 21(c) of the BOR requires the right of access to the Civil Service to be accorded only on general terms of equality. In my view, the disparity in treatment between transferring officers and local officers already on agreement terms on Directorate Salary Scale D3 and below in relation to the inability of the former to carry forward untaken vacation leave to the first agreement on local conditions of service is minimal – especially when one remembers that transferring officers are not being required to give up their accrued vacation leave, but merely to take it earlier than local officers would be obliged to. 95. That is the answer to another complaint made by the Applicants about untaken vacation leave. Overseas officers on agreement terms on Directorate Salary Scale D3 and below, unlike their local counterparts, are subject to the forfeiture rule, i.e. the rule that vacation leave is forfeited if it is taken locally in Hong Kong or Macau.[88] The effect of this is said to be that if a transferring officer is exceptionally permitted, for operational or compassionate grounds to carry forward his untaken vacation leave to his new agreement on local conditions of service, he will, unlike local officers on agreement terms, have to take that leave out of Hong Kong – and at his own expense because he will not be entitled to the passage allowance[89] to which he would have been entitled had he remained on overseas conditions. I do not construe the forfeiture rule as continuing to apply to transferring officers in these circumstances, but even if it does, it does not infringe the principle of general equality of treatment protected by Art. 21(c) of the BOR. 96. For these reasons, the decisions relating to casual and vacation leave were not unlawful, and the challenge to them fails. (5) OUTWARD PASSAGE BACK TO HONG KONG. 97. The decision challenged. On 13th September 1993, the SCS announced[90] that transferring officers would not be entitled to an outward passage back to Hong Kong to enable them to take up their duties under their new agreements on local conditions. All the Applicants were given leave to challenge this decision, though I do not now think that Mr Bach has the standing to challenge it. He did not transfer to local conditions of service, and I do not suppose for one moment that this decision was one of the reasons why he chose not to do so. The Respondents correctly accept that all the other Applicants have the standing to challenge this decision. 98. The basis of the challenge. CSR 1320(2) entitles an overseas officer on agreement terms “returning to duty” on the expiry of his leave to an outward passage back to Hong Kong. The decision challenged is therefore said to be an infringement of Art. 21(c) of the BOR because it imposed an unreasonable restriction on the exercise of such an officer to transfer to local conditions of service. He had to give up the contractual right to an outward passage back to Hong Kong to which CSR 1320(2) entitled him. That was because, until he returned to Hong Kong on the expiry of his leave to take up his duties under his new agreement, he remained an overseas officer entitled to the benefit of CSR 1320(2). 99. “Returning to Duty”. The Respondents argue that CSR 1320(2) does not apply to transferring officers, because they are not returning to duty, but starting new duties under a new agreement. I disagree. In my view, transferring officers are returning to duty, albeit to duty on different conditions of service. 100. Discrimination. Even so, I do not see how the decision challenged can be an infringement of Art. 21(c) of the BOR. Even if the decision is an unreasonable restriction on access to local conditions of service, it is not as if local officers on agreement terms are treated any differently. Local officers on agreement terms who are not on the Directorate Salary Scale do not have the right to an outward passage back to Hong Kong. Thus, the loss of that right for transferring officers who are not on the Directorate Salary Scale equalises their position with their local counterparts. No question, therefore, arises of them being denied a benefit which local counterparts enjoy. 101. It is true that local officers on agreement terms who are on the Directorate Salary Scale and who return to Hong Kong to resume their duties under renewed agreements after spending their leave overseas are entitled to a return passage, i.e. a passage which includes an outward passage back to Hong Kong.[91] However, the passage to which this regulation relates to is a passage allowed to the officers in order for them to take their leave during the currency of their agreements. It is not granted to enable them to take up their duties at the beginning of their renewed agreements. Incidentally, none of the four individual Applicants can compare themselves with such officers because none of them were on the Directorate Salary Scale. 102. For their reasons, the decision complained of was lawful, and the challenge to it fails. (6) SCHOOL PASSAGE AND OVERSEAS EDUCATION ALLOWANCE 103. The decision challenged. Overseas officers are eligible to claim school passage and overseas education allowances for their dependant children attending full-time education in the officers’ country of origin.[92] However, on 13th September 1993, the SCS announced[93] that transferring officers would only continue to receive those benefits for their dependant children attending full-time education in the UK. That was because that is all that local officers are able to claim.[94] 104. Standing. All the Applicants were given leave to challenge this decision, but I do not think that any of the four individual Applicants have the standing to challenge it. There is no evidence that any of them have any dependant children, or will have any dependant children in the foreseeable future, let alone any dependant children who are being, or who they wish to have, educated otherwise than in the U.K. 105. The basis of the challenge. The decision is challenged on two grounds : 106. (i) It is said to be an infringement of Art. 21(c) of the BOR because it did not give equality of treatment to all local officers (who include, for this purpose, overseas officers who transfer to local condition of service) : the decision conferred a greater benefit on those local officers whose national or social origins are in the U.K. (and who therefore wish to educate their children in the U.K.) than on those local officers whose origins are in other countries. I see no answer to this point. It is true that the right of local officers to have the Government contribute to the expense of educating their children in the U.K. is enjoyed by all of them, whatever their national or social origins. However, the decision indirectly discriminates against local officers whose national or social origins are not in the U.K., because proportionately fewer of them would derive any benefit from that right. I do not discern any overwhelming policy consideration which would justify this significant departure from the right of access to terms and conditions of service on general terms of quality. 107. (ii) The decision is said to be irrational because if it is thought appropriate to subside the education overseas of children of local officers, it should make no difference where that education takes place. If the historical justification for subsidising education in the U.K. alone has been to encourage local officers to strengthen the colonial ties between the U.K. and Hong Kong by exposing their children to life in the U.K., that can hardly be appropriate in the twilight of British sovereignty over Hong Kong. I see no answer to this point either. 108. The true target of the complaint. At first blush, the decision being challenged is not the true target of the complaint. The true target of the complaint is the relevant CSRs themselves. That is because, under the original transfer scheme, transferring officers were to be subject to the local conditions of service set out in the CSRs, and it is the local conditions of service in the CSRs which limit the benefits to education in the U.K. The CSRs would automatically have applied to transferring officers even if the SCS had not made his announcement of 13th September 1993. 109. On reflection, I do not think that that argument is correct. When the original transfer scheme was modified, transferring officers became subject to terms modelled on local conditions of service. There was, therefore, no automatic application to them of the local conditions of service in the CSRs. The terms on which they were to serve were bespoke terms, tailor-made to their circumstances. The true target of the complaint was, therefore, the decision challenged, because it was that decision which had the effect of applying the relevant CSRs to transferring officers. For these reasons, the decision complained of was unlawful, and the challenge to it succeeds. (7) TRANSFER TO THE PERMANENT ESTABLISHMENT 110. The decision challenged. It will be recalled that overseas officers who joined the Civil Service after 28th March 1985 have not been allowed to join the permanent establishment. They could only serve on agreement terms. Those overseas officers on agreement terms who were already in the Civil Service on 28th March 1985 were permitted in limited circumstances to transfer to the permanent establishment, but since 30th June 1992 they have not been permitted to do even then. When the decision was made to permit overseas officers on agreement terms to transfer to local conditions of service, the SCS announced on 30th July 1993 that such transfers would “initially” be on agreement terms.[95] There is no challenge to that decision. 111. However, on 13th September 1993, the SCS announced[96] that since the original transfer scheme was an interim arrangement only (pending the introduction of a uniform set of conditions of service for all officers), the CSR permitting local officers on agreement terms to apply for transfer to the permanent establishment would not apply to overseas officers on agreement terms who transfer to local conditions of service. That decision is challenged by the Applicants. At the leave hearing, the Respondents did not dispute that all the Applicants have the standing to challenge this decision. In my view, that was the correct stance to adopt. 112. When the modified transfer scheme was announced on 28th July 1994, the SCS stated that “as previously announced”[97] transferring officers would not be allowed to transfer to the permanent establishment for the duration of their agreements modelled on local conditions of service. That decision is also challenged by the Applicants. However, I have no doubt that the two decisions challenged are in fact the same decision. The latter is merely confirmation of the former. The situation is no different from any of the other features of the original transfer scheme which are challenged, namely those which survived the legislative freeze on their introduction and which feature in the modified transfer scheme. I therefore propose only to address the challenge to the former decision announced on 13th September 1993. 113. Even then, the Respondents argued that the decision announced on 13th September 1993 was no more than (i) confirmation of the long-standing prohibition on overseas officers on agreement terms transferring to the permanent establishment, or (ii) at the very least, confirmation of the decision announced on 30th July 1993 that transfer to local conditions of service would initially be on agreement terms. I disagree : 114. (i) The long-standing prohibition on overseas officers on agreement terms transferring to the permanent establishment related to the time when overseas officers could not transfer to local conditions of service. At that time, it was not contemplated that a fundamental change of policy would result in certain overseas officers subsequently being treated on broadly the same footing as local officers. A decision had to be made as to whether they should be permitted to transfer to the permanent establishment in the light of their new status as officers who enjoyed local conditions of service. 115. (ii) There is a significant difference between the decisions announced on 30th July 1993 and 13th September 1993. The decision announced on 30th July 1993 related to the terms to which overseas officers on agreement terms could transfer, i.e. local agreement terms. The decision announced on 30th September 1993 related to whether, once an overseas officer had transferred to local agreement terms, he could thereafter transfer from local agreement terms to local permanent and pensionable terms. 116. Irrationality. The decision announced on 13th September 1993 is said to be irrational because there is no rational justification for not according to transferring officers the same rights of transfer to the permanent establishment enjoyed by their local counterparts. I unhesitatingly reject this argument. The Government’s current proposal is that under the uniform set of conditions serving officers on agreement terms wishing to transfer to the permanent establishment will have to be “locals”, and will normally have to meet basic Chinese language proficiency requirements. However, those requirements would not apply to officers already on the permanent establishment. They would continue to serve on their existing terms of service.[98] Accordingly, the effect of permitting transferring officers now to transfer to the permanent establishment will, under the current proposals, enable them to bypass the proposed requirements for transfer to the permanent establishment and to continue on the permanent establishment even after the uniform set of conditions has been introduced. That could entitle them to remain on the permanent establishment even after 30th June 1997, because the Basic Law provides that all civil servants serving the Hong Kong Government before the establishment of the SAR “may all…retain their … conditions of service no less favourable than before.”[99] 117. In these circumstances, I entirely understand by the Government regarded it as undesirable to permit transferring officers to transfer to the permanent establishment for the time being, i.e. during their first agreement on local conditions of service. To permit transfer to the permanent establishment of former overseas officers would have amounted to a significant change of policy affecting the establishment of the Civil Service after the transfer of sovereignty. It was open to the SCS to conclude (a) that the Chinese government, as the future sovereign power, should be consulted before such a commitment is made, and (b) that transferring officers should not be allowed to bypass the proposed requirements in the uniform set of conditions for transfer to the permanent establishment, pending talks with the Chinese side on the JLG about who should be regarded as a “local” in the uniform set of conditions and a final decision as to what those requirements should be. 118. Discrimination. The decision announced on 13th September 1993 is also challenged on the basis that it is an infringement of Art. 21(c) of the BOR : it denied to overseas officers on agreement terms who transferred to local conditions of service the right to transfer to the permanent establishment, whereas local officers on agreement terms had the right to transfer to the permanent establishment. The access of transferring officers to the permanent establishment on general terms of equality with local officers on agreement terms was therefore restricted. That restriction was attributable to their national or social origins, because it was their national or social origins which, as a result of CSR 115(1), caused them to be classified as overseas officers in the first place. 119. I agree with the Applicants that the decision challenged constitutes a departure from Art. 21(c). The question is whether the Respondents have discharged the heavy burden on them to justify it. In my view, they have not. I understand entirely the objectives which the Government sought to achieve. Those objectives were to avoid undermining the proposal in the uniform set of conditions that the only officers on agreement terms who will be permitted to transfer to the permanent establishment will be “locals” who meet basic Chinese language proficiency requirements, and the prevent the permanent establishment from including a class of officers who the Chinese authorities ought to be consulted about first. Sensible and fair-minded people who are not civil servants would recognise the need to achieve those objectives. But those objectives could have been achieved without departing from Art. 21(c). Local officers on agreement terms could, for the time being, have been refused the right to transfer to the permanent establishment. I appreciate that that would have had the effect of temporarily denying them a right which they have always enjoyed, but that would not have infringed Art. 21(c) because, for the time being, there would have been parity of treatment between them and overseas officers on agreement terms who transferred to local conditions of service. 120. For these reasons the decision announced on 13th September 1993 relating to the prohibition on transferring officers transferring to the permanent establishment was unlawful, and the challenge to it succeeds. (8) PROFICIENCY IN CHINESE 121. The decision challenged. When the SCS announced the original transfer scheme on 30th July 1993, he stated that one of the criteria which would be taken into account in determining whether an overseas officer on agreement terms would be permitted to transfer to local conditions of service was “service need”.[100] However, in a memorandum issued on 21st September 1993, he explained that it was necessary to take into account the operational requirements of all the posts in the rank to which the officer belonged to see whether he was capable of effectively performing all the required duties in any of those posts which were or could reasonally be made available. In particular, if all officers in the same rank were required to communicate directly with people in Chinese, the officer’s ability to perform effectively and efficiently without an interpreter would be a relevant consideration.[101] The decision challenged is therefore the decision to take into account the ability of the officer seeking a transfer to communicate in Chinese if there are any posts in his rank which might become available and in which communication in Chinese is required. 122. Standing. I gave all the Applicants leave to challenge this decision. However, the leave I gave the four individual Applicants was conditional upon their filing evidence that they were unable to communicate directly with people in Chinese. Mr Bach did not file any additional evidence at all. Since he did not comply with that condition, the leave which I granted to him has lapsed. The other three individual Applicants all filed additional evidence. I have read that evidence. None of them stated they were unable to communicate directly with people in Chinese. Accordingly, they did not comply with the conditions which I imposed, and the leave which I granted them has also lapsed. I am not troubled by that at all. All three of them were in fact offered terms modelled on local conditions of service, and none of them were therefore ultimately affected by the gloss placed by the SCS on the phrase “service need”. 123. As for the standing of the AECS, seven overseas officers whose applications for transfer had been processed by 1st September 1995 have had their applications for transfer refused on the ground that their proficiency in Chinese was insufficient.[102] I do not know, of course, whether any of those officers were members of the AECS, or had a right of abode in Hong Kong, or could qualify for a right of abode in Hong Kong. However, since it is possible that one or more of these seven officers were members of the AECS and had (or could acquire) a right of abode in Hong Kong, I cannot say that the AECS does not have the standing to challenge this decision. 124. Irrationality. The decision challenged is said to be irrational because its application could result in the Civil Service losing the specialist skills of an overseas officer – even though there may be no other officers with those skills – simply because the overseas officer is not sufficiently proficient in Chinese to carry out the duties of some other posts in his rank. That is said to be particularly irrational if proficiency in Chinese is not necessary for the specialist tasks which the officer performs. However, Mr Jackson has deposed that in some ranks account was taken of “existing, operationally required provisions for specialisation”, contrasting such ranks with those ranks in which applicants for transfer “should be able to do a wide range of duties”.[103] I take this to mean that if an applicant for transfer occupies a post calling for specialist skills which other officers do not have, his lack of proficiency in Chinese, and his inability for that reason to carry out the duties of some of the other posts in his rank, would not be treated as a factor which could disqualify him for transfer under the rubric “service need”. On that basis, the sitting in the complaint has effectively been removed. The fact that the exception for specialist skills was not referred to in the SCS’s announcement of this decision does not matter : no criticism can legitimately be made of the decision in view of what is now known about the way it has been applied. 125. I should add that even if an exception for specialist skills had not been made, I would not have characterised the decision challenged as irrational. It was, I think, open to his colleagues from time to time in other posts in the same rank. Unless the officer is sufficiently proficient in Chinese to carry out the duties of those other posts in the same rank for which a proficiency in Chinese is required, he will not be able to deputise for his colleagues in those posts. The result would be that the task of standing in would fall on those other officers in the same rank who were sufficiently proficient in Chinese. In my view, the SCS was entitled to conclude that that would be unfair to such officers. 126. However, the SCS does not have to go that far to justify the stance taken in respect of the seven officers whose applications for transfer were refused on the ground that their proficiency in Chinese was insufficient. Each of them needed to be proficient in Chinese in order to carry out their own duties effectively without an interpreter.[104] 127. Mr Dykes made the point that the requirement to be proficient in Chinese in the assessment of “service need” should only have been imposed if no other option was open to the SCS. That was especially so when such a requirement (a) was being imposed for the first time on serving officers, and (b) had not been imposed in the past when “service need” was considered for the purpose of the application of CSR 281(1)(a). Mr Dykes reminded me that it was proposed to make resources available to provide intensive refresher courses in Cantonese for administrative officers.[105] If for them, why not for the few officers (seven in all so far) whose lack of proficiency in Chinese prevented their transfer to local conditions of service? I see the force in that point, but the allocation of resources is a matter of political judgment, and I cannot say that in not allocating resources to the provision of courses in Cantonese for officers who wish to transfer to local conditions of service the SCS has acted irrationally. 128. Finally, Mr Dykes reminded me that the Official Languages Ordinance (Cap. 5) declares both the English and Chinese languages to be the official languages of Hong Kong for the purpose of communication between civil servants and members of the public. Moreover, the Basic Law provides that English may be used as an official language by the executive authorities, legislature and judiciary of the SAR.[106] The argument is that if an officer is proficient in one of the official languages (and I assume that the majority of overseas officers on agreement terms are proficient in English), he should not be penalised for not being proficient in the other official language. That argument misses the point. Proficiency in English, though an official language, is no substitute for proficiency in Chinese if proficiency in Chinese is required to enable an officer to carry out his duties or to stand in for his colleagues. 129. Discrimination. The decision challenged is said to be an infringement of Art. 21(c) of the BOR on the basis that it restricts the access of overseas officers to transfer to local conditions of service. They have to be proved to be proficient in Chinese, whereas local officers on agreement terms are assumed to be proficient in Chinese. Their access to local conditions of service is therefore not enjoyed on general terms of equality with their local counterparts. This restriction is said to be attributable to a number of the distinctions prohibited by Art. 1(1), namely (a) their national or social origins, because it was their national or social origins which, as a result of CSR 115(1), caused them to be classified as overseas officers in the first place, and (b) their language, because Chinese is likely not to be their mother tongue. 130. This argument pre-supposes that there are a not insignificant number of local officers on agreement terms who are not proficient in Chinese, and are not required to be proficient in Chinese. Only then could there be a lack of equality on this footing between transferring and local officers. That assumption is not correct: Mr Jackson has deposed that “virtually all of them” are already proficient in Chinese.[107] I should frankly have been surprised by anything else. The fact that there may be the odd local officer on agreement terms who is not proficient in Chinese is irrelevant. It would be a perversion of the phrase “general terms of equality” if the existence of one or two non-Chinese speaking local officers on agreement terms were to eliminate the need for all overseas officers on agreement terms to be proficient in Chinese if the efficient operation of the Civil Service required it. 131. However, there is another basis on which it is said that the decision infringes Art. 21(c) of the BOR. The fact that proficiency in Chinese can in some circumstances be taken into account in the assessment of “service need” indirectly discriminates, so it is said, against overseas officers who apply to transfer to local conditions of service, because proficiency in Chinese is an attribute which, by reason of their national or social origins, proportionately fewer of them than local officers on agreement terms have. In that respect, the access of overseas officers on agreement terms to local conditions of service is said to be more restricted than that which local officers on agreement terms enjoy. However, if this is a departure from Art. 21(c), it is, in my view, a justifiable one. The efficient operation of the Civil Service requires officers to be able to stand in for colleagues at the same rank. Sensible and fair-minded people who are not civil servants would recognise that. How could that be achieved (in the case of officers who do not have specialist skills) without taking their proficiency in Chinese into account when assessing “service need”? The difference in treatment between overseas and local officers on agreement terms, if that is what it was, is in this respect entirely rational, and rationally connected to the need which justifies it. Nor do I think that it is disportionate to the need which justifies it. After all, it is not as if proficiency in Chinese is made a pre-condition of transfer: it is merely a factor to be taken into account in appropriate cases. I take the point that if a departure from Art. 21(c) in the form of a language requirement is to be justified, a language requirement must be shown to be rationally connected to the performance of the job in hand. That requirement is satisfied in view of the need for officers in the same rank to deputise for their colleagues when necessary. 132. For all these reasons, the decision of the SCS relating to proficiency in Chinese was not unlawful, and the challenge to it fails. (9) OFFICERS WHOSE AGREEMENTS HAD EXPIRED BY 30TH JULY 1993. 133. The decision challenged. Overseas officers on agreement terms whose agreements are not renewed may have accumulated undertaken leave by the date on which their agreements expire. They continue to be paid up to the date when their accumulated leave is exhausted. On 21st September 1993, the SCS announced[108] that overseas officers whose agreements had expired by 30th July 1993 without being renewed would not be eligible to apply for transfer to local conditions of service, even if they continued to be paid after 30th July 1993. 134. Standing. None of the four individual Applicants were given leave to challenge this decision. The AECS was given leave on condition that evidence was filled “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 on the ground that his contract of employment had expired prior to 30th July 1993, but who continued to receive leave payments, and who wishes the AECS to challenge [the] decision on his behalf.” That condition was satisfied. The AECS filed evidence identifying Mr. Paul Wellings as such as an officer. 135. The Respondents contend that the plight of Mr Wellings does not give the AECS standing on two grounds: 136. (i) Since there is no evidence that Mr. Wellings was a permanent resident of Hong Kong, it cannot be said that he acquired the right protected by Art. 21(c) of the BOR. I have two comments to make on this argument. First, the argument (if correct) would only defeat a challenge to the decision based on Art. 21(c) of the BOR. It would not defeat a challenge to the decision on grounds of irrationality. Secondly, the argument is incorrect. The question is not whether Mr Wellings was a permanent resident of Hong Kong, but whether he was eligible to acquire BDT citizenship to enable him to become a permanent resident of Hong Kong. It looks as if he was eligible to acquire BDT citizenship, because the material before me suggests that he lived in Hong Kong for 11 years prior to his departure from Hong Kong on 20th August 1993.[109] 137. (ii) Mr Wellings left the payroll of the Hong Kong Government on 5th January 1994 when his leave payments came to an end. He was thereafter no longer a member of the AECS, because membership of the AECS is only open to overseas officers “who are for the time being employed by the Hong Kong Government.”[110] Since he was not a member of the AECS on 27th October 1994 when the proceedings were commenced, the AECS has no standing to represent his interests. This argument is misconceived. It ignores the fact that one of the objects of the AECS is to “promote and protect the interests … of its former members”. (My emphasis.)[111] Accordingly, the AECS has the standing to challenge this decision. 138. When service in the Civil Service ends. Whatever the basis on which the decision is challenged, the argument that it is unlawful pre-supposes that officers like Mr. Wellings continued in the service of the Civil Service even after their last agreement expired. After all, persons who were no longer in the service of the Civil Service could hardly have been afforded the right to transfer to local conditions of service. “Transfer” connotes the idea of an officer still serving in the Civil Service. I do not think that officers whose agreements expire on a particular date can properly be regarded as continuing to serve in the Civil Service after that date simply because they continue to receive leave payments. In the absence of a regulation in the CSRs dealing with the point, the true analysis, in my view, is that their service ends on the date when their agreements expire, but that post-service payments are continued to be made to them to reflect accumulated leave which they had not taken by that date. Accordingly, the decision complained of was not unlawful, and the challenge to it fails. THE MODIFIED TRANSFER SCHEME 139. I have already dealt with those decisions in the original transfer scheme which survived the legislative freeze and were incorporated into the modified transfer scheme. However, a number of the features of the modified transfer scheme which were adopted for the first time are also challenged, and I propose to deal with each of them in turn. All but one of them are contained in the announcement made by the SCS on 28th July 1994.[112] (1) THE SELECTION EXERCISE 140. The decision challenged. The modified transfer scheme did not affect in any way the circumstances in which an overseas officer on agreement terms would be entitled to transfer from overseas conditions of service, except that he would not be transferring to local conditions of service, but to terms modelled on local conditions of service. The most significant change effected by the modified transfer scheme related to the rank which the transferring officer would hold once his transfer had taken place. The modifications which were introduced in that respect related only to transferring officers in promotion ranks, and were as follows: 141. (i) A determination would be made as to whether there was a qualified and suitable local replacement for the officer. If there was not, the transferring officer would continue to serve at his existing rank. 142. (ii) If it was determined that there was a qualified and suitable local replacement for the officer, a selection exercise would take place. A list of officers in the rank immediately below that of the transferring officer who were suitable for promotion to the rank held by the transferring officer would be prepared. The list would be drawn up entirely on merit, and could include overseas officers, though it would not include the transferring officer himself. If the best candidate on the list was an overseas officer, he would not be promoted, and the transferring officer would transfer at his existing rank. If the best candidate on the list was a local officer, the local officer would be promoted to the rank held by the transferring officer, and the transferring officer would transfer at the rank immediately below the rank which he had previously held.[113] 143. Two features of this selection exercise are challenged. The first is the decision to use the old CSR 281(1)(d) test to determine whether there should be a selection exercise at all. The second is the decision to demote transferring officers by one rank, and to promote a local officer by one rank, if the selection exercise reveals that the most suitable officer for promotion is a local officer. These two features of the selection exercise have been treated as two separate decisions. I do not think that is right. The effect of what was proposed was that a transferring officer would transfer to the next rank down if the best officer at the next rank down – of those in the rank who were qualified and suitable to replace the transferring officer – was a local officer. To break that decision down into its various component parts, and then to describe the various component parts as separate decisions, is, in my judgment, completely artificial. 144. The matter can be tested by looking at the two separate decisions from the view of standing. It can, I think, quite logically be said that an officer who is demoted on transfer has been adversely affected only by the second decision. If the adverse effect of the selection exercise is the possibility that he might be demoted on transfer, that eventuality would only arise if, in the selection exercise to which the second decision only relates, a local officer is adjudged to be the best candidate on the list. It is true that the need to hold the selection exercise (to which the second decision relates) arose as a result of the determination that there was a qualified and suitable local officer available to replace the transferring officer (to which the first decision relates). But the first decision had no other part to play in the final determination of whether the transferring officer should be demoted. Whether an officer was to be demoted – and therefore whether he was adversely affected by any of the decisions made by the SCS on this topic – depended in the final analysis only on the result of the selection exercise to which the second decision related. Thus, if I were to treat the two challenged features of the selection exercise as two separate decisions, I would have had to conclude that none of the Applicants had the standing to challenge the first. Accordingly, I propose to treat as the decision challenged the decision that a transferring officer would transfer at the next rank down if the best officer at the next rank down – of those in the rank who were qualified and suitable to replace the transferring officer – was a local officer. 145. Standing. Only two of the individual Applicants have the standing to challenge this decision (as well as the AECS). Mr Toes was obviously affected by it, because he was demoted by one rank, and Mr Bach may have been affected by it because the possibility of demotion may well have been a factor in his decision to refuse the offer to transfer to terms modelled on local conditions of service. Neither Mr Tromp nor Mr Wilson, however, have the standing to challenge the decision: neither of them were demoted on their transfer. 146. The basis of the challenge. The principal sting in the criticism of the decision challenged is that the transferring officer is demoted by one rank, and a local officer is promoted by one rank, even though the comparative merits of the two officers are not considered. Once the local officer comes top of the list, he is promoted, and the transferring officer is demoted, simply because he is a local officer and the transferring officer is not. The effect of that is that although the discriminatory effect of CSR 281(1)(d) has been removed, it has now re-appeared under a different guise. Whereas CSR 281(1)(d) prevented an overseas officer’s agreement being renewed if there was a qualified and suitable local replacement, now a transferring officer’s retention of his rank will be lost if there is a qualified and suitable local replacement ( provided that the local replacement is, apart from the transferring officer himself, the best person for the job). 147. There is another sting in the criticism of the decision challenged. It relates to an overseas officer on the list. Even if, in the selection exercise, he is found to be, apart from the transferring officer himself, the best person for the job, he is, unlike a local officer, not promoted. There is therefore inequality of treatment between the local officers on the list and overseas officers on the list, simply because some are local officers and others are not. This does not sit easily with the regulation that the selection of officers for promotion is considered on equal terms for all officers irrespective of their terms of service.[114] 148. There is, in my view, no answer to these criticisms. There can be no doubt that the decision challenged constituted a prima facie infringement of Art. 21(c). Access to terms modelled on local conditions of service at their existing rank for officers on agreement terms who had previously been on overseas conditions of service was being restricted: in certain circumstances, the transfer would only be permitted if they dropped a rank. That restriction was based on their national or social origins, because it was their national social origins which, as a result of CSR 115(1), had caused them to be classified as overseas officers in the first place. It amounted to inequality of treatment with local officers, in the determination of the rank which transferring officers would enjoy, because preferential treatment was accorded to local officers. I did not understand Mr Huggins to argue against any of that. 149. Justification. Can this departure from the right protected by Art. 21(c) be justified? The objective of the Government which is said to justify it is the maintenance of good industrial relations between the Government and local officers. That required the elimination of the resentment, which local officers felt, following the announcement of the original transfer scheme, about overseas officers avoiding the localisation policy which had become entrenched over many years by the simply expedient of being permitted to transfer to local conditions of service. The strength of feeling had been such that an unparalleled event in Hong Kong’s history had occurred: in defiance of the Government’s prerogative to determine employment policies in the Civil Service, the Legislative Council had been persuaded to intervene on behalf of local officers in order to thwart proposals which it believed (a) would seriously undermine the career prospects of local officers, and (b) would jeopardise a long-standing localisation policy intended to enable Hong Kong to be administered by Hong Kong people. In these circumstances, I have no doubt that sensible and fair-minded people who are not civil servants would recognise the Government’s genuine need to modify the original transfer scheme, so as to go some way towards placating local officers, even though that involved (a) compromising over rights which should never have been compromised, and (b) revising features of the original transfer scheme which the Government had proposed in order to remain within the law. The more difficult questions are whether the undoubted difference in treatment between overseas and local officers embodied in the modified transfer scheme was (a) rational and (b) proportionate to the need which justified it. 150. In my view, the difference in treatment was proportionate to the need which justified it:
151. The rationality of the difference in treatment can, I think, only be justified by reference to the need which is said to justify it. The particular form which the difference in treatment took cannot be rationalised outside that context. But, not without considerable hesitation, I have reached the view that, within the context of the need for the Government to maintain good industrial relations with local officers, the form which the difference in treatment took was rational. The Government’s objective could not have been achieved otherwise. It must be unique for a difference in treatment on grounds of national or social origins, which is not capable of being justified on its merits, to be nevertheless capable of being justified on the basis that it is a rational response to pressure from a particularly vociferous and powerful pressure group. But the dilemma which the Government faced after the legislative freeze on the original transfer scheme was simply not capable of being resolved without either an infringement of Art. 21(c) or a significant deterioration in the morale of local officers as a result of the shameless breach of trust which they believed the original transfer scheme amounted to. The Government had to decide between the lesser of these two evils. That was a matter for mature political judgment. I do not say that the Courts are not equipped to review such judgments, but I cannot characterise as irrational the Government’s decision as to which of the two evils should be avoided. 152. For these reasons, the decision relating to the selection exercise was not unlawful, and the challenge to it fails. (2) PROMOTION BEFORE TRANSFER 153. On 14th October 1994, the SCS announced that overseas officers on agreement terms who applied to transfer to terms modelled on local conditions of service would not be eligible for promotion prior to their transfer if their current agreements had less than 12 months to run.[118] This decision is challenged on the basis of its lack of rationality. All the Applicants were given leave to challenge it. They all have the standing to do so, because all four individual Applicants applied for transfer when their current agreements were due to expire within the next 12 months. 154. In reaching this decision, the SCS was purporting to apply the logic behind CSR 109(1)(a). At that time, CSR 109(1)(a) provided:
This applied to all officers irrespective of their conditions of service. The logic is obvious: officers should not be promoted if they are only going to spend a short time at the new rank. Mr Dykes criticises that logic on the footing that if it was applied strictly, an officer could never be promoted if there was a prospect of his being further promoted in the next 12 months. However, the fact that the logic can lead to an absurd result in a particular case is no ground for not applying the logic to other cases if it is appropriate to do so. 155. It was, in my view, entirely appropriate to apply the logic behind CSR 109(1)(a) to transferring officers. If a transferring officer was promoted before his transfer took effect, he might have served for a few months at the higher rank. However, on transfer, he might have been replaced by a local officer. He would then have had to serve at the next lower rank, i.e. his original rank before promotion. Nevertheless, he would have continued to receive a personal salary and benefits corresponding to the higher rank. That goes behind the logic behind CSR 109(1)(a). 156. There is one other ground on which the SCS’s decision can be supported. The consequence of the scenario which I have just described is that the promotion could be seen by local officers as a device to give a transferring officer extra salary and benefits. I accept, of course, that it is for the SCS, and not local officers, to run the Civil Service, but the maintenance of good industrial relations with local officers warrants taking into account what they might have seen as the cynical manipulation of the modified transfer scheme. 157. For these reasons, the decision complained of was not unlawful, and the challenge to it fails. (3) PROMOTION AFTER TRANSFER 158. The decision challenged. When the SCS announced the modified transfer scheme on 28th July 1994, he stated that transferring officers would not be eligible for promotion during the term of their new agreements, unless he decided that an exception should be made in the interests of the Civil Service. This prohibition on promotion applied to all transferring officers, whether they transferred at their existing rank or at the rank below.[119] All the Applicants were given leave to challenge this decision. In my view, they will have the standing to do so – even Mr Bach, because it is possible that this was a factor in his decision to refuse the offer of a new agreement modelled on local conditions of service. 159. Discrimination. In my view, this decision constituted a prima facie infringement of Art. 21(c). The right of access to the Civil Service includes, as I have already said, access to opportunities for promotion. A transferring officer had no chance of being promoted during his new agreement (unless the SCS decided otherwise). That restriction on his right of access to promotion was based on his national or social origins, because it was his national or social origins which, as a result of CSR 115(1), caused him to be classified as an overseas officer in the first place. It amounted to inequality of treatment with a local officer on agreement terms, because no restrictions were placed on the promotion prospects of such an officer. 160. Justification. Can this departure from the rights protected by Art. 21(c) be justified? In the course of the hearing, I suggested to Mr Dykes that the justification might have been to avoid the circumvention of the selection exercise. If a transferring officer transferred at the next rank below, he could have avoided the effect of that demotion by an immediate application for promotion. In due course, Mr Huggins adopted that argument. On reflection, though, the argument is flawed. It could only justify the non-eligibility for promotion of a transferring officer who transferred at the rank below. It could not justify the non-eligibility for promotion of a transferring officer who transferred at his existing rank. 161. To be fair, the evidence filed by the Respondents does not rely on this justification for the decision. The SCS’ justification for the decision was, as Mr Dykes correctly submitted, part and parcel of the attempt on the part of the Government to balance the interests of local officers and the need to remain within the law. One of the demands made by the SNEOA in the course of the negotiations was a restriction on the promotion of transferring officers during the currency of the agreements modelled on local conditions of service.[120] Accordingly, the need for this departure from the right protected by Art. 21(c) was the same as the need for the selection exercise itself: the desirability of maintaining good industrial relations with local officers and of eliminating the resentment they felt over the original transfer scheme. That required accepting their demands for a restriction on the promotion opportunities for transferring officers. 162. For the reasons I have already given, sensible and fair-minded people who are not civil servants would recognise that need. I also think that the difference in treatment between transferring officers and local officers on agreement terms was proportionate to the need which justified it. Even though it was not something which the AECS was ever prepared to agree to, it was a short-term measure. And although the form which the differences in treatment took cannot be rationalised when looked at on its own merits, it was rational in the context of the Government’s need to maintain good industrial relations with local officers. Accordingly, the decision complained of was not unlawful, and the challenge to it fails. (4) REDUCTION IN THE LENGTH OF THE NEW AGREEMENTS 163. When the SCS announced the modified transfer scheme on 20th July 1994, he stated that transferring officers would be offered agreements modelled on local conditions of service for 2½ years. There is no challenge to that decision. That is not surprising. As I have already said, the normal length of the agreements of officers on agreement terms is 2½ or 3 years.[121] However, the SCS also stated any extensions granted to a transferring officer’s previous agreement for the completion of naturalisation procedures and/or as a result of the legislative freeze on the original transfer scheme would be deducted from the length of the new agreement.[122] All the Applicants were given leave to challenge this decision. Again, they all have the standing to do so – even Mr Bach, because it is possible that this was also a factor in his decision to refuse the offer of a new agreement modelled on local conditions of service. 164. The attack on this decision is based only on its supposed irrationality. In my view, the decision was one which the SCS could reasonably reach. The transferring officer had already enjoyed the benefit of a new agreement by virtue of the extension to his previous one. Without the proposed reduction in the length of his new agreement, the transferring officer would have received the windfall of the period of the extension. The complaints which the Applicants make – namely, that the transferring officers were not responsible for the extensions and that the reduction in the length of their new agreements did nothing to advance localisation – do not address this justification for the decision at all. On the contrary: during the period of the extensions, transferring officers continued to enjoy the fringe benefits which local officers did not enjoy. Accordingly, the decision complained of was not unlawful, and the challenge to it fails. (5) THE LIMIT ON THE LENGTH OF THE NEW AGREEMENTS 165. The decision challenged. When the SCS announced the modified transfer scheme on 28th July 1994, he stated that the agreements granted to transferring officers would not last beyond 30th June 1997.[123] All the Applicants were given leave to challenge this decision. However, I do not think that any of the four individual Applicants have the standing to challenge it. The commencement dates of the new agreements modelled on local conditions of service which they were offered were all more than 2½ years before 30th June 1997. Accordingly, they could not have been affected by this decision. However, the AECS does have the standing to challenge it. Although no particular officer has been identified, it is more than likely that there is at least one transferring officer (a) who was a member of the AECS and (b) whose new agreement modelled on local conditions of service commenced less than 2½ years before 30th June 1997 and was therefore capped pursuant to the decision challenged. 166. Discrimination. In my view, this decision constituted a prima facie infringement of Art. 21(c). The right of access to the Civil Service includes, as I have said, access to the terms and conditions of service enjoyed by local officers. If transferring officers are denied agreements modelled on local conditions of service of a similar length to the agreements of local officers on agreement terms, their access to the terms and conditions of service enjoyed by local officers is restricted. That restriction on their access to the terms and conditions of service enjoyed by local officers is attributable to the national or social origins of transferring officers, because it was their national or social origins which, as a result of CSR 115(1), caused them to be classified as overseas officers in the first place. 167. Justification. Can this departure from the right protected by Art. 21(c) be justified? The justification for imposing the limits on the length of transferring officers’ agreements modelled on local conditions of service was that “the Chinese authorities might have reasonable concerns about any changes which might have a bearing on the SAR Government’s future employment policy.”[124] It was not thought that local officers on agreement terms or overseas officers on agreement terms who did not transfer to terms modelled on local conditions of service posed this problem.[125] 168. What I think the SCS had in mind was this. The modified transfer scheme amounted to a significant change of policy. For the first time, overseas officers could transfer to terms modelled on local conditions of service. The modified transfer scheme would only have an impact on the Civil Service after 30th June 1997 if the new agreements of transferring officers straddled the transfer of sovereignty. It was natural for the Government to wish to avoid being accused by the Chinese authorities of making major policy changes so close to the transfer of sovereignty, when those changes would have an impact on the establishment of the Civil Service after 30th June 1997. In my view, sensible and fair-minded people who are not civil servants would recognise the need for the inequality of treatment complained of. 169. The rationality of the inequality of treatment is attacked by the Applicants on three grounds: 170. (i) It is said to be inconsistent with the provisions of the Basic Law,[126] which on one view guarantee the continued service after 30th June 1997 of all those civil servants who were in post prior to 30th June 1997, including British and foreign nationals. They “may … retain their seniority with pay, allowances, benefits and conditions of service no less favourable than before.” These guarantees have recently been repeated by the Chinese authorities.[127] If the Chinese authorities are content for all overseas officers to remain in post after 30th June 1997, what was there for the Chinese authorities to be concerned about in respect of those overseas officers who are now employed on terms modelled on local conditions of service? I reject that criticism. The fact is that there is no inconsistency between such guarantees as are given in the Basic Law and any concern which the Chinese authorities may have about the modified transfer scheme if it has an impact beyond 30th June 1997. That is because the guarantees in the Basic Law relate only to persons who are in post on 30th June 1997. The modified transfer scheme would have an impact on who those persons might be. 171. (ii) The inequality of treatment is said to be inconsistent with the right which existed prior to 30th June 1992 for some overseas officers to transfer to the permanent establishment. If the Hong Kong Government is concerned about the attitude of the Chinese authorities over overseas officers who transfer to terms modelled on local conditions of service because their appointment could straddle the transfer of sovereignty, why was the Government not concerned about the rights which some overseas officers used to enjoy to transfer to the permanent establishment, because their service too could straddle the transfer of sovereignty? I reject this criticism as well. Ever since 28th March 1985, the Government has set its face against overseas officers being on the permanent establishment. The right which existed prior to 30th June 1992 related only to those overseas officers who had joined the Civil Service on agreement terms prior to 28th March 1985. Clearly, the Government was phasing out the right of transfer to the permanent establishment. It was retained for the time being only as a concession to those officers who were in post at the time the decision not to appoint overseas officers to the permanent establishment was made. 172. (iv) The inequality of treatment is said to be inconsistent with the opening-up scheme. Agreements which are offered as a result of the selection exercise to which the opening-up scheme relates are not subject to a provision that they will not last beyond 30th June 1997. Assuming, without deciding, that the logic of this argument is correct, I do not think that it gets the Applicants anywhere. The process of reasoning which justifies preventing the new agreements of transferring officers from straddling the transfer of sovereignty is not devalued by the fact that the same process of reasoning could have been applied to another scheme but was not. 173. However, the objective which the SCS wanted to achieve could have been achieved without departing from Art. 21(c). Local officers on agreement could, for the time being, have had the length of any new agreement which they were given capped in the same way as transferring officers. I recognise that that would have had the effect of temporarily depriving those officers whose new agreements commenced less than 2½ years before 30th June 1997 of agreements of the length which had been the norm in the past, but that did not justify taking a course of action which infringed the rights given to transferring officers by Art. 21(c). For this reason, therefore, the decision complained of was unlawful, and the challenge to it succeeds. THE OPENING-UP SCHEME 174. The decision to introduce the opening-up scheme was announced by the SCS on 19th December 1994.[128] This scheme was to apply to all officers on agreement terms (whether overseas or local) in promotion ranks whose agreements expired on or after 1st September 1995. The only exception was those overseas officers on agreement terms who were either ineligible for transfer to terms modelled on local conditions of service or who chose not to apply for transfer. Under the scheme, as I have already stated, the incumbent officer and the officer one rank below would compete for the post, and the most meritorious officer would be appointed. If the incumbent officer was not appointed, his agreement would not be renewed on its expiry, and he would leave the Civil Service. 175. Mr Jackson has explained the thinking behind this scheme. It is “to improve the mechanism for renewal of agreements”. Under the scheme, the renewal of agreements “is based on a set of objective criteria applicable to all officers who enter the competition”. The scheme “ensures a greater emphasis on objectively tested merit. The aim is to select the best person for the job.”[129] 176. The Applicants argue that this justification for the introduction of the scheme is a pretext. The true reason for the introduction of the scheme was to make those overseas officers on agreement terms who transfer to terms modelled on local conditions of service more vulnerable to replacement by local officers. The device used to achieve that end was a subtle but effective one. The long-standing prohibition on overseas officers on agreement terms applying to transfer to the permanent establishment was to apply to those overseas officers on agreement terms who had transferred to terms modelled on local conditions of service.[130] Local officers on agreement terms could avoid the opening-up of their posts to competition simply by applying to join the permanent establishment, whereas that escape route was not available to overseas officers on agreement terms who had transferred to terms modelled on local conditions of service. 177. Putting it in another way, prior to the introduction of the modified transfer scheme, overseas officers on agreement terms were vulnerable to the non-renewal of their agreements, by virtue of CSR 281(1)(d), if there was a qualified and suitable local replacement available. As a result of the opening-up scheme, overseas officers on agreement terms who had transferred to terms modelled on local conditions of service (and were therefore no longer vulnerable to the application of CSR 281(1)(d) were vulnerable to the non-renewal of their agreements if there was a better qualified and more suitable officer available. Local officers on agreement terms were not vulnerable in that way because they could escape the effect of the opening-up scheme by applying to join the permanent establishment. The Applicants contend that this was the real reason for the introduction of the opening-up scheme. 178. That the opening-up scheme had this effect is not in doubt. However, whether it was introduced so as to have this effect is another matter altogether. I cannot infer that it was introduced to have this effect simply because it did have this effect. What the Applicants are doing is questioning whether the stated motive for the introduction of the opening-up scheme was the true motive. That is not an issue which I can determine on the affirmations and affidavits which have been filed. What the SCS’s true motive in introducing the opening-up scheme was is an issue of fact. That issue of fact could only have been resolved by cross-examination of Mr Jackson. No application to cross-examine him was made. In these circumstances, I have no alternative but to treat the stated reason for the introduction of the opening-up scheme as the true reason for its introduction. 179. It is against that background that I turn to the three features of the opening-up scheme which are challenged. Before I do so, however, there is one point I should deal with. In support of the Applicants’ contention as to what the true motive for the introduction of the opening-up scheme was, Mr Dykes relied on the fact that the prohibition on overseas officers who had transferred to terms modelled on local conditions of service transferring to the permanent establishment was not referred to in the document issued in September 1994 outlining the proposals for the opening-up scheme.[131] These proceedings were commenced on 27th October 1994, and it could be inferred that it was as a result of that that it was decided that the prohibition should continue to apply to transferring officers. However, the September 1994 document identifies when local officers on agreement terms who wish to transfer to the permanent establishment should do so.[132] So too did the paper for a meeting of the Legco Panel on the topic.[133] The fact that the September 1994 document and the paper for the Legco Panel referred only to the right of local officers on agreement terms to apply to the permanent establishment shows that even at that stage it was proposed that overseas officers who transferred to terms modelled on local conditions of service should not have that right. (1) TRANSFER TO THE PERMANENT ESTABLISHMENT 180. In view of what I have already said, it is not surprising that the Applicants now challenge the decision, re-affirmed in the context of the opening-up scheme, not to permit overseas officers who transferred to terms modelled on local conditions of service to transfer to the permanent establishment. All the Applicants were granted leave to challenge this decision. With the exception of Mr Bach, they clearly all have the standing to do so. 181. The SCS’s justification for continuing, in the context of the opening-up scheme, the prohibition on transferring officers applying to transfer to the permanent establishment is exactly the same as his justification for doing so in the original and modified transfer schemes. For the reasons I have already given, the Respondents have not discharged the burden of justifying this departure from the right protected by Art. 21(c) of the BOR. All the more so, where the difference in treatment between local officers on agreement terms and overseas officers on agreement terms who transfer to terms modelled on local conditions of service has a much more far-reaching impact now that it enables only local officers to avoid the opening-up scheme. Accordingly, the decision complained of was unlawful, and the challenge to it succeeds. (2) PROFICIENCY IN CHINESE 182. In announcing the criteria which would be used in assessing the relevant merits of the various candidates for the incumbent’s post, the SCS stated:
All the Applicants were given leave to challenge this decision. In my view, they all have the standing to do so, with the exception of Mr Tromp. He has been informed that, as a result of a selection exercise under the opening-up scheme, his agreement would not be renewed. However, I was told from the Bar Table that proficiency in Chinese was not a requirement in any of the posts in his rank in his department, and the non-renewal of his agreement had nothing to do with any lack of proficiency in Chinese on his part. 183. The issues which the challenge to this decision raises are not dissimilar to the issues raised in connection with the earlier decision relating to proficiency in Chinese. I adopt what I have already said on the topic, though I should add two points : 184. (i) The exception for specialist skills which Mr Jackson deposed to in connection with the earlier decision was not repeated when Mr Jackson explained the thinking behind the current decision.[135] However, I think I can fairly assume that the thinking behind each of the decisions was the same. 185. (ii) The earlier decision focused attention on what should happen if all the officers in the same rank were required to communicate directly with people in Chinese. The current decision focuses on what should happen if a substantial proportion of officers in the same rank were required to communicate directly with people in Chinese. In my view, that is a distinction without a difference. The need for an officer to stand in for another is less important if not all officers in the rank have to communicate with people in Chinese, but the need for an officer to be able to do that still exists. 186. For these reasons and for the reasons set out earlier, the decision complained of was not unlawful, and the challenge to it fails. (3) LANGUAGE TRAINING. 187. The decision challenged. In the memorandum announcing the details of the opening-up scheme, the SCS stated :
188. Standing. All the Applicants were given leave to challenge this decision, although the leave which the four individual Applicants were given was conditional upon their filing evidence that they needed to under go Chinese language training. I fear that the drafting of this condition was deficient. The evidence which I think they should have been required to file was whether they spoke colloquial Chinese. It was only if they did not that they would have been affected by this decision. As it was, all but Mr Bach complied with the condition imposed, because all of them filed evidence to the effect that they had not yet been required to undergo Chinese language training. Since Mr Bach did not comply with the condition imposed, the conditional leave granted to him has lapsed. However, in view of the deficiency in the drafting of the condition, I propose to treat the other three individual Applicants as having the standing to challenge the decision, and it follows that if they have the standing to challenge it, so too does the AECS. 189. The context of the decision challenged. Although this decision was announced in the memorandum setting out the details of the opening-up scheme, it has nothing to do with the opening-up scheme itself. The renewal of a transferring officer’s agreement is not dependent on his undergoing Chinese language training. I propose to deal with the decision as a free-standing one, unconnected with the various schemes introduced by the SCS. I confess to being surprised by the challenge to this decision. After all, if the AECS wants its members to be treated as local officers, it is a little rich for the AECS to be complaining about those of its members who do not speak colloquial Chinese having to undergo Chinese language training. However, I must consider the challenge to the decision on its merits, and that I now do. 190. The basis of the challenge. The decision is challenged on the basis that it constitutes an infringement of Art. 21(c) in that it is not a requirement which is imposed on local officers on agreement terms. That presupposes that there are a not insignificant number of local officers on agreement terms who do not speak colloquial Chinese. I have rejected this argument in another context. The more compelling ground on which the decision is challenged is its irrationality. There is no need, it is said, for transferring officers to be able to speak colloquial Chinese if it has no rational connection with their duties. In my view, there is no answer to this criticism. It is said that proficiency in colloquial Chinese “is a means to improve the effectiveness and efficiency of those officers who were formerly appointed on overseas terms by enabling them to become more proficient in the language spoken by the general public.”[137] But how is that effectiveness and efficiency improved if they do not need to speak colloquial Chinese to discharge their own duties and those duties of other officers in the same rank who they might be required to stand in for? Indeed, the approach of the SCS is inconsistent with the criteria for determining (a) “service need” in assessing whether an overseas officer is eligible to transfer to terms modelled on local conditions of service, and (b) who is the most meritorious in the selection exercise under the opening-up scheme. Those criteria relate to the officer’s efficiency and effectiveness in performing his duties and those duties of officers who he might be called upon to stand in for. 191. It may be that the SCS intended to limit the requirement to undergo Chinese language training to officers who have to speak colloquial Chinese to perform those duties. But he did not say that in his announcement, nor is there any evidence that, despite the terms in which the requirement was expressed, the requirement was nevertheless intended to be limited in that way. For these reasons, therefore, the decision complained of was unlawful, and the challenge to it succeeds. THE PRINCIPAL OFFICIAL POSTS 192. The decisions challenged. The Basic Law identifies a number of senior posts which can only be held by Chinese citizens who are permanent residents of the SAR with no right of abode in any foreign country, and who have ordinarily resided in Hong Kong for a continuous period of at least 15 years.[138] The Government believes that these posts should be filled, well before 1997, by officers who are, at least potentially, able to continue in these posts after 30th June 1997. Most of these posts are in the Administrative Service or have traditionally been filled by members of the Administrative Service. Thus, it was decided that steps should be taken in the Administrative Service to ensure that there was a sufficient pool of officers who were potentially eligible for these posts. Accordingly, in June 1994, the SCS announced that there would have to be a limit on the number of overseas officers in the ranks in the Administrative Service immediately below that of Secretary. That ceiling was fixed at two AOSGA posts and four AOSGB1 posts.[139] 194. A similar scheme was established in the Attorney-General’s Chambers. The post of Attorney-General will be a Principal Official post in the SAR Government. So too will any of the five Law Officers if any of them acts as his deputy. In the light of that, it was recommended that special measures be taken to build up a pool of local officers who would be potentially eligible for these posts.[140] Those measures included the grooming of up to six local officers at the rank of Deputy Principal Crown Counsel for the posts of Principal Crown Counsel. The effect of the adoption of these measures would be the acceleration of the promotion of those local officers. These recommendations were adopted, and the scheme, which came to be known as the Succession Posts Scheme, was announced by the Attorney-General in the 1994 Policy Address. 194. Standing. The four individual Applicants were not given leave to challenge these decisions. None of them were employed in the Administrative Service or the Attorney-General’s Chambers. The AECS was given leave to challenge these decisions on the basis that it represented a class of officers, at least one of whom was likely to be affected by these decisions. 195. The fact that the AECS has not been able to identify a particular officer affected by some of the other decisions challenged in these proceedings has not prevented me from finding that the AECS has the standing to challenge those decisions. I have found in relation to them that it was nevertheless possible that there was in the Civil Service a member of the AECS affected by them, and who wished the AECS to challenge the decisions on his behalf. However, unlike all the other decisions challenged in these proceedings, the decisions relating to the Administrative Service and the Attorney’s General’s Chambers are decisions which relate to particular Government departments. The limited number of officers affected by these decisions can be identified. In the Administrative Service, they are those officers who would otherwise have been eligible for promotion to AOSGA and AOSGB1 posts but who are not potentially eligible to be a Principal Official. In the Attorney-General’s Chambers, they are the officers at the rank of Deputy Principal Crown Counsel who are likewise not potentially eligible to be a Principal Official. Because such officers can be identified with ease, I have reached the conclusion that the AECS only has the standing to challenge these decisions if they identify such an officer who is a member of the AECS and who wishes the AECS to challenge these decisions on his behalf. 196. As for officers in the Administrative Service, the AECS relied in the course of the hearing, on Mr. Jackson himself and Mr. Robert Footman, who were both superseded for promotion to AOSGA and AOSGB1 posts.[141] However, Mr. Huggins told me from the Bar Table that neither of them are members of the AECS, and neither of them is willing for the AECS to challenge the decisions relating to the Administrative Service on their behalf. Plainly, no reliance can be placed on them to establish standing. The only other officer who the AECS relies upon is an unidentified officer who is stated in Answers to Interrogatories to be a member of the AECS and who wishes the AECS to challenge the decision relating to the Administrative Service on his behalf. What the Answers to Interrogatories say about him is as follows :
Mr. Dykes told me that Mr. X was not prepared under any circumstances to be identified. 197. It may be that the information given about Mr. X is inadmissible as hearsay[143], but I am prepared to assume, for present purposes, that it is admissible. I am also prepared to assume that Mr. X is not potentially eligible to be a Principal official. What I cannot assume is that he would have been eligible for promotion to AOSGA and AOSGB1 posts. There may be all sorts of reasons why he would not have been eligible: examples might be his age (the policy has been that overseas officers in the Administrative Service have generally been required to retire at the age of 57) and his health. I respect, of course, Mr. X’s desire for privacy, but if he is not, albeit for understandable reasons, prepared to come out into the open, the Respondents are in an impossible position. They cannot point to any matters which might show that he was not eligible for promotion. For this reason, the AECS cannot rely on Mr. X to establish its standing to challenge the decision relating to the Administrative Service. Since none of the Applicants, therefore, have the standing to challenge this decision, the challenge to it fails. 198. As for the Attorney’s General’s Chambers, the AECS relies on Mr. Alan Roger. I know from an affirmation made by him in these proceedings that he is the Immediate Past President of the AECS. The Answers to Interrogatories tell me that he wishes the AECS to challenge the Succession Posts Scheme on his behalf. What the Answers to Interrogatories say about him is as follows :
Again, it may be that the information about Mr Roger is inadmissible as hearsay, but I can, I think, assume that it is correct. The Respondents have not asserted that it is not. Having lived in Hong Kong for only eight years, Mr Roger is not potentially eligible to be a Principal Official. As a Deputy Principal Crown Counsel, his chances of promotion to Principal Crown Counsel are affected by the Succession Posts Scheme. The Respondents do not suggest otherwise. They simply take the same point about him as they took about Mr. Wellings, namely that Mr. Roger is not a permanent resident of Hong Kong. That point does not get the Respondents anywhere for the reasons I have already given. Accordingly, the AECS can rely on Mr. Roger to establish its standing to challenge the Succession Posts Scheme. 199. Irrationality. The decision to implement the Succession Posts Scheme is said to be irrational on two grounds : (i) the Basic Law does not contemplate the creation of a pool of officers from which the Principal Officials will be selected. Indeed, it contemplates continued employment for all officers in post on 30th June 1997, including British and foreign nationals. It is therefore said to be irrational to groom officers for the Principal Officials posts at all. I reject this criticism. The fact that the Basic Law does not contemplate the creation of a pool does not make the creation of a pool irrational. Sensible manpower planning requires the creation of a pool of talent from which senior officers will be drawn in the future. And although the Basic Law contemplates continued employment for all officers in post on 30th June 1997, it excludes a class of officers from the Principal Official posts. (ii) Even if it is rational to groom officers to be Principal Officials, it is said to be irrational to include in the pool officers whose eligibility is only potential. Should not the pool be limited only to those officers who are in fact eligible to the Principal Officials? After all, officers who are only potentially eligible may never be eligible in fact. I reject this criticism as well. Only Chinese citizens are eligible to be Principal Officials. It may be that few, if any, of the officers currently in line for the Principal Official posts are at the moment Chinese citizens. To include in the pool, therefore, only persons who are Chinese citizens now could mean that there would be no officers in the pool at all. It is therefore necessary to include in the pool officers whose eligibility to be Principal Officials is only potential. That means including in the pool officers who have the potentiality to become Chinese citizens by 1997, even though to do so might involve them having to divest themselves of their current nationality. 200. Discrimination. The Succession Posts Scheme is said to be an infringement of Art. 21(c) of the BOR. That is because the scheme only applies to local officers. The opportunity for accelerated promotion to the post of Principal Crown Counsel is denied to overseas officers. That is attributable to their national or social origins, because it was their national or social origins which, by virtue of CSR 115(1), caused them to be classified as overseas officers in the first place. If local officers who are only potentially able to qualify to be Principal Officials are included in the scheme, so too should those overseas officers who are potentially able to do so. 201. In evaluating this argument, it is necessary to draw a distinction between officers whose potentiality to be eligible for the Principal official posts is only theoretical, and those whose potentiality to be eligible for them is very real. If only local officers have a real potentiality to be eligible for the Principal official Posts, the inequality of treatment is justifiable. Sensible and fair-minded people who do not serve in the Attorney-General’s Chambers would recognise the need to afford only officers who have a real potentiality to become Principal Officials accelerated promotion to the post of Principal Crown Counsel. Limiting accelerated promotion to the post of Principal Crown Counsel to such officers is both rational and proportionate to that need. It may be that there is a tension between the eligibility requirements for the Principal Official posts in the Basic Law and Art. 21(c) of the BOR, but that does not make the need to groom officers who have a real potentiality to become Principal Officials any the less real. 202. On this analysis, all that remains is to determine whether it is factually correct that only local officers have a real potentiality to become Chinese citizens, and therefore eligible to be Principal Officials. On that issue, I have the expert evidence of Professor Anthony Dicks Q.C., an acknowledged expert on Chinese law. His evidence is not challenged, and there is no reason why I should not accept it. The thrust of his evidence is that an application for naturalisation as a Chinese citizen must be approved by the Ministry of Public Security. The power of the Ministry to approve such applications is entirely discretionary, but at the very least it must be satisfied that the applicant for naturalisation is a “close relative” of one or more Chinese persons or has a “fixed residence” in China, or that there are other “proper” or “legitimate” reasons for the application. “Legitimate” reasons are “almost certainly” limited to “devotion to the cause of [China’s] revolution or construction”, and being adopted by a Chinese citizen. Professor Dicks accepts that “it is not impossible for foreign nationals whose ethnic origin is not that of any of the numerous ethnic groups who together comprise the population of China to acquire Chinese nationality by naturalisation”[145], but the thrust of his evidence is that they are unlikely to be able to do so. Since the effect of CSR 115(1) is that local officers are overwhelmingly likely to be ethnic Chinese, and that overseas officers are not, it is the case that local officers have a real potentiality to become Chinese citizens, and overseas officers do not. 203. For these reasons, the Succession Posts Scheme is lawful, and the challenge to its legality fails. THE UNIFORM TERMS SCHEME 204. The Government’s modified proposals for a uniform set of conditions of service for all civil servants were published on 24th June 1994.[146] Two of the proposals are challenged in these proceedings:
205. However, an important question arises as to whether these proposals amount to decisions of the kind which are amenable to judicial review. The fact that they were only proposals is borne out by the document itself, which concluded :
Mr. Huggins told me that it is the Government’s present intention to implement these proposals unless very compelling reasons are advanced for changing that intention. 206. There are two powerful reasons which justify the conventional view that mere proposals should not be susceptible to judicial review – even if the proposals are likely to be put into effect. First, there is always the possibility that they might not be put into effect. In that event, the proceedings would have served no useful purpose. Secondly, no one has the standing to challenge mere proposals. Until the proposals are put into effect, no one is affected by them. 207. Mr. Dykes argues that the conventional view is now an outmoded one in view of the decision of the House of Lords in R. v. Secretary of State for Employment ex p. Equal Opportunities Commission [1994] 2 WLR 409. In that case, the Secretary of State had been requested by the Commission to indicate whether he was willing to introduce legislation to remove discrimination which the Commission argued was inherent in existing legislation. The Secretary of State replied that the Government believed that the existing legislation was not discriminatory. The House of Lords held that (i) there had been no decision, but (ii) the Courts had the jurisdiction to declare whether the existing legislation was discriminatory, and (iii) proceedings by way of judicial review was the appropriate procedure for the determination of that issue. 208. The basis upon which the House of Lords held that there had been no decision was that the Secretary of State’s reply did no more than express the view that the existing legislation was not discriminatory.[149] I confess to being surprised by that reasoning. The reply had gone on to state that the Government had no plans to change the aspects of the existing legislation which were alleged to be discriminatory. I would have thought that it was strongly arguable that that statement amounted to a decision not to introduce amending legislation for the time being. Be that as it may, it is not for me to question the view of the House of Lords, and I proceed on the assumption that a decision is not a necessary prerequisite for an application for judicial review. 209. However, I do not think that this case assists the Applicants. Whatever else can be said the Government had adopted a particular stance on whether the existing legislation was discriminatory. There was nothing provisional about that stance. The only way the Government’s view was going to be altered was if the Courts declared that its view of the law was wrong. Contrast that with the present case. The Government’s modified proposals for a uniform set of conditions of service were still provisional. A further consultation exercise was still to take place. In my view, even if there does not have to be a decision to warrant the invocation of proceedings by way of judicial review, there must have been a concluded stance on whatever it is sought to challenge. It is for that reason that I conclude that the Government’s modified proposals for a uniform set of conditions of service are not amenable to judicial review. 210. Despite that, both Mr. Dykes and Mr. Huggins asked me to express a view on the legality of the two challenged features of the proposals, upon the assumption that they will in due course be carried into effect. I do not think that it would be appropriate to do so. I acknowledge that the mere fact that an issue is hypothetical does not mean that the Courts do not have the jurisdiction to determine it: the fact that an issue is hypothetical goes only to whether in its discretion the Court should grant declaratory relief.[150] The only declaration I could grant would be that, in the (albeit likely) event of the proposals being carried into effect, they would be either lawful or unlawful as the case may be. However, that would be so close to the Court giving an advisory opinion that I would not be prepared to grant such relief. If I cannot make such a declaration, it follows that it would be wrong for me to express a view on the topics which the parties want me to. THE OFFERS TO THE FOUR INDIVIDUAL APPLICANTS 211. The terms on which the four individual Applicants were offered new agreements on terms modelled on local conditions of service are challenged by the individual Applicants in these proceedings. They are challenged on the basis that they incorporated the decisions complained of. I need only deal with those decisions which I have found to be unlawful, and which any of the four individual Applicants have the standing to challenge. On the assumption that the terms of the offers incorporated the decision to require the Applicants to undergo training in Chinese, the offers which Mr. Tromp, Mr. Wilson and Mr. Toes received were unlawful to that extent. On the assumption that the terms of the offers to the four Applicants incorporated the decision not to permit them to transfer to the permanent establishment, the offers they received were unlawful to that extent as well. CONCLUSION 212. Relief. I have in the course of this judgment identified those decisions which were lawful, and those which were not. Mr. Dykes and Mr. Huggins agreed early in the hearing that the only relief I should give at this stage is declaratory relief, and that if further relief is sought in the light of my judgment the parties should have liberty to restore the Motion for that purpose. I make a consent order to that effect. I leave it to the parties to draft such declaratory relief as my judgment renders appropriate, and I give them liberty to restore the Motion in the event of a suitable draft not being agreed. 213. Costs. I have found that five of the decisions challenged were unlawful. All the other decisions I have found to be either lawful or not amenable to challenge. However, two of the decisions which I have found to be unlawful, viz. the prohibition on transferring officers transferring to the permanent establishment, are particularly significant ones. The spoils of battle have been sufficiently shared, I think, to say that neither of the principal protagonists in the litigation (the AECS and the SCS) have been victorious. In these circumstances, the right course is for all the parties to bear their own legal costs. The order nisi as to costs which I make, therefore, is that there be no order as to costs. That will also apply to the costs reserved on 25th November 1994. 214. Miscellaneous matters. There are four other things I want to say in conclusion: (i) Mr. Huggins criticised the Applicants for retreating in the course of the proceedings from some of the more serious allegations they had originally made. I acquit the Applicants of that criticism. It is natural in the course of a case of this complexity for the arguments to be refined when the hearing takes place. It may be that some of the allegations were originally expressed in language which have since been modified, but it cannot be denied that the strength of feeling generated by the Government’s attempts to re-organise the Civil Service has been intense. If emotions were running a little high, I think that those who used strong language because they perceived their interests to be threatened can be forgiven for doing so. (ii) I have attempted to address in this judgment all the principal arguments which have been canvassed before me. However, it has not been possible to address every argument. Otherwise, this already lengthy judgment would have been even longer. Those arguments which I have not touched upon in this judgment are ones which I have either not accepted or not regarded as decisive of the issues before me. In particular, I have not addressed in detail the statistics which the interrogatories I ordered on 4th August 1995 have revealed. I have only referred to those which I have regarded as having a real impact on the legality of the decisions challenged. (iii) I wish to make two recommendations for the future handling of a case which has so many different issues. First, with the advantage of hindsight, I would have preferred to hear both sides’ arguments on each issue before proceeding to the next issue. Secondly, again with the advantage of hindsight, I would have preferred all the exhibits to the affidavits and affirmations to have been in separate bundles in chronological order. That would have enabled me to see more clearly the history of the localisation policy, and of the various schemes which were introduced. Consideration should be given in the future to the adoption of those courses in an appropriate case. (iv) Finally, I wish to pay tribute to the industry and research which has gone into the preparation of this case, and the comprehensive nature of the arguments of counsel. I could not have produced this judgment without the enormous assistance I have had. I do not wish to single anyone out in particular, but I think that the burden which Mr. Dykes was shouldering on his own was an unusually onerous one. Although some of the Applicants and officers of the AECS were available to help him on questions of fact, he did not appear to me to have had the legal back-up which Mr. Huggins an Mr. Fok had. Having said that, though, I wish to express my personal thanks to everyone responsible for making my task less difficult than it would otherwise have been.
Representation: Mr. Philip Dykes, inst’d by Messrs. Boase & Cohen, for the Applicants Mr. Adrian Huggins Q.C. Leading Mr. Joseph Fok, inst’d by Messrs. Wilkinson & Grist, for the Respondents [1] “Organisation of the Colonial Service”, Colonial Office (Col. 197), 1946, para.3. [2] Ibid., para. 3. [3] Ibid., para. 21(vii). [4] Ibid., para. 13. [5] “Service with Overseas Governments”, Cmnd. 1193, para. 32. [6] Report of the Hong Kong Salaries Commission, 1947, para. 30. [7] Secretarial Standing Circular No. “L” 10, 5th September 1961, para. 1. [8] Ibid., paras. 4-6. [9] “General Guidelines”, issued by the Principal Assistant Secretary for the Civil Service (Appointments), 23rd March 1979, para. 4. [10] Joint Declaration, Annex I, Part IV, final para. [11] CSR, Introduction, para. 4. [12] CSR 115(2). [13] CSR 100 (15). [14] CSR 100(14). [15] CSR 100 (5). [16] CSR 100(12)(d). [17] CSR 112(4). [18] CSR 121(2). [19] CSR 121(3). [20] CSR 121(2)(c). [21] CSR 121(1). [22] CSR 109(1)(a). [23] CSR, Introduction, para. 4. [24] 1968 Agreement between the Hong Kong Government and the Main Staff Associations, clause 15(1). [25] Notes of Meeting, the SCS and representatives of the AECS, 19th March 1993. [26] Circular Memorandum No. 79/93, 25th October 1993. [27] Circular Memorandum No. 36/94, 24th June 1994. [28] Affidavit (2) of Christopher Jackson, para. 59. [29] Letter, the Governor to the Convenor of the LegCo Panel on Public Service, 3rd September 1993. [30] Minutes, 177th meeting of the SCSC, 13th August 1993, para. 4767. [31] Memorandum SPH 1/1/C(C)(93)III. [32] Minutes, 177th meeting of the SCSC, 13th August 1993, para. 4770. [33] Affidavit (2) of Christopher Jackson, para. 98. [34] Memorandum SPH 1/1/C(C)(93)V, 23rd August 1993; Circular Memorandum No. 64/93, 13th September 1993; Circular Memorandum (78) in SPH 1/1/C(C)(93)VI, 21st September 1993. [35] Hong Kong Legislative Council, Reports of Debates, 15th December 1993, pp. 195-199. [36] Paper for LegCo Panel on Public Service, 8th June 1994. [37] Affidavit (2) of Christopher Jackson, para. 188 [38] Circular Memorandum No. 47/94. [39] Affidavit (2) of Christopher Jackson, paras. 185-188. [40] Memorandum SPH 1/1/C(C)(94)XV. [41] Circular Memorandum No. 47/94, 28th July 1994, para.6. [42] “Proposals for Opening Up Agreement Officers’ Positions for Competition”, 28th September 1994. [43] CSB Circular No. 24/94; Circular Memorandum No. 79/94. [44] Arts. 61 and 101. [45] Letter, the SCS to members of the Administrative Service, 15th June 1994. [46] The 1994 Policy Address. [47] Wade and Forsyth, Administrative Law, 7th ed., pp. 710-711. [48] Memorandum SPH 1/1/1C(C)(93)III. [49] Section 2A of the Immigration Ordinance. [50] Section 18 of, and paras. 5-8 of Sch. 1 to, the British Nationality Act 1981. [51] Affidavit (2) of Christopher Jackson, paras. 85-87. [52] Section 2(1) of the Civil Aviation Ordinance (Cap. 448). [53] Art. 24(6) of the Basic Law. [54] Compare R. v. Sin Yau Ming[1992] 1 HKCLR 127 with Waung J’s powerful judgment in Kwan Kong Co. Ltd. V Town Planning Board (HCMP 1679/94). [55] See section 59A of the Immigration Ordinance. [56] See Art. 1 of the International Convention on the Elimination of All Forms of Racial Discrimination. [57] Hong Kong Legislative Council, Reports of Debates, 25th July 1990, pp. 210-211. [58] Sections 6(1) and 18(1) of the Electoral Provisions Ordinance (Cap. 367). [59] Section 7-11 of the Electoral Provisions Ordinance. [60] Sections 18 and 19 of the Electoral Provisions Ordinance. [61] Re Gape [1952] 1 Ch. 743 at p. 749, in which the Court of Appeal had to construe the phrase “take up permanent residence in England” in a will. [62] Art. 24(4) of the Basic Law. [63] Arts. 24(1)-(3) of the Basic Law. [64] That is said to be the effect of section 20 of the Citizenship Act (Cap. 349) of Sri Lanka and section 9 of the Citizenship Act 1955 of India. [65] Affidavit (4) of the Christopher Jackson, para. 4; affidavit (7) of the Christopher Jackson, para. 9. [66] Memorandum SPH 1/1/C(C)(93)III. [67] Affidavit (8) of Christopher Jackson. [68] Paras. 15 and 19.1. [69] Memorandum SPH 1/1/C(C)(93)V. [70] Circular Memorandum (78) in SPH 1/1/C(C)(93)VI. [71] Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Services [1985] AC 374 at p.410G. [72] Affidavit (2) of the Christopher Jackson, para. 22(3). [73] Annex B to Memorandum SPH 1/1/C(C)(93)III, para. 1. [74] Affidavit (7) of Christopher Jackson, para. 9. [75] Affidavit (2) of Christopher Jackson, para. 96. [76] Ibid. [77] Ibid., para. 97. [78] Circular Memorandum No. 64/93, para. 3(a) [79] CSRs 1212(3) (casual leave) and 1222(5) (vacation leave). [80] CSR 1212(3). [81] CSRs 1225(4) and 1235. [82] Affidavit (2) of Christopher Jackson, para. 106 (casual leave); Circular Memorandum No. 64/93, para. 3(a)(iii)(vacation leave). [83] Agreement (2) of Christopher Jackson, para. 105(a). [84] CSR 1181(2). [85] CSR 1183(2)(d). [86] CSR 1183(1). [87] CSR 1153(2). [88] CSR 1237. [89] Under CSR 1320. [90] Circular Memorandum No. 64/93, para. 3(b). [91] CSR 1376(4). [92] CSRs 766(1)(school passages) and 1335(d)(i) (overseas education allowances). [93] Circular Memorandum No. 64/93, paras. 3(c) and 3(d). [94] CSRs 767 (school passages) and 1335(d)(ii) (overseas education allowances). [95] Memorandum SPH 1/1/C(C)(93)III, para. 4 [96] Circular Memorandum No. 64/93, para. 3(g). [97] circular Memorandum No. 47/94, Annex A, para. 32 [98] Circular Memorandum No. 79/93, 25th October 1993, para. 5. [99] Art. 100. [100] Memorandum SPH 1/1/C(C)(93)III, para. 3(a). [101] Circular Memorandum (78) in SPH 1/1/C(C)(93)VI, para. 2. [102] Affidavit (7) of Christopher Jackson, para. 9. [103] Affidavit (2) of Christopher Jackson, para. 116. [104] Affidavit (4) of Christopher Jackson, para. 6. [105] The 1994 Policy Address. [106] Art. 9. [107] Affidavit (2) of Christopher Jackson, para. 243. [108] Circular Memorandum (78) in SPH 1/1/C/(C)(93)VI, para. 10. [109] Answers to Interrogatories, 3rd May 1995, para. 1(d). These interrogatories were contained in an affidavit made by Mr. Royston Griffey, the President of the AECS. The evidence relating to the length of Mr. Wellings’ stay in Hong Kong is technically inadmissible as hearsay, because I do not suppose that Mr. Griffey was speaking from his personal knowledge. I have taken it into account de bene esse. [110] Constitution and Rules of the AECS, Art. 5(1). [111] Ibid. Art. 3(1)(a). [112] Circular Memorandum No. 47/94. [113] Circular Memorandum No. 47/94, Annex A, paras. 23, 14, 18-19. [114] CSR 109(1)(a). [115] Circular Memorandum No. 47/94, para. 2 [116] Ibid, para. 3. [117] Letter, the SNEOA to the SCS, 6th June 1994. [118] Memorandum SPH 1/1/C(C)(94)XV. [119] Circular Memorandum No. 47/94, Annex A, para. 30. [120] Letter, the SNEOA to the SCS, 12th April 1994. [121] CSR 100(12)(d). [122] Circular Memorandum No. 47/94, para. 4. [123] Circular Memorandum No. 47/94, para. 4. [124] Affidavit (2) of Christopher Jackson, para. 194. [125] Affidavit (4) of Christopher Jackson, para. 14. [126] Art. 100 and 101. [127] View of the Political Sub-Group of the Preliminary Working Committee, undated; newsletter of the AECS reporting the views of Lu Ping, 25th May 1995. [128] CSB Circular No. 24/94; Circular Memorandum No. 79/94. [129] Affidavit (2) of Christopher Jackson, paras. 236, 238. [130] CSB Circular No. 24/94, Annex A, Part II, para. 5. [131] “Proposals for Opening Up Agreement Officers’ Positions for Competition”, 28th September 1994. [132] Ibid., para. 8. [133] Paper for Legco Panel on Public Service, 17th October 1994, para. 12. [134] CSB Circular No. 24/94, para. 14. [135] Compare paras. 116 and 242 of affidavit (2) of Christopher Jackson. [136] CSB Circular No. 24/94, para. 15. [137] Affidavit (2) of Christopher Jackson, para. 243. [138] Arts. 61 and 101. [139] Letter, the SCS to members of the Administrative Service, 15th June 1994, Annexure, para. 9. [140] Third Report of the Working Group on the Localisation of the Attorney-General’s Chambers, 30th September 1993. [141] Affidavit (2) of Christopher Jackson, para. 153. [142] Answers to Interrogatories, 3rd May 1995, para. (1)(e). [143] See footnote 109. [144] Answers to Interrogatories, 3rd May 1995, para. 1(b). [145] Affidavit of Anthony Dicks, para. 23. [146] Circular Memorandum No. 36/94. [147] Ibid., para. 8. [148] Ibid., para. 10(a). [149] Per Lord Keith of Kinkel at p. 418C-D. [150] See Zamir and Woolf, “The Declaratory Judgment”, 2nd ed., paras. 4.032-4.042. |
Cases cited in this judgment