The Government of the HKSAR v. Michael Reid Scott

FACV No. 16 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 16 OF 2004 (CIVIL)

(ON APPEAL FROM CACV NO. 401 OF 2003)

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Between :

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FACV No. 8 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2005 (CIVIL)

(ON APPEAL FROM HCAL NO. 38 OF 2004)

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Between :

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Court : Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ

Date of respondent's written grounds: 14 February 2006

Date of decision: 6 April 2006

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D E C I S I O N

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Chief Justice Li:

1.On 20 and 21 June 2005, having already studied a large volume of written materials, we heard extensive oral argument from the parties in three appeals which were heard together, namely FACV No.15 of 2004, FACV No. 16 of 2004 and FACV No. 8 of 2005.  The Government was the appellant in all three appeals.  Mr Michael Reid Scott was the respondent in two of them, namely FACV No. 16 of 2004 and FACV No. 8 of 2005.  On 13 July 2005 we handed down a judgment allowing all three appeals.  In so doing we declared constitutional the relevant provisions in the Public Officers Pay Adjustment Ordinance, Cap. 574, and the Public Officers Pay Adjustments (2004/2005) Ordinance, Cap. 580, which Mr Scott and the other respondent had attacked as unconstitutional. 

2.By a letter dated 3 August 2005 to the Registrar, copied to the appellant and the other respondent, Mr Scott said that he would be filing an application to re-open the three appeals.  This letter runs to 81 paragraphs.  It concluded by asking the Registrar for any advice that she may wish to offer regarding the procedure for applying to re-open the appeal.  By a letter dated 5 August 2005 to Mr Scott, copied to the appellant and the other respondent, the Registrar rightly said:

“It is not appropriate for advice to be given to you as requested in your letter.  It is entirely a matter for you to consider your own position and what step you wish to take.

If and when an application to re-open a final appeal is made, it will be placed before the Court for consideration.  What orders and directions the Court makes, including as to costs, are of course matters for the Court.”

3.On 14 February 2006 Mr Scott took out two notices of motion, one in FACV No. 16 of 2004 and the other in FACV No. 8 of 2005.  Those notices of motion ask us to re-open those two appeals, dismiss them, declare the relevant legislative provisions unconstitutional in so far as they apply to Mr Scott and declare that he is not bound under his contract of service to accept a reduction in pay.  Attached to the notices of motion are written grounds running to 346 paragraphs.  Those notices of motions and written grounds were accompanied by an affirmation of Mr Scott’s dated 14 February 2006 which exhibited a bundle of documents running to 51 pages.  The notices of motion state that they are to the appellant and the Registrar.  At the end of each notice of motion it is said

“… that no order for the costs of this notice is sought on the ground that the exceptional circumstances relevant to the inherent jurisdiction of the Court of Final Appeal in this case raise questions of great public and general importance and were beyond the control of either the Appellant or the Respondent.”

4.It is only for wholly exceptional reasons that the Court would ever re-open an appeal.  Nothing put forward by Mr Scott amounts to or even approaches any such reason.  His grounds are obviously and utterly devoid of merit.  Accordingly his motions are dismissed.  

5.Mr Scott’s letter of 3 August 2005, his two notices of motion, his written grounds, his affirmation and the bundle of documents exhibited thereto may have resulted in the appellant incurring considerable costs.  We direct that the appellant notify the Registrar in writing on or before 21 April 2006 whether or not it seeks costs in relation to Mr Scott’s two notices of motion, copying such notification to Mr Scott.  There will be no order as to costs if the appellant does not seek costs.  If the appellant seeks costs, the Registrar will give directions as to the filing and service of written submissions on costs by the appellant and by Mr Scott.

Written grounds from the respondent Mr Michael Reid Scott