Leung Ka Lau and Others v. The Hospital Authority

CACV 57/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 57 OF 2007

(ON APPEAL FROM HCA NO. 1924 OF 2002)

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Before: Hon Le Pichon, Yeung and Yuen JJA in Court

Date of Hearing: 25 September 2008

Date of Judgment: 25 September 2008

Date of Handing Down Reasons for Judgment: 30 September 2008 

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.These were applications by the Lead Plaintiffs and by the Hospital Authority for leave to appeal to the Court of Final Appeal from an order of this court dated 21 January 2008 pursuant to section 22(1)(b) of the Court of Final Appeal Ordinance.  At the conclusion of the hearing leave to appeal was granted on the basis that questions of great general or public importance (set out below) arise on both applications which ought to be submitted to the Court of Final Appeal for decision without requiring security to be provided by either party.

2.The appeal to this court concerned a longstanding dispute between the parties relating to the conditions of service of public hospital doctors.  A number of them represented by the Lead Plaintiffs brought these proceedings against their employer, the Hospital Authority.  The issues relate to (1) statutory rights in relation to rest days and holidays under the Employment Ordinance, Cap. 57; (2) contractual rights in respect of overtime worked; and (3) the appropriate remedies in the event of breach.

3.On the Lead Plaintiffs’ application, the questions of great general or public importance as reformulated in the course of the hearing are:

“ a)   Whether public doctors employed by the Hospital Authority in public hospitals as represented by each of the Lead Plaintiffs are entitled, as a matter of contract, to receive time-off for the overtime worked as required by the Hospital Authority beyond the contractual conditioned hours of 44 hours a week or monetary compensation as an alternative.

b)   What is the appropriate remedy upon the failure of the Hospital Authority to grant its doctors rest days and holidays under the provisions of the Employment Ordinance Cap. 57.”

4.On the Hospital Authority’s application, those questions set out in paragraph 3 of its notice of motion are:

“ a)   Whether a doctor rostered by his employer on non-resident call on a statutory orpublic holiday but who is not in fact required to work on that day (i.e. he does not in fact treat any patient on that day) is nevertheless to be regarded as having been deprived of that statutory/public holiday by his employer.

b)   Whether a doctor rostered by his employer on non-resident call on an appointed rest day who does respond to a telephone call for advice on how to treat a patient is thereby entitled to compensation from the employer in the form of a full day-off or damages assessed by reference to a full day by reason of either (a) not having been granted a rest day under Section 17 of the Employment Ordinance (Cap. 57) or (b) having been required to work on a rest day contrary to Section 19 of the Employment Ordinance (Cap. 57), or whether damages are instead to be assessed by reference to the amount of time he actually worked on that rest day.

c)   Whether a doctor rostered by his employer on non-resident call on a statutory or public holiday who does respond to a telephone call for advice on how to treat a patient is thereby entitled to compensation from the employer for breach of Section 39 of the Employment Ordinance (Cap. 57) in the form of a full day off or damages assessed by reference to a full day, or whether damages are instead to be assessed by reference to the amount of time he actually worked on that day.

d)   Whether in computing damages for breach of Section 17 or Section 19 or Section 39 of the Employment Ordinance (Cap. 57) credit should be given by a Plaintiff to the Defendant for all time off or other administrative relief that the Defendant may have given to the Plaintiff.”

5.That the questions posed are questions of great general or public importance is self-evident and it is clearly in the public interest that the highly controversial issues between the public hospital doctors and the Hospital Authority be finally resolved.

Hon Yeung JA:

6.I agree.

Hon Yuen JA:

7.I agree.

Mr Denis Chang SC & Mr Tim Kwok, instructed by Messrs LCP, for the 1^st, 77^th and 91^st Plaintiffs (“lead Plaintiffs”)

Mr Adrian Huggins SC & Mr Godfrey Lam SC, instructed by Messrs JSM, for the Defendant