Chan Noi Heung and Others v. The Chief Executive in Council

FAMV No. 47 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 47 OF 2008 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 197 OF 2007)

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Between:

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D E T E R M I N A T I O N

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Chief Justice Li:

1.The background is fully set out in the judgment of Hartmann J and that of the Court of Appeal (Ma CJHC, Tang VP and Lam J).

2.Although the Government has recognized that cleaning workers and security guards receive low wages, the Chief Executive in Council (“the CE in Council”) has not invoked the machinery provided for by the Trade Boards Ordinance, Cap 63 (“the Ordinance”) to fix minimum wages for them.

3.Before Hartmann J, it was argued that the CE in Council should be compelled to exercise its power under the Ordinance to fix minimum wages for the two sectors in question.  Before the Court of Appeal, however, the challenge was made on a different footing.  It was argued that the CE in Council has refused to apply the statutory machinery in any circumstances, that is, effectively to renounce the existence of the Ordinance.  The challenge failed before Hartmann J and the Court of Appeal dismissed the appeal against his decision.

4.The applicant has sought leave to appeal on the basis that various points of law of great general or public importance are involved and also on the “or otherwise” basis.

5.Article 48(2) of the Basic Law provides that the CE shall be responsible for the implementation of the Basic Law and other laws which in accordance with the Basic Law apply in the HKSAR.  Article 64 provides that the HKSAR Government shall implement laws passed by the Legislative Council.  In accordance with these Articles, the CE and the HKSAR Government have a responsibility and duty respectively to implement the Ordinance.

6.As the Court of Appeal held, it would not be permissible for the CE in Council to refuse to apply the machinery provided by the Ordinance in any circumstances, that is, effectively to renounce its existence. After examining the facts, including the various statements made by the Government at various times and the CE’s letters to certain Legislative Council members on 11 October 2006, it held that the CE in Council has not so refused.  The Court of Appeal was plainly right in this conclusion. There is no reasonable argument to the contrary.

7.The crux of the matter is what implementation of the Ordinance would involve.  It is crucial to understand the nature and purpose of the Ordinance.  There is no doubt whatsoever that it provides and only provides for a machinery whereby minimum wages may be fixed by the CE in Council.  That being so, implementation of the Ordinance would only involve the CE in Council considering whether in its discretion to operate the statutory machinery.  Where the CE in Council considers the machinery in the Ordinance to be ineffective, it is plain that it may in its discretion consider using other machinery, including using non-statutory means or enacting a new statute.

8.On the facts, it is clear that this is the approach which the Government has adopted.  It rejected the use of the statutory machinery as ineffective for various reasons.  These include the low level of the fine and the provision reversing the onus of proof on the defendant employer on a prosecution which is considered to be of doubtful legal validity.  Instead, it adopted in October 2006 the non-statutory means of the voluntary Wage Protection Movement and at the same time pledged to introduce legislation if the Movement failed to yield satisfactory results.  In October 2008, the CE stated that, as the review showed the position to be unsatisfactory, it would proceed with legislation.

9.The materials do not disclose any reasonable grounds for leave to appeal.  Accordingly, the application is dismissed with costs.

Mr Hectar Pun and Mr Earl Deng (instructed by Messrs K.M. Cheung & Co) for the applicant

Mr Jat Sew Tong SC and Mr Alexander Stock (instructed by the Department of Justice) for the respondent