Ho Chee Sing James v. Secretary for Justice
Read the full judgment text of HCA 2161/2012 on BabelCite. This High Court CFI judgment was delivered on 22 July 2015.
1. On 23 August 1976, Mr Ho joined the Correctional Services Department (“CSD”, then known as the Prisons Department). By 5 January 2004, Mr Ho held the substantive rank of Chief Officer, and was, on that day, appointed to act in the rank of Superintendent, with an associated acting pay.
Cited by 9 cases · Cites 16 cases
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HCA 2161/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2161 OF 2012 _______________
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_______________ D E C I S I O N _______________ The factual background 1.On 23 August 1976, Mr Ho joined the Correctional Services Department (“CSD”, then known as the Prisons Department). By 5 January 2004, Mr Ho held the substantive rank of Chief Officer, and was, on that day, appointed to act in the rank of Superintendent, with an associated acting pay. 2.On 13 September 2006, Mr Ho sent an e‑mail to several senior officers of CSD expressing his views on a new policy of CSD. It appears that exception was taken to that action by senior officers of CSD. Mr Ho was summoned to an interview. Incidents occurred at that interview and at a subsequent meeting with his supervisor, the detail of which is irrelevant to the matters raised by the present application. The precise effect and circumstances of the events which followed are, I understand, in dispute, and will be a matter for trial. 3.What is not in dispute is that on 12 January 2007, by order of the Commissioner, Mr Ho was interdicted and it was ordered that 50% of his monthly salary be withheld, and his leave and increment entitlement be frozen with effect from 13 January 2007. On the order of interdiction, Mr Ho’s appointment as acting Superintendent and the acting pay ceased. From 4 February 2008, the portion of his monthly salary withheld was varied to 25%. 4.Following Mr Ho’s interdiction, disciplinary hearings began and continued through various stages until 12 April 2012. The precise steps that were taken, the consequences of those steps and the disputes in respect of those steps are not relevant at this stage, but will be at trial. 5.On 14 April 2012, Mr Ho reached his statutory retirement date, and retired from CSD. On 22 April 2012, Mr Ho demanded payment of the withheld emolument resulting from his interdiction. On 2 May 2012, the Commissioner of CSD refused the request for withheld emolument. 6.Seven months later, on 20 November 2012, Mr Ho issued these proceedings in which he seeks the withheld emolument and damages. The statement of claim pleads three causes of action. They are:
The application 7.At a Case Management Conference before the Master on 8 January 2015, the Master raised the issue as to whether or not any part of the claim fell within the exclusive jurisdiction of the Labour Tribunal, (“the Tribunal”), and ordered that the parties were to seek counsels’ advice on the point and make any application considered appropriate. 8.On 29 April 2015, following advice, the Secretary filed a summons pursuant to O 18 r 19, RHC, seeking to strike out the amended statement of claim (“the ASOC”) except in so far as the ASOC related to the claim for withheld emolument pursuant to section 20(4) of the PO, and a stay of the proceedings until the matter is resolved by the Tribunal. Ms Sara Tong, for the defendant, acknowledges that the claim under section 20(4) of the PO is a claim which may be properly brought in this court. A contract of employment 9.Mr Johannes Chan SC and Ms Margaret Ng, for the plaintiff, mounted an interesting argument, based upon the history of the British civil service to contend that Mr Ho was not engaged under a contract of employment. The point is significant, because contracts of employment fall within the jurisdiction under the Labour Tribunal Ordinance Cap 25, (“the LTO”). If Mr Ho’s engagement is not pursuant to a contract of employment, then arguably, the Tribunal will have no jurisdiction over a dispute arising from the engagement. 10.It may well be right that even today a British civil servant is not employed under a contract of employment, but the argument does not assist Mr Chan. It is well settled in Hong Kong that a Hong Kong civil servant is employed under a contract of employment. As long ago as 1976, in Choi Sum & Ors v Attorney General [1976] HKLR 609, at 612, Cons J (as he then was) said:
11.In the Court of Appeal in Lam Yuk Ming & Ors v Attorney General [1980] HKLR 815, Roberts CJ, for the court, after first tracing the historical background in respect of civil servants, said, at page 829:
And further at page 832:
12.In Secretary for Justice v Lau Kwok Fai & Anor (2005) 8 HKCFAR 304, the Court of Final Appeal was dealing with the power of the legislature to alter public officers’ contracts of service and reduce pay, after 1997. The court referred to both Lam Yuk Ming and Choi Sum, (see §45), impliedly upholding the proposition that the relationship between a civil servant and the HKSAR Government is one of a contract of employment. 13.It is right, as Mr Chan submits, that the contract of employment between a civil servant and, formerly the Crown, now the HKSAR Government, is a unique contract. The uniqueness arises from the right of the Government to dismiss the employee at pleasure. But in Hong Kong that fact does not take the terms of engagement of the employee outside the expression, “contract of employment” as defined in the LTO. A contract of employment is defined in section 2 of the LTO in the following terms:
14.There is nothing in that definition upon which it might be said that a contract of employment in which the employer has the right to dismiss the employee at pleasure should not fall within the definition. 15.I am satisfied that the contract of employment between Mr Ho and, initially, the Crown, as the Hong Kong government, and subsequently the HKSAR Government, is a contract of employment within that definition. Res Judicata 16.There is a second, and more compelling reason why the starting point is that a claim for money arising under Mr Ho’s contract of employment is subject to the jurisdiction of the Tribunal. Between 1 June and 27 September 2001, Mr Ho was required to perform the duties of his post in CSD as Principal Officer (Management) at the same time as acting Chief Officer (Operations). A dispute arose as to whether or not he was entitled to “doubling up” pay instead of “acting up” pay. The amount at issue was HK$51,426.36. 17.Mr Ho brought proceedings in the Tribunal, but on 20 July 2007, the presiding officer ordered that the proceedings be transferred to the District Court. Mr Ho appealed to this court against that order, and the matter was heard on 18 January 2008 by Chu J (as she then was), see Ho Chee Sing James v Secretary for Justice [2008] 1 HKCLRT 141. 18.At §9, the court held:
19.There can be no doubt that this decision meets all of the requirements of a res judicata estoppel. These are set out in Spencer Bower and Handley, 4th edn, §1.02 as comprising:
20.As will be seen in the next section, the scheme of the LTO is such that if a person claims a sum of money under a contract of employment, that person must commence their claim in the Tribunal, even if the claim incorporates claims beyond the jurisdiction of the Tribunal. It is for the presiding officer in the Tribunal to transfer the proceedings to either the District Court or the High Court, if there are claims beyond the jurisdiction of the Tribunal. The claim may not be commenced in the District Court or the High Court. 21.It is not open to Mr Ho to rely upon the exception from the principle of res judicata for special circumstances declared in Arnold v National Westminster Bank plc [1991] 2 AC 93, where Lord Keith said:
22.Spencer Bower and Handley says of Arnold, at §8.32:
The extent to which the rule is applied is demonstrated in Arnold, where Staughton LJ said:[1]
23.Mr Chan said that the principle of res judicata should not apply in respect of Mr Ho’s earlier case, because the issue was not argued as it was Mr Ho who asserted that he was employed under a contract of employment, a proposition with which the Secretary to Justice agreed. In that case, it was the presiding officer who had taken the step of transferring the case to the District Court. Mr Ho then wanted the case to be determined by the Labour Tribunal and appealed against the decision. 24.He cannot have it both ways. He cannot accept that he is employed under a contract of employment when it suits him to pursue his complaint in the Tribunal, but when it does not suit him to pursue his complaint there, argue that he is not employed under a contract of employment. 25.It is an abuse of process in the circumstances where the matter has been decided so clearly both at law and directly between the parties to the present litigation to allow the matter to be revisited. It is now beyond argument that Mr Ho, and any civil servant employed by the HKSAR government is employed on a contract of employment. 26.The arguments traversed by Mr Chan were well known as long ago as 1976. Nothing is new in the argument now mounted. The well-established line of authority was plainly the basis upon which both parties approached the Court of First Instance, in agreement that Mr Ho was engaged by a contract of employment. Notwithstanding that agreement, the Court undertook a proper review of the situation, no doubt out of deference to the presiding officer. Whether the HKSAR Government is bound by the LTO is beside the point. Not only is it well-established by authority that the relationship of the engagement of a civil servant by the HKSAR Government is that of a contract of employment, it has been established in respect of this particular civil servant that that is the case. Exclusive jurisdiction under the LTO 27.It is agreed between the parties, plainly correctly, that the effect of section 7(1) and (2) of the LTO is that the Tribunal will have exclusive jurisdiction to determine the claims as specified in the Schedule to the LTO. Those claims include a claim for a sum of money which arises from the breach of term, whether express or implied of a contract of employment for performance in Hong Kong. 28.The contract under which Mr Ho was employed, being a contract of employment within the scope of the LTO, the starting point must be that the Tribunal has exclusive jurisdiction in respect of a dispute involving a claim for a sum of money which arises from a breach of a term in relation to that contract. That exclusive jurisdiction arises from the following provisions. 29.The Tribunal’s jurisdiction is established by section 7 of the LTO:
30.The Tribunal has power to decline jurisdiction: see section 10 of the LTO:
The Schedule to the LTO provides:
The substance of the claim 31.The effect of these provisions was considered by Hunter J (as he then was) in Panalpina (Hong Kong) Ltd v Ulrich Haldeman [1983] HKLR 275, where at 276, the judge said:
32.It is not uncommon for a dissatisfied employee to wish to bring a complaint in the High Court rather than the Tribunal. Where such a claim is brought in the High Court or the District Court the court looks at the real substance of the claims and not the labels put on them in the pleadings. 33.In Kao Lee & Yip v Lau Wing & Anor (unreported, 7 March 2006, HCA 1845/2005), Burrell J said of the proceedings:
34.In Glock (HK) Ltd v Brauner [2007] 2 HKLRD 852, Saw J said:
35.In Wong Chi Ching v Bocom International Holdings Co Ltd (unreported, 23 April 2015, HCA 362/2014), the employee pleaded a claim of a breach of an implied term of the employment contract that the employer would not without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the parties, (called the “Contractual Trust and Confidence Claim”), and a breach of duty of care owed by the employer to the employee to exercise due care and skill to employ fit and proper persons, (called the “Breach of Duty Claim”). 36.The court found that these were straightforward breaches of a contract of employment, and that they were only “dressed up as tortious claims”. 37.In 4M GoldMec Jewellery Ltd v Fung Shun Yiu Nancy & Anor (unreported, 19 June 2006, DCCJ 5902/2005), the District Court held that causes of action based on conspiracy and causing a breach of contract were in fact simple breaches of the contract of employment which must go to the Tribunal. 38.In Ngan Yu Chiu v New World First Bus Services Ltd (unreported, 19 April 2010, DCCJ 824/2009), it was held that the employee’s only real claim was for damages for breach of a contract of employment. A claim for declaratory relief did not take the matter any further and did not take it outside the exclusive jurisdiction of the Tribunal. 39.In Estinah v Golden Hand Indonesian Employment Agency [2001] 4 HKC 607 the employee’s claim, brought in the Small Claims Tribunal arose from an alleged failure of the agency to comply with the provisions of section 57(a) of the Employment Ordinance, Cap 57 (“the EO”) which prohibited a licensed agent from receiving, in connection with obtaining employment for a person, any reward or any payment except the prescribed commission. The claim succeeded in the Small Claims Tribunal. The agency appealed on the ground that the claim was made under a contract of employment and accordingly was within the exclusive jurisdiction of the Labour Tribunal. 40.Kwan J (as she then was) held that the claim was based on a breach of statutory duty imposed by section 57(a) of the EO, and was accordingly excluded from the jurisdiction of the Tribunal as it was a cause of action in tort. The judge said, at paragraph 623F‑H:
41.In Gain Hill (Hong Kong) Ltd v Li Lin Yip [2006] 4 HKLRD 186, the case of the employer was that the employee had acted in breach of a duty of good-faith and fidelity by encouraging colleagues to leave and join a competitor. It was contended that he did these acts wrongfully and in breach of his contract employment, his duty as an employee and the obligation of confidentiality. An injunction to restrain the use of confidential information was sought, damages for breach of confidence, damages for breach of the employment contract, breach of the employee’s duties and exemplary damages were all sought. 42.The employee sought to rely on the exclusive jurisdiction of the Tribunal and applied for a stay of the action. The application was rejected, it being held that the claim for breach of confidence was found in both contract and tort, and so fell outside the jurisdiction of the Tribunal by virtue of paragraph 3 of the Schedule. 43.In Duetsche Bank AG (Hong Kong Branch) v Daniel Mamdou-Blanco [2012] 2 HKLRD 852, the employee sought to strike out the statement of claim because the claim was one within the exclusive jurisdiction of the Tribunal. DCHJ Lok held that the High Court did have jurisdiction over the employer’s claim because it was a claim for breach of confidence supported by facts which could be founded both in contract and tort. Consequently by operation of paragraph 3 of the Schedule to the LTO, the Tribunal had no jurisdiction. 44.In each of these three last cases the non‑monetary claims were found to be substantive claims and not mere window dressing. 45.It is abundantly clear therefore that where a claim is truly:
the claim is one that must begin in the Tribunal. However, where such a claim arises in the course of substantive claims based upon tort or other relief is claimed such as a declaration or an injunction, the claim may not only begin, but will continue, in the appropriate court, be it the Small Claims Tribunal, the District Court, or the High Court. Whether claims, other than a claim for sum of money are seen to be mere window dressing, the claim must begin in the Tribunal. The constitutionality of the exclusive jurisdiction provisions 46.Mr Chan argued that the exclusive jurisdiction clause of the Tribunal was inconsistent with Mr Ho’s right of access to the courts under Article 10 of the Hong Kong Bill of Rights, and Article 35 of the Basic Law. He said that the exclusive jurisdiction clause excludes the jurisdiction of all other courts over a claim arising from a contract of employment, irrespective of the complexity of the issues, irrespective of the amount claimed, and irrespective of any inequality of arms by excluding any legal representation to the employee, and yet allowing the government to be represented, albeit in the capacity of a public officer. 47.Mr Chan supported the submission with well-known authorities that any clause that restricts and limits the jurisdiction of the court has to satisfy the proportionality test: Charles Mok v Tam Wai Ho (2010) 13 HKCFAR 762, at §21‑30; Solicitors v Secretary for Justice (2003) 6 HKCFAR 570; Stock Exchange of Hong Kong Ltd v New World Development Co Ltd & Ors (2006) 9 HKCFAR 234. The proposition is undoubtedly correct. 48.It is abundantly plain that the purpose of the exclusive jurisdiction clause is to provide a quick, simple, cheap and informal means to resolve employment disputes between employers and employees. I accept that the LTO is not designed to deal with complex claims. 49.But the argument that Mr Ho’s rights of access to the courts is restricted must fail. 50.First, the Tribunal is plainly a court. It is established by section 3 of the LTO, which provides:
51.As a court of record, the proceedings of the Tribunal are preserved in its archives, called records, and are conclusive evidence of that which is recorded therein. Under section 42 a presiding officer may punish behaviour amounting to contempt summarily. The right to appeal in cases of contempt of court in section 50 of the High Court Ordinance is preserved. For the purposes of enforcing the payment of any fine imposed or giving effect to any sentence of imprisonment, a presiding officer shall have the powers of a judge: see section 45A of the LTO. These powers are all entirely consistent with the powers of a court of record. 52.It matters not that it is styled a “Tribunal”. Article 10 of the BoRO preserves the right of access to “courts and tribunals”. 53.Plainly, having regard to the terms of the legislation, any complex claim involving damages claims beyond a mere money dispute arising from the contract of employment will be removed by the presiding officer to the appropriate court. The starting point is a court. The finishing point is a court. They may not be the same, but the legislation ensures that the appropriate court will ultimately deal with the matter. 54.It cannot be said that this arrangement does not meet a test of proportionality, if the matter should get to the stage of requiring the test of proportionality. It is entirely right that a simple claim arising out of a contract of employment should go to the appropriate court to start and for that court to act as a filter to determine whether or not the claims are appropriate for a different venue. Such “filters” are entirely normal in our judicial system. It cannot be suggested that a filter such as the requirement to obtain leave to appeal, a common requirement, in any way restricts a citizen’s access to the courts. The “filter” requirement provided by section 7 and the Schedule to the LTO is a perfectly lawful procedure, designed to ensure that employment disputes are dealt with expeditiously. 55.Mr Chan said it was wrong to “compel the Tribunal to adjudicate cases that are clearly beyond its competence or design”. But the Tribunal is plainly not so compelled. When faced with a case that is beyond its competence or design the Tribunal will transfer that case to the appropriate court. If application is made by the dissatisfied employee for transfer, and transfer refused, rights of appeal or judicial review arise to protect his rights. 56.It would undoubtedly be better, and ought to be the case, particularly when the administration has known of the issue since the decision of Hunter J in 1983, that jurisdiction should be given to the High Court or the District Court to continue a case when the Judge thinks that the case ought to be in that venue. But the absence of that power is not sufficient to deprive or restrict the claimant of any access to the appropriate court. It is unfortunate that he may be required to go through, what he may consider to be a futile exercise in starting in the Tribunal and have to make application for transfer, with everybody knowing full well that transfer is inevitable. But he has not been deprived of access nor has his access to the courts been limited. 57.I reject the proposition that the exclusive jurisdiction provisions of the LTO are unconstitutional. A claim for “constitutional damages” 58.The damages claim upon which Mr Chan says that Mr Ho’s proceedings should be in this court is a claim for damages for the breach of Article 10 of the Bill of Rights, which provides:
The essence of the complaint in this respect is that the disciplinary tribunal established to consider the departmental charges against Mr Ho did not meet the requirements of Article 10 in a number of areas, which are duly pleaded. 59.The claim in this respect is pleaded in three alternative ways, the particulars of the pleadings being identical. First it is alleged that the breaches pleaded constituted a breach of an implied term of the contract of employment arising from Article 10. Second, it is pleaded that Article 10 establishes a statutory duty which has been breached. Third, it is pleaded that a fair hearing was denied in breach of Article 39 of the Basic Law and Article 14.1 of the International Covenant in all and Political Rights and/or Article 10. 60.First, Mr Ho does not advance his case by claiming a breach of an implied term of the contract of employment arising from Article 10. A breach of that implied term would not give rise to any separate general right to damages, the appropriate damages being contractual damages, that is, the monetary loss suffered. Were that the only claim upon which it is sought to pursue in the High Court, it would be nothing more than window dressing, and the claim would be sent to the Tribunal. 61.Article 39 of the Basic Law merely states that the provisions of the ICCPR as applied to Hong Kong shall remain in force. The relevant provision of the ICCPR is replicated in Article 10 of the Bill of Rights. So that takes the matter no further. The real question to be considered is whether Article 10 of the Bill of Rights gives right to a private law cause of action in tort. 62.The BoRO provides in section 6:
63.The effect of this provision is that if the court has an existing jurisdiction in respect of an event which constitutes, or within which there has been, a breach of an article of the BoRO, then a remedy may be given. A simple example arises in respect of a breach of Article 5(1), which is in the following terms:
A person wrongfully arrested or detained can point to this Article and say that his arrest is in breach of the Article. The existing jurisdiction (the “proceedings within its jurisdiction”) in the court to remedy that breach is an action for damages for false imprisonment. 64.The question as to whether a breach of the BoRO gave rise to a independent cause of action was considered by the Court of Appeal in Tsui Kin Kwok Johnnie v Commissioner of Police (unreported, 20 July 2011, CACV 38/2010), where an issue arose in respect of section 6, in the context of police disciplinary proceedings where no professional legal representation was permitted to a police officer charged with a disciplinary offence. The complaint was that a blanket restriction on professional legal representation in police disciplinary proceedings was incompatible with Article 10, and consequently the restriction was null and void. The challenge was based on Article 10, and consequently there is a direct comparison with the present case in which the challenge is also based upon Article 10. 65.The court dismissed the contention that the circumstances gave rise to an independent cause of action. The judgment of Stock JA is particularly instructive:
66.In the light of this decision, by which I am bound, it cannot be argued that section 6 of the BoRO by itself creates an independent cause of action. 67.Thus, if a person is aggrieved by what he believes to be a breach of an article in the Bill of Rights, unless he can point to an existing cause of action within which the court has power to grant remedies, relief or make orders, his only course is to bring a Bill of Rights action, which is by definition a public law action which applies only to the activities of the Government and public authorities, and is by way of judicial review. 68.Consequently, if there is to be a right constitutional damages in these proceedings, Mr Ho must demonstrate a right to an existing independent cause of action so as to give rise to rights under section 6 of the BoRO. Mr Chan argues that Article 10 gives rise to a statutory duty on the part of the Government such that a breach of Article 10 constitutes the tort of breach of statutory duty for which damages arise. Breach of statutory duty 69.The question as to whether or not a breach of a statutory obligation gave rise to a private cause of action arose in Hong Kong in Dah Sing Insurance Services Ltd v Gill Gurbux Singh [2014] 1 HKLRD 691where Kwan JA giving the judgment of the court said at §59:
70.In Dah Sing, the court found that Dah Sing, the insurer, had failed to report to the Insurance Agents Registration Board the termination of Mr Singh’s appointment as an insurance agent within seven days of the termination, contrary to the Code of Practice for the Administration of Insurance Agents. The code was established under section 67(1) Insurance Companies Ordinance (Cap 41) (“ICO”). By section 77(10), ICO an insurer who failed to comply with the Code committed an offence and was liable to a fine of HK$100,000. So the insurer had a statutory duty to comply with the code. 71.The question was whether a breach of that statutory duty gave rise to a private law cause of action in someone who was affected by that breach. The Court of Appeal found that there was no private law cause of action. 72.Ms Tong referred me to a number of other authorities. In Morrison Sports Ltd v Scottish Power UK plc [2010] 1 WLR 1934, the United Kingdom Supreme Court held that the court should consider whether it is difficult to identify any limited class of the public for whose protection the statute in question was enacted and on whom the legislature intended to confer a private right of action for breach of the statute. If such difficulty arises, this in itself reinforces the conclusion that no private cause of action arises. At §38, Lord Roger of Earlsferry JSC, giving the judgment of the court said:
73.The fact that a particular statutory provision is intended to protect certain individuals is not of itself sufficient to confer a private law right of action upon them. In R v Deputy Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58 HK, Lord Jauncey said:
74.In X (Minors), at 731H‑732B, Lord Browne-Wilkinson said:
75.Article 1 of the Bill of Rights makes it clear that the provisions in the Bill of Rights are for the benefit of the general public without distinction. That Article provides:
76.In my view there can be no plainer that statement that the Legislature intended that the duties imposed by the Bill of Rights are imposed for the protection of the citizens of Hong Kong at large and not for any limited class of the public. By section 6 of the BoRO the legislation has made it clear that a person may take a Bill of Rights point in any court so long as it is taken in proceedings within [that court’s] jurisdiction: see Tsui Kin Kwok Johnnie, §65 above. 77.An appropriate remedy has been provided for a breach of Article 10. The point may be taken before whatever court or tribunal is faced by the citizen who considers that that court or tribunal is in breach of his rights under Article 10: see section 6 of the BoRO. 78.If that court or tribunal does not respond to the citizen’s satisfaction when a complaint is made, the citizen has a right to judicial review which must be sought within the appropriate time. The provisions of section 6 BoRO are accordingly met in respect of Article 10. In respect of most court or tribunals the appropriate course will be an appeal in which the Article 10 point may be taken. In the LTO, Part 6, sections 31‑37, provision is made for both review by the presiding officer, and appeal, where an Article 10 point may be taken. 79.It is worth repeating the words of Lord Browne-Wilkinson in X (Minors), at 731 E‑F:
80.The BoRO provides a remedy for its breach in section 6, and the words of Article 1 make it clear that it is not the Legislative intention to protect a limited class but to protect the citizens of Hong Kong at large. Applying Lord Browne-Wilkinson’s test, I am satisfied that a breach of BoRO does not give rise to a private law cause of action. 81.There is no need for a separate right to damages for the breach of Article 10. If the article is breached and the individual has not had a fair hearing, judicial review will remit the matter to the court or tribunal with instructions as to how a fair hearing would be conducted. Alternatively on appeal, an appeal court may award whatever sums might be due to the citizen should he not have been given a fair hearing. In the present case that cannot exceed the money sums sought by Mr Ho. 82.It is significant that when the bill which ultimately resulted in BoRO went before the legislature section 6 provided that a violation of the Bill of Rights in relation to any person was actionable as a tort. This provision was subsequently removed from the bill. 83.The Legislative Council Brief with the revised bill, containing section 6 as it now is, contained the following:
84.This is a strong indication that it was not intended that there should be a general right of damages for a breach of the Bill of Rights. Under the original draft, such a right would have arisen as any breach would have constituted a tort, a private law cause of action which gives rise, in the normal course of events, to damages. That right was removed and replaced with a provision by which a person aggrieved by what he considers to be a breach of the Bill of Rights may seek his remedy in the existing law. As I have demonstrated, he will often do so by way of judicial review. There will be occasions when he may be able to have resort to remedies in the law of torts such as false imprisonment or malicious prosecution. 85.The removal of a specific right to a claim in tort strongly underlines the Legislative intention that, other than within the existing law, there should be no specific right to damages for breach of the Bill of Rights. 86.For these reasons, I am accordingly satisfied that Article 10 of the Bill of Rights does not give rise to a private law cause of action. 87.Articles 35 and 39 of the Basic Law, (Article 35, Right of Access to Courts; Article 39, protection of the International Covenant on Civil and Political Rights), do not assist Mr Ho any further. The rights established in the Basic Law, a constitutional document, are given legislative effect through the provisions of Article 10 of the BoRO. The Prisons Ordinance claim: 88.The Prisons Ordinance provides in section 20C(4):
89.The apparent purpose of section 20C(4) is to allow the employee to recover his full emoluments in circumstances where, although his behaviour might have resulted in a conviction of a disciplinary offence, the circumstances were such that no penalty was imposed. 90.Although Ms Tong correctly conceded that this was a claim which might properly be brought in this court, it is also plain that such a claim is no more than “a claim for some of money, whether liquidated or unliquidated, which arises from a breach of a term of a contract of employment”. The term breached is an implied term that the employee should not be wrongly interdicted, or an implied term that even if wrongdoing is found, the fact that no penalty is imposed, means that no pay should be lost. 91.In such circumstances, irrespective of the existence of section 20C(4), the employee would be entitled to go to the Tribunal claim his lost emoluments. Consequently, to bring a claim for lost emoluments in this Court under section 20C(4), is mere window dressing. The abuse of power claim 92.Ms Tong said during the hearing that §16 of the ASOC, although one of the paragraphs originally sought to be struck out, could stay. When originally pleaded, the clause began:
93.With the filing of the ASOC, the word “malicious” was deleted. By including the word “malicious” in the original pleading, I understand the paragraph to constitute an allegation of the tort of malicious prosecution, with appropriate particulars. 94.An essential element of such a claim is that the defendant was actuated by malice, i.e., that he instituted proceedings out of spite, or some indirect were improper motive: see Hicks v Faulkner [1882] 8 QBD 167 at 174. If the defendant establishes that he honestly believed in the charge which he made, some distinct evidence of malice is required to prove that he acted maliciously: Brown v Hawkes [1891] 2 QB 718. 95.The deletion of the word “malicious” consequently takes the plea and the particulars contained in §16 out of the category of an allegation of the tort of malicious prosecution. The particulars pleaded then merely become particulars upon which Mr Ho relies upon to support the claim of breach of contract, breach of statutory duty, and breach of constitutional rights, arising from the particularised breaches, which, as I understand it, are contended to be breaches of Article 10 of the BoRO. 96.As I have found that there is no separate private law right in respect of a breach of Article 10, it follows that the particulars pleaded are merely factual circumstances of that Mr Ho wishes to rise in support of his claim for lost emoluments. 97.Had Mr Ho the word “malicious” been retained in paragraph 16, there would be a basis to say that the tortious claim for malicious prosecution was not mere window dressing, but a separate and substantive claim in its own right. It is certainly a claim which gives rise to a separate right of damages beyond the emoluments he has lost. In McGregor on Damages, 18th edn, §38‑004, the nature of the damages awarded for malicious prosecution are described in this way:
98.No doubt there were sound and sensible reasons for the decision not to pursue the tort of malicious prosecution. The burden of proving malice is not an easy one. Disposal 99.For the foregoing reasons I am satisfied that the ASOC filed on 9 January 2015, (save and except paragraphs 1 ‑ 2, 14, 17 ‑ 18, 21, 25, 27 ‑ 29, 33(a)(1A), 33(a)(1), 33(b)(1) and 36 thereof in so far as they relate to and/or are relevant to the plaintiff’s claim for withheld emolument under section 20C(4) of the PO, be struck out on the grounds that the claims therein do not disclose a reasonable cause of action. 100.Having held that the claim under section 20C(4) is mere window dressing, there must be an order that the action be stayed until the issues raised by the ASOC are determined either by the Labour Tribunal, or in the event of transfer back, until that transfer, when the claim will proceed in the High Court. 101.Leave is reserved to apply. Costs 102.There will be an order nisi that the costs of the action and the costs of this application each of the defendant in any event. If necessary, Mr Ho’s costs are to be taxed on Legal Aid Regulations.
Mr Johannes Chan SC, leading Ms Margaret Ng, instructed by Fung Wong Ng & Lam, assigned by Director of Legal Aid for the plaintiff Ms Sara Tong, instructed by Department of Justice, for the defendant | |||||||||||||||||||||
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