Association Of Expatriate Civil Servants Of Hong Kong v Secretary For The Civil Service And Another

Cited as:[1998] 1 HKLRD 701
Court:Court of Final Appeal (Hong Kong)
Judgement Number:FAMV4/1998
Judgment Date:31 Mar 1998
FAMV000004/1998 ASSOCIATION OF EXPATRIATE CIVIL SERVANTS OF HONG KONG v. SECRETARY FOR THE CIVIL SERVICE AND ANOTHER

FAMV No. 4 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4 OF 1998 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 260 OF 1995)

_____________________

Between:
ASSOCIATION OF EXPATRIATE CIVIL SERVANTS OF HONG KONG Applicant
AND
SECRETARY FOR THE CIVIL SERVICE 1st Respondent
SECRETARY FOR JUSTICE 2nd Respondent

_____________________

Appeal Committee: Chief Justice Li, Mr Justice Litton, PJ and Mr Justice Bokhary, PJ

Date of Hearing: 31 March 1998

Date of Determination: 31 March 1998

_________________________

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

_________________________

Mr Justice Bokhary, PJ:

1. This is the determination of the Appeal Committee in this application for leave to appeal to the Court of Final Appeal.

2. The judgment from which the applicant wishes to appeal is interlocutory. And the applicant seeks leave to appeal upon its contention that the proposed final appeal would involve questions of law which, by reason of their great general or public importance, ought to be submitted to the Court of Final Appeal for decision.

3. For some time now the applicant association has been pursuing in the courts relief by way of judicial review of a number of steps taken by the Government pursuant to its policy for the localisation of the Civil Service. The applicant's efforts have met with considerable, although by no means total, success. It now seeks leave to appeal to the Court of Final Appeal from a judgment of the Court of Appeal given on 28 November 1997 dismissing with costs two notices of motion which it had taken out before that Court.

4. One of those notices of motion was taken out on 31 October 1997. It asked the Court of Appeal to recall a part of the judgment which it had given on 22 November 1996 in an appeal from a judgment of Keith J given on 31 October 1995. That part of the Court of Appeal's judgment upheld the judge's refusal to declare unlawful the administrative decision introducing a scheme called "the Opening-up Scheme", about which we will say a word of explanation in a moment.

5. The second of those two notices of motion was taken out on 27 November 1997. It sought leave to adduce fresh evidence in support of the first notice of motion.

6. After the Court of Appeal had on 28 November 1997 dismissed both of those notices of motion, the applicant asked that Court for leave to appeal to the Court of Final Appeal against such dismissal. The Court of Appeal refused such leave on 13 January 1998, doing so with costs against the applicant.

7. And now the applicant is before this Committee seeking such leave at our hands.

8. The Opening-up Scheme was brought about by a decision made on 19 December 1994 by the then Secretary for the Civil Service. That decision concerned civil servants on agreement terms as opposed to permanent and pensionable terms. Let us call them "agreement officers". The effect of the decision was as follows. When any agreement officer (whether on overseas terms or on local terms) whose agreement expires on or after 1 September 1995 seeks an extension, his position would be "opened up for competition". And he "should leave the service upon the expiry of his current agreement" if he loses such competition.

9. In the proceedings before Keith J in the autumn of 1995, the applicant asked the judge to declare that...

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