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)
|ASSOCIATION OF EXPATRIATE CIVIL SERVANTS OF HONG KONG
|SECRETARY FOR THE CIVIL SERVICE
|SECRETARY FOR JUSTICE
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 the decision to introduce the Opening-up Scheme was unlawful.
10. The applicant contended that the scheme was a pretext. Its true aim, the applicant alleged, was to ease expatriates out of the Civil Service irrespective of merit. In answer, the 1st respondent filed affidavit evidence from Mr CIC Jackson, the Deputy Secretary for the Civil Service. Mr Jackson said that the Opening-up Scheme "is based on a set of objective criteria applicable to all officers who enter the competition". The scheme, Mr Jackson continued, "ensures a greater emphasis on objectively tested merit". And its aim, he said, "is to select the best person for the job."
11. The applicant did not accept that. Its argument before Keith J in regard to the Opening-up Scheme as a whole was, as the judge summarised that argument, as follows:
"...this justification for the introduction of the scheme is a pretext. The true reason for the introduction of the scheme was to make those overseas officers on agreement terms who transfer to terms modelled on local conditions of service more vulnerable to replacement by local officers. The device used to achieve that end was a subtle but effective one. The long-standing prohibition on overseas officers on agreement terms applying to transfer to the permanent establishment was to apply to those overseas officers on agreement terms who had transferred to terms modelled on local conditions of service. Local officers on agreement terms could avoid the opening-up of their posts to competition simply by applying to join the permanent establishment, whereas that escape route was not available to overseas officers on agreement terms who had transferred to terms modelled on local conditions of service."
But no application was made to the judge for cross-examination of Mr Jackson on anything he had said on affidavit.
12. In those circumstances, Keith J refused to brand the whole of the scheme as a pretext and condemn it root and branch. He chose instead to look at various features of the scheme's implementation as embodied in other decisions and to consider whether those decisions were lawful or unlawful.
13. Before Keith J the applicant succeeded in regard to some of those...