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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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| BETWEEN |
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HO CHEE SING JAMES |
Plaintiff |
and |
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SECRETARY FOR JUSTICE |
Defendant |
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| Before: Deputy High Court Judge Saunders in Chambers |
| Dates of Hearing: 23 and 24 June 2015 |
| Date of Decision: 22 July 2015 |
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D E C I S I O N
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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:
(a) breach of either an express term or an implied term of a contract of employment;
(b) breach of statutory duty;
(i) breach of a duty imposed by section 20(4) of the Prisons Ordinance, Cap 234, (“PO”), by the Commissioner in refusing to pay the withheld emolument;
(ii) breach of statutory duty under Article 10 of the Hong Kong Bill of Rights Ordinance (“BoRO”), Cap 383, (equality before courts and the right to fair and public hearing); and
(c) breach of constitutional rights, in particular breach of 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), and/or Article 10 of the Hong Kong BoRO.
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:
“Before I turn to the particular arguments I should say that whatever views may have been held earlier it is now well settled that the relationship between the Crown and its servants is one of simple contract. The comments of the Privy Council in Kodeeswaran v The Attorney-General of Ceylon [1970] AC 1111 have put this beyond doubt. But each contract is subject to the overriding power of the Crown to dismiss at will. It is a term implied by law, unless that term is expressly excluded.”
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:
“We conclude that there is an intention on both sides to enter a binding contract. The public officer does so without reservation. The Crown also intends to enter a contract by which the officer shall be bound but not itself, though the appointee is not warned of the lop-sided nature of the contract, as seen by the Crown. There is no hint that he must keep his promises, but that the Crown need not.
We decide that there is a contract between the Crown and its servants and that its terms should be, and are, mutually enforceable, even though this contract contains one anomalous provision (the power of dismissal at pleasure) which overrides the contract and, if used, effectively negates the usual relationship of employer and employee. The (Colonial Regulations) do not form part of that contract.”
And further at page 832:
“We have thus decided that there is a contract between the Crown and public officers, which is variable at the will of the Crown if the public officer’s initial terms of service indicate to him that such a power is reserved.”
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:
“An agreement, whether express or implied by law, whereby one person agrees to employ another and that other agrees to serve his employer as an employee whether payment is to be on a price, task or time basis and wherever the services are to be rendered;”
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:
“First of all, the claimant was employed by the Correctional Services Department, which is a department within the HKSAR Government. It is undisputed that the claimant was a civil servant. There was an employment relationship between the claimant as the employee and the HKSAR Government as the employer. There also exists a contractual relationship between them. In the case of Secretary for Justice v Lau Kwok Fai (2005) 8...
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