Ipsofactoj.com: International Cases [2004] Part 10 Case 8 [HCHK]


HIGH COURT OF HONG KONG SAR

Coram

Cheng

- vs -

Secretary for Justice

MR JUSTICE HARTMANN

9 FEBRUARY 2004


Judgment

Mr. Justice Hartmann

INTRODUCTION

  1. In this action, a total of 3,624 serving or formerly serving officers of the Correctional Services Department ('the CSD') have sued their employer, the Hong Kong Government, for damages for breach of contract. The plaintiffs claim that since 1 June 1985, in breach of their contracts of employment, they have been denied the recompense due to them for their performance - away from their homes and outside of their regular or 'conditioned hours' of work of a form of duty that attracts an overtime allowance. The duty is peculiar to the CSD and is known within the Department as 'overnight on call duty' or simply 'overnight on call'. For convenience, I shall use the latter name.

  2. At the commencement of trial, 3,072 of the plaintiffs were serving officers. The remaining 552 had retired, resigned or transferred out of the CSD. The 11 plaintiffs whose names have been cited in the title to this action the 'lead plaintiffs', as they have been called differ in their ages and ranks and in the institutions in which they have served. That diversity, in so far as it is possible, has attempted to reflect the various categories of plaintiffs who have brought this action.

  3. Although, when the trial of this matter commenced, it was not fully clear to me whether the plaintiffs contended that 'overnight on call' should be compensated as overtime work or as a particular form of duty known as 'stand-by' which is compensated by means of a form of reduced overtime allowance, during the course of the trial the issue was put beyond doubt. It then became the plaintiffs' case that their performance of 'overnight on call' was in substance, in terms of their contracts of employment, performance of 'stand-by'. If they are correct in this assertion, it follows that they have performed a duty which is not what has been described by the defence as an 'inherent requirement' of their jobs as members of the CSD but is instead an additional duty, one that should have entitled them either to a form of overtime allowance or, if ineligible by reason of seniority of rank, to time off in lieu. It is through this action that they seek recompense in damages.

  4. At the outset, it must be recognised that the CSD is a disciplined service. As such, it is subject to operational constraints that do not burden the civilian arms of Government. This has long been recognised by those bodies which play interlocking roles in determining public service pay. By way of illustration, the Standing Commission on Civil Service Salaries and Conditions of Service made the following observation in a 1979 report (report no.2, chapter 6):

    The disciplined services occupy a special place within the civil service, in our opinion justifiably so. While their duties and responsibilities vary widely they all have an important role to play in the security, safety and well-being of Hong Kong and its people. They are subject to strict disciplinary codes and their work can be dangerous, distasteful and unpopular. Other civil servants claim that their work is dangerous, distasteful and unpopular and that they are of equal value to the community. We consider, however, that the extent to which the disciplined services are subject to these conditions is of a sufficiently greater degree to warrant their forming a separate group within the civil service and we propose to treat them as such in this review.

    [my emphasis]

  5. While certain civilians are employed in the CSD, the great body of its members are disciplined staff. This includes all the plaintiffs. Disciplined staff in the CSD serve within a hierarchy of ranks from Commissioner down to Assistant Officer. Disciplined staff within the CSD are divided essentially into two streams: the custodial stream, which comprises more than 90% of the service, and the industries stream. Officers within the custodial stream are responsible for the safekeeping of prisoners. All of the plaintiffs in this case are, or have been, members of the custodial stream. It is only staff within this stream who are required to perform 'overnight on call'.

  6. Fundamental to this case is the fact that the plaintiffs' contracts of employment have at all material times been subject to Government Regulations of various kinds. These include what are called the Civil Service Regulations ('the CSRs'). The CSRs are administrative regulations which, as they may be amended from time to time, regulate much of the business of government. In this regard, CSR 1 reads:

    Government Regulations regulate matters relating to the conduct of Government business, the terms of appointment and conditions of service for Government servants, financial business and accounting operations, the management and procurement of Government stores and services, the security of Government records, and other miscellaneous matters. They do not provide for necessary and self-evident exceptions.

    [my emphasis]

  7. Except where specifically provided otherwise, the CSRs are intended to be of general application. CSR 3 commences: 'Government Regulations apply to all Government servants ....' But civil servants, of course, are employed to perform an almost infinite variety of duties. By way of illustration, the duties of a medical doctor attached to a public hospital will be subject to very different imperatives from those of a CSD officer in the custodial stream. The inherent requirements of their jobs will in many respects stand in contrast to each other. Yet both officers will be subject to the general application of the CSRs. To ensure that, where necessary, relevant particularity is achieved, CSR 5 provides that -

    Government Regulations may be supplemented by Circulars and Circular Memoranda and the instructions contained therein are of equal application and force to the Regulations.

    [my emphasis]

  8. It is in no way disputed that at the time of their appointment, all the plaintiffs agreed that their terms and conditions of employment would be governed by Government Regulations in force from time to time. In short, Government Regulations, including the CSRs, were incorporated into their contracts. In Lam Yuk-Ming v Attorney General [1980] HKLR 815, at 830, the Court of Appeal, in considering similar letters of appointment, held that:

    The Crown, by the form of the contract which it offers to its employees, has chosen to incorporate all GRs [Government Regulations] into the contract of service. And this is what we find the true position to be.

  9. To illustrate the position - although I reiterate that it is in no way contested - the letter of appointment of the first lead plaintiff, dated 18 October 1979, said the following:

    You will be subject to the provisions of the Prisons Ordinance (Chapter 234, Laws of Hong Kong), Prisons Department Standing Orders, the Colonial Regulations, the Regulations of the Hong Kong Government and Departmental instructions in force from time to time. You will be required to wear uniform and to perform shift duties which may include Sundays and public holidays.

    An earlier letter of appointment dated 27 May 1974, that given to the fourth lead plaintiff, was to the following effect:

    You will be subjected to discipline under the Prisons Ordinance (Chapter 234, Laws of Hong Kong), and be required to conform to the Regulations of the Hong Kong Government and Departmental instructions in force from time to time.

  10. It is the CSRs which speak of 'stand-by'. CSR 668 (later changed to 665 without a change of wording) came into effect on 1 June 1985, the date from which the plaintiffs now seek their damages. CSR 668 does not define 'stand-by' as such but rather refers to it within the context of eligibility for payment of an overtime allowance. It reads:

    An eligible officer who is required to stand-by at his place of work beyond his conditioned hours may be paid an overtime allowance, but at a reduced rate. An officer provided with quarters at or near his place of work is not eligible under this regulation.

  11. From 1 June 1985, the CSRs for the first time provided a definition of 'overtime'. In this regard, CSR 665 reads:

    Overtime is work undertaken over and beyond an officer's conditioned hours, regardless of the day or time of day on or at which it is undertaken.

    [my emphasis]

  12. 'Conditioned hours' have at all times material to this action been defined in the CSRs as -

    .... hours of duty which salary is calculated to cover and, for staff eligible for overtime allowance, the hours which must be worked before overtime is payable; conditioned hours may be expressed as gross (i.e. including lunch breaks) or net (i.e. excluding lunch breaks).

  13. In my judgment, it is pertinent to note that CSR 668 does not say that the performance of 'stand-by' shall constitute overtime, overtime itself being 'work' undertaken over and above an officer's conditioned hours. The CSR says instead that 'stand-by' will attract an 'overtime allowance, but at a reduced rate'; in short, that it will be compensated as if it was a form of overtime. 'Stand-by' duty therefore, while it may not constitute 'work', will be compensated as if it does. In this regard, I note that the predecessor to CSR 668 CSR 681 - states that an officer performing 'stand-by' duty at his place of work is not 'necessarily required to perform any work'.

  14. It is the plaintiffs' case that in performing 'overnight on call' they have had to 'stand-by' at their places of work beyond their conditioned hours and accordingly, in terms of CSR 668, are entitled to be paid a reduced overtime allowance or, if ineligible by reason of rank, to time off in lieu.

  15. The plaintiffs accept that during their performance of 'overnight on call' they have not been called upon to carry out specific tasks but, in so far as it may be necessary to demonstrate that, to earn an overtime allowance they have engaged in 'work', they say that they have worked. The nature of that work, said Mr. McCoy SC, leading counsel for the plaintiffs, is best described by Findlay J in the case of Shau Lin Chi v Secretary for Justice [1998] 4 HKC 562 in which he said (at 566G):

    In simple terms, 'work' is doing what your master tells you to do. If your master tells you to undertake a specific task, that is work. If your master tells you to wait until the need arises to perform a specific task, that is also work. Work is not, in the context, only dealing with rioting detainees, pursuing an escaped inmate or some other active duty. If this were so, I venture to suggest that most officers in the Correctional Services Department do very little 'work'. Their 'work' in the institutions is providing a presence; a 'warm body'; being there and being ready to deal with the situations that arise.

    [my emphasis]

  16. At this juncture I record that, in respect of liability, the plaintiffs' claims very much arise out of and are defined by the jurisprudence contained in Findlay J's first instance judgment in Shau Lin Chi and, to a much lesser degree, in the Court of Appeal judgment given in the same case: Shau Lin Chi v Secretary for Justice [1999] 2 HKC 585. Indeed, Mr. Tabachnik QC, leading counsel for the defendant, commented that "it has been suggested by the plaintiffs that, on the basis of this case [the Shau Lin Chi case], there is no triable issue between the parties". It is, of course, the defendant's case that there is very much a triable issue. While the ratio of the Appeal Court judgment, which concerns a single, discrete point, is in all respects accepted, it is the defendant's case that Findlay J's judgment - decided within the context of a very different factual matrix to which I will refer later - is in a number of respects flawed and should not be followed.

  17. I turn now to an outline of the defendant's case. At the outset, to avoid ambiguity, it should be recorded that the defendant accepts that the performance of 'overnight on call' by the plaintiffs has fallen outside of their regular or 'conditioned hours' of work. The issue is whether the performance of that duty should attract any form of overtime allowance or not. It is the defendant's case that, in performing 'overnight on call' the plaintiffs have never performed an additional duty, one that, in terms of their contracts of employment, should have entitled them to a form of overtime allowance. To the contrary, performance of 'overnight on call' has at all times constituted an inherent requirement of their jobs and hours spent in performance of the duty have been hours which their salaries (as they have been assessed from time to time) have been calculated to cover.

  18. To qualify for an overtime allowance in terms of CSR 668, the plaintiffs must demonstrate that they have been required to 'stand-by' at their 'place of work'. It is the defendant's case that the plaintiffs have never been required to perform 'overnight on call' at their 'place of work'.

  19. It is further the defendant's case that, in so far as 'work' may be a prerequisite of 'stand-by', the plaintiffs have never been required to carry out any 'work' in their performance of 'overnight on call'. It is the defendant's case that, while in a very general sense Findlay J's description of 'work' in the Shau Lin Chi judgment may be unobjectionable, within the context of the CSRs it is however flawed. In performing 'overnight on call' the plaintiffs have never had to work because they have been free to do what they wish - to sleep, eat, drink, socialise, play sport and dress as they wish - subject only to the condition that they should make themselves 'continuously and immediately available' to undertake work if called upon to do so. They have therefore been obliged solely to make themselves available to work.

  20. It is accepted that, in order to make themselves 'continuously and immediately available' to work, the plaintiffs have been required to remain in what is called 'the immediate vicinity' of the penal institutions to which they have been posted. But it is the defendant's case that such immediate vicinities have at all times been residential and recreational in character and have not in any way constituted the plaintiffs' places of work.

  21. It is accordingly the defendant's case that, just as the name implies, 'overnight on call' has at all times constituted the performance of an 'on call' duty. That duty is spoken of in CSR 669 (later changed to 674 without a change in wording) in the following terms:

    Any period beyond an officer's conditioned hours where the officer is required to be on call either at home or in another fixed location or through the medium of a paging device, so that he is continuously and immediately available to report for duty if required, is not regarded as overtime ....

  22. On behalf of the defendant, it has been submitted that, on a true reading of CSR 669, a public officer performing 'on call' duty may be required by his superior -

    (a)

    to be 'on call either at home or in another fixed location [which cannot be the place of work itself] or through the medium of a paging device' so that he

    (b)

    will be 'continuously and immediately available to report for duty if required.

    It is said on behalf of the defendant that the performance of 'overnight on call' fits the criteria contained within CSR 669 and has at all material times therefore been correctly construed as an 'on call' duty and not 'stand-by'.

  23. As to the name of the duty - 'overnight on call' - the plaintiffs have contended that both the duty and its name are a creation of the CSD and nothing can therefore be drawn from the name itself. That assertion has never been contested. The CSRs make no reference to any such duty. The duty arose out of the operational responsibilities of the CSD. Nothing therefore turns on the description given to the duty. It is its true nature within the context of the plaintiffs' contracts of employment that must be considered. As it is said: 'a rose by any other name ....'

  24. At this early juncture, it is to be stressed that, unless otherwise stated, I have employed the word 'duty' in this judgment in its broad sense as meaning simply the performance of an obligation required by one's occupation.

  25. In respect of liability, the first core issue may therefore, be expressed in the following question: 'Have the plaintiffs shown on a balance of probabilities that, in terms of their contracts of employment, their performance of 'overnight on call' has constituted the performance of a particular type of duty known as 'stand-by' duty which attracts a form of overtime allowance?'

  26. I have spoken of that question as encapsulating, the 'first' core issue. I have done so because, in respect of liability, there are two core issues that fall for determination. The second is an issue of limitation.

  27. Section 4(1)(a) of the Limitation Ordinance, Cap.347, states that an action founded on 'simple contract' shall not be brought after the expiration of six years from the date on which the cause of action accrued. However, in their claims as originally pleaded, many of the plaintiffs sought recompense for their performance of 'overnight on call' outside of the constraint imposed by s.4(1)(a). By way of illustration, the 11th lead plaintiff originally claimed recompense for his performance of 'overnight on call' as far back as January 1961, some 38 years prior to the issue of the writ.

  28. During the course of the trial - indeed, well into it - leave was granted to amend the plaintiffs' pleadings so that, as I have said earlier, the plaintiffs' claims commenced only from 1 June 1985. That date, however, still falls outside of the six year restraint. The writ having been issued on 27 October 1999, the date six years before that occurrence is 27 October 1993.

  29. It is the defendant's case that any claim for damages which falls prior to 27 October 1993 is timed-barred by virtue of s.4(1)(a).

  30. As I understand it, it is the plaintiffs case that at all material times, certainly from 1 June 1985, the Directorate of CSD knew that it was breaching the contracts of the plaintiffs by withholding recompense for performance of 'overnight on call' and that it was thereby culpable of a deliberate breach of duty in circumstances in which that breach was unlikely to be discovered for some time. It is contended that this amounted to a deliberate concealment of the plaintiffs' rights of action and, in terms of s.26(1) of the Ordinance, has extended the limitation period to include all claims going back to 1 June 1985.

  31. As a determination of the limitation issue would not have fully determined the plaintiffs' claims, it was not argued before me as a preliminary issue. As for myself, I shall look to that issue only after I have considered what I shall call the 'contractual issue'; that is, the issue of whether 'overnight on call' has been shown by the plaintiffs to constitute that form of overtime work known as 'stand-by' duty.

    'OVERNIGHT ON CALL'

  32. The nature of 'overnight on call' is central to this case. The core question is simply stated: 'has it constituted, as the plaintiffs must show, a form of 'stand-by', which attracts a form of overtime allowance or time off in lieu, or has it constituted, as the defendant contends, a form of 'on call' which, being an integral requirement of the job, attracts no form of overtime allowance?

  33. No direct counterpart of 'overnight on call' in any other part of the public service has been identified for me. As I comprehend it, the duty, peculiar to the responsibilities of the CSD, has arisen out of the following set of long-standing imperatives. At night, with a materially reduced number of CSD officers on duty within a prison or detention centre - sometimes a reduction of 75% - there has always been the operational need to ensure that there is a reserve of officers staying close by in order, if necessary, to reinforce those who are on duty within the institution. Successful escapes, attempts to escape, large scale fights, hostage taking, suicides or attempted suicides: all of these, within the physical and emotional confines of a penal institution, may require the deployment of additional officers at very short notice.

  34. 'Overnight on call' is a CSD duty of very considerable duration. I was informed by Mr. Tabachnik that it has been in operation since at least 1947 and, albeit to a somewhat reduced extent, remains in operation today.

  35. The way in which officers in the custodial stream come to perform 'overnight on call' arises out of their shift system of employment. The great majority of institutions have been, and continue to be, manned according to a four shift system: two day shifts and two night shifts. They are as follows:

    (i)

    First shift (unlock shift)

    :

    06.45-13.45 hours

    (ii)

    Second shift (lock-up shift)

    :

    13.15-20.15 hours

    (iii)

    Third shift (first night shift)

    :

    18.45-01.45 hours

    (iv)

    Fourth shift (second night shift)

    :

    01.15-08.15 hours

  36. CSD officers who have completed the second day shift at a penal institution, the one that ends at 20.15, are required to perform 'overnight on call'. They do so by remaining overnight in what earlier I have described as the 'immediate vicinity' of the institution where, as the defence would put it, they remain 'on call' in case they are required for active duty. If they are called to active duty, they must be ready in uniform at the main gate of the institution within 15 minutes. This 15 minutes is not absolute at all institutions. It depends on the regime in place and may, either generally or in respect of individual officers, be varied. But 15 minutes, on the evidence available to me, appears to be the norm. If officers performing 'overnight on call' are called to active duty they are paid overtime for that active duty. In the morning, officers who have performed 'overnight on call' must report to work again to perform the first shift, the shift that commences at 06.45. At the end of that shift they are (invariably) off duty for 24 hours.

  37. In the preceding paragraph I have said that officers who perform 'overnight on call' are required to remain in the immediate vicinity of the prison or detention centre. The immediate vicinity does not mean within the institution's security walls or fences where CSD officers parade on and off duty and where on a day to day basis the great majority of them who are posted to the institution work. The immediate vicinity means the area outside of those security walls or fences but within their close proximity. This area is, with very few exceptions, under the management of the CSD. It is a restricted area in the sense that the general public are not allowed unrestricted access to it. It is not, however, an area which houses facilities for prisoners or offices for CSD staff. It is instead the area where, for historical reasons, the off-duty facilities for CSD staff have been situated. By 'facilities' I mean accommodation facilities of various kinds, club and messing facilities, sporting venues and such general residential facilities as parking areas, gardens and pathways.

  38. Officers who have their homes within the immediate vicinity of a penal institution may return to their homes and perform 'overnight on call' within their domestic surroundings. No claims have been made by the plaintiffs when they have been able to perform the duty at home.

  39. However, those officers who do not live in the immediate vicinity must perform 'overnight on call' away from their homes. All the plaintiffs' claims relate to the performance of 'overnight on call' in these circumstances.

  40. Officers who perform 'overnight on call' away from their homes may enjoy all the facilities available to officers of their rank within the immediate vicinity. They do not have to remain in uniform. They may enjoy the facilities provided by the clubs or messes, they may play sport, they may, depending on the practicalities involved, receive visitors: spouses, family, friends. If a colleague has his quarters (his home) in the immediate vicinity, they may visit him there and act as freely as if paying a social call on a colleague living anywhere else in Hong Kong. They may - subject to the discretion of their superior and provided they ensure they can report for active duty within the required time - leave the immediate vicinity, for example, to do shopping. In this latter regard, it was emphasised by the defence that, by way of illustration, officers serving at Victoria Prison in Mid-Levels are free if they wish to frequent the nearby places of entertainment in Lan Kwai Fong.

  41. However, as the plaintiffs', through their witnesses, have pointed out, having regard to the relatively isolated location of most penal institutions in Hong Kong and the overriding obligation to be available for active duty within about 15 minutes, it is rarely possible to leave the immediate vicinity of an institution and on a day to day basis it is not feasible to have family and friends visiting.

    COMPARING 'ON CALL' AND 'SLEEP-IN, STAND-BY'

  42. During the course of the trial, the defence placed considerable emphasis on the contrast between 'on call' and another duty which has at all times been accepted to be a form of 'stand-by', that duty being known in the CSD as 'sleep-in, stand-by'.

  43. 'Sleep-in, stand-by' has always been performed by Assistant Officers I and II, known as rank and file officers, in respect of which they have received a reduced overtime allowance.

  44. The creation of the duty of 'sleep-in, stand-by' was a consequence of rioting that took place in Stanley Prison in 1973. The rioting demonstrated to the CSD that in maximum security prisons (where the prisoners present a greater potential risk) full security could not be assured at night, when staffing levels may be reduced by 75%, by relying solely on 'overnight on call' officers who could take up to 15 minutes to present themselves at the main gate. What was required was not a group of officers outside of an institution's security walls or fences who were constrained only to be available in case of need but rather a group of officers stationed inside the security walls or fences (and therefore at their 'place of work') who would be on 'stand-by' and therefore immediately available not simply to report for duty but to actually commence that duty.

  45. In a memorandum dated 25 February 1976, the Commissioner of Prisons said the following:

    The implementation of stand-by duty for secure institutions will come into operation w.e.f. 1st April 1976. The following rules are issued to heads of institutions for guidance:-

    (a)

    Definition - Stand-by duty means, the duty performed when an officer has to be at his place of work, though not working, nevertheless, is available for work if required.

    (b)

    Purpose - To have a reserve of staff immediately available in secure institutions at night, i.e. from lock-up to unlock, to respond to any emergency situation requiring additional staff.

    (c)

    Sleeping-in - Staff on stand-by duty will be allowed to sleep in the Stand-by Room and will be allowed to take off their outer garments, but must be prepared at all times to respond to any emergency arising within their respective institutions as quickly as possible.

  46. 'Sleep-in, stand-by' is performed at only a limited number of prisons; as I understand it, at maximum security institutions and Victoria Prison.

  47. This being the genesis of the duty, I am satisfied on the evidence that the officers who perform it are subject to far more rigorous restraints than officers performing 'overnight on call'. The following summary, I believe, will illustrate my meaning:

    1. Officers performing 'sleep-in, stand-by' must formally parade on and off duty in uniform within the security walls or fences of the penal institution. By contrast, officers performing 'overnight on call' are not obliged to parade on or off duty and, as I have said, may wear what clothing they like.

    2. Officers performing 'sleep-in, stand-by' are confined inside their stand-by quarters which are situated within the walls of the institution. The outer door is locked, the key being in the control of the senior officer on night duty. By contrast, officers performing 'overnight on call', while they must remain in the immediate proximity of the institution, are otherwise able to enjoy the same freedom as any other off duty officer whose home is in that proximity.

    3. Within the confines of their stand-by quarters, officers performing 'sleep-in, stand-by' have little opportunity for recreation or entertainment. At best, if they choose not to sleep, they may read, prepare themselves a snack or watch television. By contrast, officers on 'overnight on call' may play sport, enjoy the mess facilities or visit the homes of officers who live in the immediate vicinity.

    4. Officers performing 'sleep-in, stand-by' may not receive visitors. Officers on 'overnight on call' may, setting practical difficulties aside, be visited by whoever they wish.

    5. Being on duty within the walls of the institution, officers performing 'sleep-in, stand-by' are restricted in the nature of the foodstuffs, beverages and entertainment material they may bring with them. Officers on 'overnight on call', who remain outside the prison walls, are subject to no such restrictions.

  48. For the plaintiffs', Mr. McCoy submitted that comparing 'overnight on call' with 'sleep-in, stand-by', both creations of the CSD, avoided the issue which is simply: does 'overnight on call' meet the requirements of CSR 668 and therefore constitute 'stand-by'?

  49. In my judgment, however, remembering that the plaintiffs' claims now commence from February 1985, it is relevant to compare and contrast the two duties, both of which were operated by the CSD over the whole span of time contained within the plaintiffs' claims.

  50. In looking to the nature of 'sleep-in, stand-by', I would conclude by confirming that manifestly, on the evidence, it has at all material times constituted a form of 'stand-by' duty - that has never been disputed the officers carrying out that duty at their 'place of work' beyond their 'conditioned hours'.

    WHAT CONSTITUTES 'STAND-BY'?

  51. It is the plaintiffs' case that the performance of 'on call' is defined by absolute freedom of movement and choice of activity subject only to the restriction that an officer 'on call' must ensure that he is continuously and immediately available to report to duty if required. 'Stand-by' duty, to the contrary, is defined by a restriction on an officer's unfettered freedom of movement. An officer is on 'stand-by' if he is required to remain in a specific location other than his home so that he does not thereby have freedom of movement and cannot thereby do whatever he wishes. Once so restricted, the area to which he is restricted is his 'place of work'.

  52. It is the plaintiffs' case, therefore, that a restriction on freedom of movement goes not only to the essential nature of 'stand-by' but also defines whether an officer is standing-by at his 'place of work', this latter requirement being integral to CSR 668. Mr. McCoy, for the plaintiffs, put it this way, whenever CSD officers are required, outside of their conditioned hours, to remain in a specific geographical location in case they are needed for active duty, that location becomes, for the duration of the duty, their place of work unless, of course, that place is their home. The fact therefore that they are required to make themselves available for active duty in an area which is dominantly residential or recreational in character is not to the point. What is to the point is that they are members of a disciplined service and, as such, must obey orders. They therefore go to where they are told to go and, when there, do what they are told to do. That being the case, if they are required to remain in a restricted location away from their homes and are told to remain there to await a call to active duty, that restricted location becomes their place of work, the work itself being the recognised task of waiting in case of a call to active duty. It is the plaintiffs' case therefore that, while any residential or recreational facilities that may be available within the immediate vicinity of penal institutions may lessen the rigours of having to perform 'overnight on call' away from home, they do not act to change the essential nature of the duty.

  53. Two matters arise.

    • First, whether 'stand-by' is defined by a restriction of movement and 'on call' by a lack of such restriction.

    • Second, whether restriction to a specific area, by that fact alone, renders that specific area an officer's 'place of work'.

    THE 'FREEDOM OF MOVEMENT' ISSUE

  54. It is the plaintiffs' case that, in their performance of 'overnight on call', they have at all times been restricted to a specific location; namely, the 'immediate vicinity' of the penal institution to which they have been posted. They have had to remain there under disciplinary sanction. They have accordingly, by reason of that physical restriction, performed a form of 'stand-by' duty.

  55. The plaintiffs' contention in this regard is based on the dicta of Findlay J in Shau Lin Chi in which he said (at 565F):

    CSR 669 contemplates that the officer required to be on call has a freedom not enjoyed by an officer on stand-by. An officer on call may do whatever he wishes to do and be wherever he wishes to be provided that he is 'at home or in another fixed location or through the medium of a paging device, so that he is continuously and immediately available to report for duty if required'. It is not challenged by the defendant that the plaintiff was, by the orders he was required to obey, not in that position. He was required 'to remain on call beyond his conditioned hours in the area of the High Island Detention Centre away from his official place of abode and accommodated at the barrack accommodation' at HIDC. He was not permitted to be at home with his wife and five children; he was not permitted to attend a soccer match in San Po Kong; he was not permitted to play golf at Kau Sai Chau. In these circumstances, it is very hard for me to understand how it can possibly be said that the plaintiff was merely on call as contemplated by CSR 669.

    [my emphasis]

  56. It is the defendant's case, however, that this dicta arises out of an incorrect reading of the CSRs and that, in terms of CSR 669, whatever the usual practice may or may not be, it is plain that an officer 'on call' may well be required by a superior to remain in a specific location. In short, that an officer 'on call' does not necessarily have the right to be 'wherever he wishes'.

  57. In the course of his submissions, Mr. Tabachnik placed reliance on the House of Lords judgment in Suffolk County Council v Secretary of State for the Environment [1984] ICR 882. Fundamentally, as I understand it, this judgment was relied upon to support the defence contention that CSD officers performing 'overnight on call' are not undertaking 'work' as that word has been interpreted by Findlay J. They are doing no more than making themselves available to be called to active duty if the need should arise. As I have read it, however, the judgment is also put forward as authority for the proposition that an employee 'on call' may be required to remain in a restricted physical location.

  58. The facts of the case are these. The second respondent, Mr. Alcock, was employed by the Suffolk County Council as a retained fireman; that is, a person paid an annual retainer in consideration of his agreement, subject to his terms and conditions of employment, to act as a fireman when called upon to do so. He lived above his retail business within five minutes of the fire station. Contractually, he was 'on call' 24 hours a day although in practice he was expected only to respond to at least 65% of calls in any year. As Lord Templeman observed (at 887D), save by prior arrangement with his superiors, he had to remain within the area which enabled him to report promptly. Mr. Alcock sought to be recognised as a pensionable employee in terms of the Local Government Superannuation Regulations 1974. To do so, he had to show that he was a 'whole-time employee', his regular hours amounting to at least 30 hours a week. To demonstrate 30 hours a week, the time he was 'on call' had to count towards those hours.

  59. in holding that the time spent 'on call' did not constitute hours of employment, Lord Templeman said (at 890B):

    A retained fireman contracts to answer a call but the obligation of a retained fireman to keep himself available to respond to a call is not in itself employment. The retained fireman contracts to employ himself in the service of the council whenever he is called upon to do so following a fire. Once the call comes, his hours of employment begin and then continue until he is released. But in my opinion it is absurd to suggest that Mr. Alcock's 'hours of employment' by the council include the hours he spends working for himself in his shop and the other hours during which he engages in activities which the council cannot control and in places where the council has no authority. It is true that in order to fulfil his contractual obligation to report to the fire station when called on duty, the area of Mr. Alcock's personal activities is circumscribed. But the fact that he must remain within close proximity to the fire station in order to take up his employment when called does not mean that Mr. Alcock's hours of employment are extended.

    [my emphasis]

  60. While the House of Lords judgment in Suffolk County Council v Secretary of State for the Environment is not, in factual terms, directly to the point, the principle enunciated is, in my view, applicable and, of course, is binding.

  61. Findlay J's judgment, as will be seen later in this judgment, is in a number of respects closer to the factual circumstances of the present case although certainly not on all fours with it. I do, of course, recognise the persuasive value of Findlay J's dicta. Nevertheless, in light of Suffolk County Council v Secretary of State for the Environment and the matters to which I shall now refer, I have been drawn to the conclusion that, on a reading of CSR 669, both in isolation and within the context of the CSRs generally, the performance of 'on call' duty does not ipso facto give to a public officer the freedom of movement that my learned brother found him to have.

  62. To cite it again, CSR 669 reads:

    Any period beyond an officer's conditioned hours where the officer is required to be on call either at home or in another fixed location or through the medium of a paging device, so that he is continuously and immediately available to report for duty if required, is not regarded as overtime ....

    [my emphasis]

    In my judgment, if an officer 'on call' was free to chose where he wished to be subject only to the restriction that he be 'continuously and immediately available to report for duty if required' there would be no need within CSR 669 for the long and detailed phrase saying that he must be either at home or at some other fixed location or contactable through the medium of a paging device. That phrase would be entirely otiose. All that the language of the CSR would need to say is that an officer 'on call' is required to be contactable so that he will be continuously and immediately available to report for duty if required. Nor, in my judgment, does the directive language employed in the CSR sit easily with the interpretation that it is the officer who, at his own option, has the absolute choice where he wishes to be subject only to the restriction of availability in case of need. In my view, the plain reading of the CSR is that an officer may be required by his superior to be on call either at his home or at some other location (obviously not his place of work itself) or that he be contactable by means of a pager.

  63. I accept of course that in many branches of the public service it is not the practice to direct officers 'on call' to remain in any identified location; it is sufficient if the officer ensures that he can be contacted. But what may be the practice in some branches will not necessarily be the practice in all branches. As I have said earlier, public servants perform an almost infinite variety of duties and the CSRs are intended to be of general application, ensuring optimum operational efficiency in the public service.

  64. The following example, I believe, will illustrate my interpretation. The supervisor at a public hospital anticipates a medical emergency. He requires one doctor to remain at the hospital to be available to help the staff on duty in case of need while, after consultation with a second doctor, he instructs that second doctor that he need not remain at the hospital but that he is required either to remain at his private residence or his social club, both away from the hospital, in case he too is needed. The doctor who must remain at the hospital to make himself immediately available in case of need is, in my view, standing-by at his place of work. I say that even if he is provided with a room in the hospital where he may rest. The second doctor, however, who is required only to be either at home or at his club, where he may enjoy the pleasures of his family and/or domestic and club surroundings is, in my view, in terms of the CSRs, performing 'on call'.

  65. I would add that I am fortified in my findings by the wording of CSR 681, the CSR which was in place before CSR 668 and CSR 669 replaced it. The wording of CSR 681, in my view, leaves no room for doubt. I believe that, where appropriate, I am entitled to take into account the wording of earlier CSRs. The CSRs, as administrative regulations, will be subject to change from time to time. That inevitability is provided for in the plaintiffs' contracts of employment. The true meaning of a CSR (as is the case with a statutory regulation) may be better comprehended by looking to the manner of its development over a period of time. CSR 681 contained working definitions of both 'stand-by' and 'on call'. It did so as follows:

    'stand-by' is any period during which an officer is required to be present at his place of work outside his normal hours of duty but during which he is not necessarily required to perform any work; in this context 'place of wok' means office, workshop, launch, etc. where an officer performs his duties but does not include his 'normal' living quarters even though they might be next to his place of work

    'on call' is any period during which an officer is required to be continuously and immediately available outside his normal hours of work; this includes both the situation where the officer is required to be at home or in a fixed location where immediate contact can be made and the situation where the officer is required to report a location where he can be so contacted.

    [my emphasis]

    I can find nothing in the wording of CSR 668 or CSR 669 to suggest that the essential nature of 'stand-by' and 'on call', as defined in CSR 681, was to be displaced. To the contrary, the latter CSRs appear to adopt (and take as understood) the definitions contained in CSR 681. I would add that Findlay J in Shau Lin Chi does not appear to have been referred to CSR 681.

  66. In considering the issue of whether 'on call' implies unfettered freedom of movement while 'stand-by' is defined by the lack of it, I have also looked to the judgment of the Court of Appeal in Shau Lin Chi. As I have said, Findlay J's judgment was appealed on a single, discrete issue. Mortimer V-P, giving the principal judgment of the Court of Appeal defined that issue in the following language:

    The question for our decision is simply this. Whether in Regulation 669 'another fixed location' includes the officer's place of work? Mr. Geoffrey Ma SC for the Government, submits that the matter is simple and straightforward. The words 'in another fixed location' simply mean 'in any other fixed location, and that must include the officer's place of work.

  67. With regard to the present proceedings, it must be emphasised that the Court of Appeal proceeded on the then uncontested basis that the barracks in the immediate vicinity of the Vietnamese Detention Centre where Mr. Shau, a Chief Officer, was required to perform 'overnight on call' was for all intents and purposes part of his 'place of work'. Before me, it has been said that any concession made by the defence in that regard was wrong and that the barracks were not, in the context of Mr. Shau's employment in the CSD, in any way his 'place of work'.

  68. However, on the basis of the concession, as it then appears to have been made by the defendant, Mortimer V-P observed:

    It is necessary to consider for a moment the conditions under which the officer was required to be at his place of work. It was accepted below that he was required 'to remain on call beyond his conditioned hours in the area of the High Island Detention Centre away from his official place of abode and accommodated at the barrack accommodation'. The High Island Detention Centre was his usual place of work and his normal residence - described as 'his official place of abode' - was some distance away. So he was away from home and could not leave the barracks. Although he was entitled to use the leisure facilities, he was not entitled to have any of his family there. He was not required to wear uniform.

  69. Mortimer V-P went on to find that, in terms of CSR 669, the phrase 'another fixed location' could not, without making a nonsense of the meaning of the CSR, include an officers 'place of work'. He expressed it thus:

    I return to the issue whether the words 'another fixed location' in Regulation 669 could include his place of work. For my part, I am clearly of the view that it cannot include his place of work. If the whole of the Regulation is read, the obvious intent is that when the officer is 'on call', he is continuously and immediately available to report to his workplace for duty if required from either home, another place or through the medium of a paging device. Another location cannot in those circumstances be at the very place where he has to work.

  70. Godfrey JA (as he then was) was equally succinct:

    Under the fasciculus of regulations concerned with overtime in the Civil Service Regulations (CSRs 665 to 674) an officer who is called on to work over and beyond his conditioned hours is entitled in certain circumstances to recompense. The officer may be required either to 'stand-by' at his place of work, so that he may be so called on to work there, or he may be required to be 'on call', either at home or elsewhere, for the same purpose. Different rules apply in each case. The concept of an officer being 'on call' at his place of work seems to me to be a nonsense, and inconsistent with the framework of the regulations.

  71. Rogers JA (as he then was) concurred, saying:

    This appeal turns on the proper construction of CSR 669 of the Civil Service Regulations and whether the Government can bring itself within CSR 669 and thus exclude the right of the plaintiff to time off as compensation for overtime. I say 'regulation' advisedly. The question is not what do the words 'in another fixed location' mean outside the context of the regulation. The words of the Regulation as any other statutory or regulatory provision must be read in their context. As has been said by the Vice-President that context dictates that those words cannot mean 'at his place of work'.

  72. Although there is nothing said directly to the point, it seems to me that if the Court of Appeal had shared Findlay J's interpretation of CSR 669; namely, that the regulation gave to the public officer the choice, at his own discretion, where he wished to be while 'on call', then there would have been no purpose in deciding the single issue that fell for determination. The issue could only have had some practical substance if a public officer could be required by a superior officer to remain at 'another fixed location' for then a good deal would turn on whether that other fixed location could or could not include the officers' actual place of work. If, in terms of CSR 669, an officer could not be directed to remain in an identified location but could chose absolutely where he wished to be then the issue would, at best, have been academic.

  73. For the reasons given, I am satisfied that a public officer who is 'on call' may be required in terms of CSR 669 to remain at one (or more) specific locations.

    THE 'PLACE OR WORK' ISSUE

  74. It follows from what I have said that the requirement to remain in a specific location does not, by that requirement alone, make the location a 'place of work' within the meaning of CSR 668. That CSR commences (to cite it again): 'An eligible officer who is required to stand-by at his place of work beyond his conditioned hours may be paid an overtime allowance.' In my judgment, whether a specific location is or is not a 'place of work' in terms of CSR 668 is a question of fact to be determined by having regard to all relevant circumstances.

  75. It is the defendant's case that the immediate vicinities of the penal institutions where the plaintiffs performed 'overnight on call' have never, in factual terms, constituted their place of work. As I understand it, it has been contended on behalf of the defendant that this fact is to be drawn from a consideration of three matters:

    1. the history of the immediate vicinities;

    2. their dominant nature and usage during the period of the plaintiffs' claims; and

    3. the manner in which the plaintiffs themselves were able (or required) to make use of them.

    A. The history of the immediate vicinities

  76. In his submissions, Mr. Tabachnik said that the genesis of 'overnight on call' was to be found in two long-standing requirements imposed on CSD officers. First, was the requirement for CSD officers to 'live by the job'; that is, to live within the immediate vicinity of the institution to which they were posted, and, second, integral really to the first requirement, the prohibition against CSD officers (of subordinate rank: for the meaning of 'subordinate' see s. 2 of the Prisons Ordinance, Cap.234) sleeping away from their quarters without specific permission. Today, said Mr. Tabachnik, these requirements have been relaxed - the plaintiffs submitted they are now dead letters - but understanding their historical significance would lead to an understanding of the dual nature of CSD sites and, through that, how it was that the immediate vicinity of penal institutions have never constituted places of work.

  77. For the operational reasons outlined in paragraph 33 of this judgment, Mr. Tabachnik said that there has always been an operational need to ensure that each prison or detention centre has a reserve of officers staying close by overnight in order, if necessary, to reinforce staff on duty within the institution. In addition, said Mr. Tabachnik, with many penal institutions being sited away from urban centres, unless staff were able to live close by the institution to which they were posted it would have been burdensome for them to travel to and from their homes between shifts. Accordingly, for both sound operational reasons and for their own welfare, it was for many years a contractual requirement for CSD officers to 'live by the job'.

  78. Operationally, of course, living by the job would mean little unless, in the case of need, officers were available to be called from their quarters to provide timely back-up. For this reason, said Mr. Tabachnik, the Prison Rules, made pursuant to the Prisons Ordinance, have prohibited subordinate officers from sleeping away from their allocated quarters without permission. Although this rule has now in practice been greatly relaxed, he pointed to the fact that s.141(1) of the Prison Rules still provides that:

    Subordinate officers shall not sleep out of such quarters as the Government may assign to them without the permission of a Superintendent.

  79. Mr. Tabachnik said that it was this need to house officers close to the institutions where they worked that has led to the present dual nature of areas under CSD management: the officers' place of work being within the security walls or fences of the institution, their place of residence and/or recreation being outside in the immediate vicinity.

  80. There was a time, said Mr. Tabachnik, when CSD officers were subject to an administrative regime in terms of which, in so far as accommodation was available, they were allocated quarters in the immediate vicinity of the institution where they worked. When they were transferred to another institution, they were required to surrender their quarters and, in so far as availability allowed, would be allocated quarters in the immediate vicinity of the new institution to which they had been posted. This regime, said Mr. Tabachnik, meant that each penal institution had a body of officers living in its immediate vicinity who were available within their home environment to undertake 'overnight on call' duties as part of their regular routine.

  81. However, this requirement to move regularly in order to live by the job often resulted in inconvenience to an officer's family. For example, children may have had to change school or wives give up work. In the result, in April 1992, a new quartering policy came into effect. In terms of this policy, even if an officer was transferred from one institution to another, he could, if he wished, retain his old quarter. For example, an officer stationed at Stanley Prison on the south side of Hong Kong Island who was transferred to Lai Chi Kok Detention Centre in Kowloon could opt to remain in his Stanley quarters.

  82. How did that relaxation impact on the 'overnight on call' system? The system has remained, said Mr. Tabachnik. Now, however, those officers who decide not to live by the job are provided with temporary accommodation suitable to their rank in the immediate vicinity of the institution to which they are posted so that they can sleep there when on 'overnight on call' and they may, of course, dressed as they wish, enjoy all the other facilities provided as effectively as if they were in fact living there.

    B. The dominant nature and usage of the immediate vicinities

  83. For the defendant it has been important to demonstrate that the immediate vicinities of Hong Kong's penal institutions have never, in terms of the essential activities conducted or the facilities provided therein, constituted places of work for CSD officers. To this end, at the request of the defence, site visits were made to the following institutions under CSD management:

    1. Victoria Prison, Hong Kong's oldest prison, a medium security prison situated in the congested urban area of Mid-Levels.

    2. Stanley Prison, a maximum security prison, situated in extensive grounds on the south side of Hong Kong Island close to Stanley Village.

    3. Lai Chi Kok Reception Centre, Hong Kong's principal remand prison, situated in a congested urban area of Kowloon but, unlike Victoria Prison, having the benefit of more expansive grounds under the management of CSD.

    4. Hei Ling Chau, an island close to Lantau, which has four penal institutions on it.

    5. High Island Detention Centre, one of the former Vietnamese detention centres managed by CSD, situated in a country park close to the High Island Reservoir.

  84. My findings arising out of the site visits may be summarised as follows:

    1. There was a manifest distinction between the activities conducted and the facilities provided within the security walls or fences and those outside in the immediate proximity.

    2. It is within the security walls or fences that prisoners or detainees sleep, eat, do their ablutions, receive visitors, report sick, enjoy their periods of recreation and are put to labour in workshops. It is within the security walls or fences therefore that almost all the CSD officers in the custodial stream, who are posted to the prison or detention centre and who must supervise these activities, fulfill their working obligations. These officers formally parade on and off duty within the institutions. It is here that their offices, stores and the like are situated. Within penal institutions, security is a priority. In my judgment, it cannot be disputed that, in respect of CSD officers who must perform 'overnight on call', it is within the institutions that their essential place of work is to be found.

    3. Outside of the walls or fences are situated the residential and recreational facilities for CSD officers and their families. These vary, of course, depending on the institution its geographical location, age, purpose and the like but, as I have said, they contain accommodation facilities, clubs, messes, sporting venues and other such facilities. While a CSD officer may guard a boom at the entrance to the immediate vicinity, signs of security are otherwise absent. Residents and authorised visitors may come and go as they like. During the site visits I saw an off duty officer walking his dog, I saw children playing.

    4. I saw no evidence of mixed usage of the areas comprising the immediate vicinities of the institutions visited; for example, the siting of a CSD office or a clinic for prisoners next to a mess or officers' quarters.

    5. On behalf of the plaintiffs it was contended that there was in fact a material degree of mixed usage. By way of example, it was said that it was necessary (on occasions) for officers to patrol outside of the security walls or fences. It was also necessary for officers to escort parties of prisoners to do such work as gardening, building or cleaning. Invariably too, as I have already indicated, it has been the practice to place an officer on guard at the entrance to the immediate vicinity of institutions to ensure that only those with a legitimate interest are allowed to pass the boom. But, of course, it has never been suggested that the immediate vicinity of penal institutions are hermetically sealed off from the institutions themselves. Obviously, the presence of the institutions must influence the areas surrounding them. The need from time to time to maintain security outside of the security walls or fences as well as within is one example. The issue, however, is whether these influences impact upon the essential residential and recreational nature of the areas and I am satisfied that they do not. Despite the fact that the immediate vicinities of the institutions visited were often, to employ a metaphor, within the shadow of the walls of those institutions, I was struck by the fact that they retained a fundamentally residential and recreational atmosphere and were, for all practical purposes, exclusively used for those purposes.

    6. As to the quality and extent of the facilities provided for the benefit of CSD staff and their families within the immediate vicinity of the institutions visited, these varied considerably and no doubt since 1985 have been constantly subject to change. For example, Stanley Prison and Lai Chi Kok Reception Centre boast club facilities that would grace many private clubs. By way of illustration, an officer performing 'overnight on call' at Lai Chi Kok Reception Centre today may enjoy karaoke facilities in a quasi nightclub setting; he may chose a Chinese or Western-style restaurant or simply read a magazine and drink coffee in the coffee shop; he may swim in the club pool or play squash or attend a fitness room and, if it is practical, he may do so in the company of friends and family members. On the other hand, on Hei Ling Chau, the island close to Lantau, the club facilities are more rustic and limited although there are eating places, barbecue areas by the water's edge, gardens and convivial messes. Having regard to the relative isolation of Hei Ling Chau and the need to get to it by ferry, the opportunity to have family or friends visiting would, of course, be limited.

    7. The variation in the quality and extent of facilities was, in my view, most marked when a visit was made to the site of the former CSD barracks at the High Island Detention Centre. This is the barracks where Mr. Shau, the successful plaintiff in Shau Lin Chi v Secretary for Justice, performed his 'overnight on call' duties. When the visit was made, the barracks were empty, in the process of refurbishment for some new use. The barracks gave off the air of an abandoned military outpost. They had been erected, of course, to meet the crisis occasioned by the influx of so many Vietnamese migrants and there can be no doubt that facilities for off duty CSD officers were limited in comparison to more established sites. I was informed, however, that there had been a bar, canteen facilities, places to watch television and the like. It was apparent that sleeping quarters would have been fairly cramped, some may even say spartan. Officers in the disciplined services who are obliged to serve in different locations must, of course, expect a variation in facilities. That, in my view, must be inherent in the requirements of the job.

    8. The overnight accommodation offered to officers performing 'overnight on call' at all the penal institutions was subject to considerable scrutiny. The quarters differed according to rank.

      1. Junior officers, those in what is called the rank and file, have to sleep in barracks. These consist of dormitory-style buildings in which are set rows of iron bunks, most being double bunks with a metal or wooden side table and a locker nearby. The mattresses that I saw were thin, the other bedding of a government 'general issue' nature, adequate at best. I can understand officers sleeping in such barracks bringing their own bedding. Ablution facilities in the barracks are shared. It was pointed out, and I readily accept, that, with officers coming on and off duty, an undisturbed sleep would be the privilege of the more robust.

      2. CSD officers of more senior rank are provided with either single quarters or larger family quarters which they share with other officers. These quarters are generally more inviting. Many, as I have just indicated, are old married quarters with their own kitchens and bathrooms. However, because the quarters are invariably required only for temporary use, they are rarely furnished with anything more than basic government-supplied furnishings. Put simply, I saw little that was 'homely' about them.

      3. As I understand it, only CSD officers themselves can sleep in the barracks or quarters that have been provided for 'overnight on call' purposes. They may not therefore have their families stay over with them.

      4. It should also be mentioned that officers sleeping in barracks (and, to a less pronounced degree, in quarters) are subject to rules of conduct made to ensure discipline and harmony.

  85. In summary, despite some marked variation in the quality of the facilities from one to another, I was, on the evidence, satisfied that the immediate vicinities of Hong Kong's penal institutions have at all times, as their history has shown, been intended for and used as residential and recreational areas. I do not see how, in any general sense, they can be described as places of work. I make that observation, of course, subject to the proviso that factually, if they are used as places of work, that will change their nature.

  86. I accept that officers performing 'overnight on call' are required to ensure that, if called upon, they will be ready in uniform at the main gate of the institution to which they are posted within 15 minutes. But those requirements, in my opinion, are entirely consistent with the requirement contained in CSR 669 for public servants 'on call' to be 'continuously and immediately available to report for duty if required'. What amounts to being 'continuously and immediately available will differ according to the requirements of a public servant's duties. It speaks for itself that CSD officers must report for duty in uniform. It also speaks for itself that, in case of an emergency, such as a riot in an institution or gang fighting, there will be an operational need to be available in the shortest possible time.

    C. The actual usage by the plaintiffs

  87. In looking to the issue of usage, it must be remembered that immediately an officer performing 'overnight on call' is summoned to active duty, he is entitled to an overtime allowance. To employ the defence description, therefore, an officer performing 'overnight on call' is doing no more than making himself available so that, in accordance with the imperatives of his job, he is able to report for duty if required. Once he has reported, then he becomes entitled to overtime compensation.

  88. While performing 'overnight on call' away from their homes, CSD officers are not directed to any specific duty. If they are so directed, it is accepted that they are then performing overtime work. Nor are they directed in any way as to how they may employ their time. While they must, absent permission to the contrary, remain in the immediate vicinity, they may therefore engage in activities which the CSD cannot (and does not) control. In short, they are left to their own devices. That being the case, it seems to me that the dicta of Lord Templeman in Suffolk County Council v Secretary of State for the Environment (paragraph 58 supra) must apply. They are not working. They are instead making themselves available to work.

  89. This is not to say, of course, that officers performing 'overnight on call' have not been subject to restrictions. Of course they have. For many no doubt those restrictions have been hard felt. But, as will be seen later in this judgment, that hardship has been recognised by Government and a special allowance to compensate for that hardship has been paid since February 1989.

  90. I must also emphasise that this judgment must focus on contractual issues not on such matters as levels of compensation which are issues for collective bargaining outside of the remit of this court.

    'WORK' AND 'PLACE OF WORK': JUDGMENTS OF THE EUROPEAN COURT

  91. To support the submission that, in being required to remain in the immediate vicinities of the institutions to which they were posted, the applicants, in their performance of 'overnight on call', were working and were therefore at their 'place of work', Mr. McCoy made reference to two judgments of the Court of Justice of the European Communities. The first was SIMAP v Conselteria de Sanidad [2001] ICR 1116, the second was Landeshauptstadt Kiel (the City of Kiel) v Jaeger Case C-151/02, a digest being published in [2003] All ER(D) 72. The second case adopted the jurisprudence of the first.

  92. Both cases looked to the meaning and extent of Directive 93/104 of the European Council which lays down minimum requirements concerning the organization of work. In the second case, that of Jaeger, Mr. Jaeger (as he is described) worked as a doctor at a hospital. In terms of his employment, he was obliged to perform a duty known as 'on call'. The Court found that under German national law there were three concepts related to work, only the first of which actually constituted work. The Court observed:

    Readiness for work (Arbeitsbereitschaft) covers the situation in which the worker must make himself available to his employer at the place of employment and is, moreover, obliged to remain continuously attentive in order to be able to intervene immediately in case of need.

    While an employee is on call (Bereitschaftsdienst) he is obliged to be present at a place determined by the employer, on or outside the latter's premises, and to keep himself available to answer his employer's call, but he is authorised to rest or to occupy himself as he sees fit as long as his services are not required.

    The stand-by service (Rufbereitschaft) is characterised by the fact that the employee is not obliged to remain waiting in a place designated by the employer but it is sufficient for him to be reachable at any time so that he may be called upon at short notice to perform his professional tasks.

    [my emphasis]

  93. Mr. Jaeger's 'on call' duties obliged him to remain at the hospital so that he could be called upon to carry out his professional duties as and when the need arose. He was, however, allocated a room with a bed where he was permitted to sleep and occupy himself as he wished when not actually performing his professional duties. It was accepted that Mr. Jaeger, on average, worked no more than 49% of the time when 'on call'. Mr. Jaeger contended that under Directive 93/104 the entire time that he was 'on call' should be considered as time that he was working. The Court agreed. In paragraphs 63-65, it said:

    .... the decisive factor in considering that the characteristic features of the concept of working time within the meaning of Directive 93/104 are present in the case of time spent on call by doctors in the hospital itself is that they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need. In fact, as may be inferred from paragraph 48 of the judgment in Simap, those obligations, which make it impossible for the doctors concerned to choose the place where they stay during waiting periods, must be regarded as coming within the ambit of the performance of their duties.

    That conclusion is not altered by the mere fact that the employer makes available to the doctor a rest room in which he can stay for as long as his professional services are not required.

    It should be added that, as the Court already held at paragraph 50 of the judgment in Simap, in contrast to a doctor on stand-by, where the doctor is required to be permanently accessible but not present in the health centre, a doctor who is required to keep himself available to his employer at the place determined by him for the whole duration of periods of on-call duty is subject to appreciably greater constraints since he has to remain apart from his family and social environment and has less freedom to manage the time during which his professional services are not required. Under those conditions an employee available at the place determined by the employer cannot be regarded as being at rest during the periods of his on-call duty when he is not actually carrying on any professional activity.

  94. In my judgment, Jaeger and, through it, Simap do not advance the plaintiffs' case. I say so for the following reasons:

    1. in the case before me the CSRs are to be interpreted as administrative rules relating to compensation for overtime. The context is contractual. The interpretation of the European Court, however, is a purposive one based on the overt object of the directive in question; namely, the protection of the health and safety of employees. The context is one of labour law. In this regard, in paragraphs 70 and 94, the Court said that its interpretation was -

      .... the only interpretation which accords with the objective of Directive 93/104 which is to secure effective protection of the safety and health of employees by allowing them to enjoy minimum periods of rest. That interpretation is all the more cogent in the case of doctors performing on-call duty in health centres, given that the periods during which their services are not required in order to cope with emergencies may, depending on the case, be of short duration and/or subject to frequent interruptions and where, moreover, it cannot be ruled out that the persons concerned may be prompted to intervene, apart from in emergencies, to monitor the condition of patients placed under their care or to perform tasks of an administrative nature.

      In order to be able to rest effectively, the worker must be able to remove himself from his working environment for a specific number of hours which must not only be consecutive but must also directly follow a period of work in order to enable him to relax and dispel the fatigue caused by the performance of his duties. That requirement appears all the more necessary where, by way of exception to the general rule, normal daily working time is extended by completion of a period of on-call duty.

      [my emphasis]

    2. In both Jaeger and Simap, the rest facilities provided to the doctors were at the hospitals or clinics where they worked. They were situated at their places of work. As such, in my judgment, their position was more akin to that of CSD officers who are required to perform 'sleep-in, stand-by', a duty recognised as one that attracts an overtime allowance. Officers who perform that duty are provided rest facilities within penal institutions, manifestly therefore at their places of work. By contrast, I have found that officers who perform 'overnight on call' in the immediate vicinities of penal institution do not do so at their places of work.

    3. That being the case, on my findings, officers who perform 'overnight on call' may more accurately, if at all, be covered by the comments of the European Court in Jaeger made at paragraph 51:

      .... in Simap, the Court went on to state that the situation is different where doctors in primary care teams are on call by being contactable at all times without having to be at the health centre. In fact, even if they are at the disposal of their employer, in that it must be possible to contact them, the fact remains that in that situation doctors may manage their time with fewer constraints and pursue their own interests, so that only time linked to the actual provision of primary care services must be regarded as working time within the meaning of Directive 93/104.

      [my emphasis]

    'OVERNIGHT ON CALL' AN INHERENT REQUIREMENT OF THE JOB

  95. As I have observed earlier in this judgment, it has long been recognised that disciplined services such as the CSD are subject to operational constraints that do not burden the civilian arms of Government. These operational constraints not only determine the nature of the duties that must be performed but when they must be performed. In this regard, by way of general illustration, CSR 544 provides that 'conditioned hours' in the disciplined service; that is, the 'hours of duty which salary is calculated to cover', are to be -

    .... governed by operational needs and are determined in relation to the total responsibilities of each Service, its complement, and the actual manpower situation at any time.

  96. It is the defendant's case, as I understand it, that operational needs have at all times determined that the performance of 'overnight on call' has been an inherent requirement of the plaintiffs' employment. It has never been viewed as a once-in-a-while additional duty, as some form of overtime demanded by the vagaries of the job, but has been determined to be, for sound operational reasons, a regular and thereby inherent requirement of each plaintiff's employment. This determination has been exhibited, directly and indirectly, in circulars, circular memoranda, departmental instructions and the like in force from time to time and has been mirrored in the accepted recommendations of a line of commissions and committees appointed to assess the terms and conditions of service of members of the disciplined services.

  97. On behalf of the defendant, Mr. Tabachnik said that the principle had been stated in unambiguous terms as early as 1971 when the Government accepted and put into effect the recommendations of the 1971 Salaries Commission. In respect of disciplined services (such as the CSD) that Commission said (Cap.17, paras. 367, 368 and 369):

    367:

    The Salary scales which we are proposing for each of the Disciplined Services are based on the assumption that any unusual or special features in the hours of work to be undertaken are part of the requirements for each Disciplined Service; and these are taken into account in the Salary scales.

    368:

    Under the present Regulations, on the same general principles as stated above, Disciplined Services are ineligible for overtime. Also, basing themselves on the same general principles, the view of the Working Party was that they should continue to be ineligible, but that the basic salaries of the officers should be assessed to take into account the scale and/or irregular hours which the nature of their work makes necessary.

    369:

    Whatever overtime they work on a regular basis is part of the exigencies of each Service, and is allowed for in the 'pay for the job'. On this ground we consider that it would be inconsistent for us to recommend any form of commuted or consolidated monthly allowance in any of the Disciplined Service.

    On the same general principles we consider that any specific allowances for Disciplined Services in respect of shift duty, night duty, stand-by duty, on call duty or any other form of hardship should be inadmissible.

    [my emphasis]

    These recommendations were approved by the Governor-in-Council on 4 January 1972.

  98. Mr. Tabachnik said that, although later commissions and committees were to bring about changes to terms and conditions of remuneration in accordance with changing conditions and changing expectations, the fundamental principles stated by the 1971 Commission have been adhered to by later bodies tasked with assessing public service pay and conditions. The evidence, as I have read it, has supported him in this regard.

  99. The practical consequence of the adoption of these principles, said Mr. Tabachnik, has been that at all times material to this action CSD officers joining the service have enjoyed a markedly higher rate of pay by way of salary than that awarded to persons of similar qualification joining a civilian branch of the public service. By way of (uncontested) evidential support for this assertion, Mr. Duncan Pescod, a past Deputy Secretary for the Civil Service, said the following in his first witness statement which was adopted as his evidence:

    Correctional Services staff are remunerated on the General Disciplined Services Pay Scale which provides higher pay levels than that given to civilian ranks on the Master Pay Scale with similar education qualification. For instance, the current entry pay for the basic rank of Officer in CSD ($26,075) is 52% higher than that of an Executive Officer II ($17,100) for degree holders. The entry pay for an Assistant Officer II ($13,710) is 49% higher than that of an Assistant Clerical Officer ($9,180) with same educational qualifications. The pay differential is attributable to the fact that members of the Disciplined Services are subject to stricter conditions of work governed by the operational needs of their respective departments and other factors which are particular to the Disciplined Services such as stress, hardship, danger, discipline, hours of work, shift patterns, unpredictable calls upon staff time, restriction on personal freedom and social segregation.

    [my emphasis]

  100. As to how it is that the various commissions and committees have formed part of the machinery for determining the terms and conditions of the plaintiffs' employment, Mr. Pescod said the following in the same witness statement:

    The CSB [Civil Service Bureau] is the policy bureau responsible for, among other things, pay and conditions of service matters concerning the civil service. The following independent advisory bodies advise the Government on these matters: the Standing Commission on Civil Service Salaries and Conditions of Service, the Standing Committee on Directorate Salaries and Conditions of Service, and the Standing Committee on Disciplined Services Salaries and Conditions of Service. In tendering their advice, these advisory bodies take account of the views of the CSB, the departmental management, staff associations and other bodies which are considered to have a direct interest. Upon receipt of the recommendations made by the advisory bodies, the Government will consider them carefully and, where considered appropriate, seek the necessary approval for their implementation. Such approval includes, where applicable, the approval of the Finance Committee of the Legislative Council of the financial implications ....

    The heads of individual departments or the constituent staff associations of the staff sides of the four central consultative councils may also refer matters concerning the pay and conditions of service of civil servants to the relevant standing advisory body. Before tendering its advice, the advisory body will take into account the views expressed by the management, the staff associations and other bodies which are considered to have a direct interest. The Government will consider whether the recommendations made by the advisory body should be accepted or not. If the Government decides to accept the recommendations and if the implementation of the recommendations has financial implications, the approval of the Finance Committee will be sought.

    The decision on changes to the existing pay and conditions of service will be promulgated in a CSB circular or circular memorandum ....

  101. In assessing the terms and conditions of the plaintiffs' employment there has therefore been in place a public consultative process, one in which they have been able to participate. It cannot therefore be said that the plaintiffs have been blind to (or uninformed as to) the basis upon which their terms and conditions have been assessed and why it has been, for example, that they have not received any form of extra compensation above their salaries for their performance of overnight on call.

  102. Accordingly, if, of their own knowledge, CSD officers have already been rewarded by way of salary for their performance of 'overnight on call', it can be said that to pay them a form of overtime compensation will effectively mean payment of double compensation for the same duty. In my judgment, there is substance in such a contention.

  103. In the course of submissions, Mr. Tabachnik, for the defendant, said that, although 'overnight on call' has always been an inherent job requirement of CSD officers and has never attracted an overtime allowance, the Government has not ignored the hardship that may be occasioned when officers must perform the duty away from their homes. Accordingly, since February 1989, he said, officers who have performed 'overnight on call' away from their homes have been entitled to payment of a special allowance. This allowance was originally set at $50 per duty. However, the amount has been increased from time to time and is now set at $123 per duty. Mr. Tabachnik said that it was the 1988 Review Committee on Disciplined Services Pay and Conditions of Service ('the Rennie Committee') which recommended that the special allowance be paid. In its report, the Rennie Committee made the following observations:

    A number of representations we received pointed out that many Correctional Services staff are required to perform overnight on-call duty within the area of their institution and away from their place of residence at a frequency of about 12 times a month. These hours are not counted as hours worked and staff are neither paid an allowance nor given time-off in lieu. We have examined this situation closely and consider it inequitable. We find it unreasonable not to compensate the staff concerned for this substantial regular commitment. Accordingly, we recommend that a special allowance, for which we propose the fixed daily rate of $50, should be paid to this category of staff in recognition of this commitment. In view of the purpose of this allowance we do not consider that officers who are in receipt of Remote Stations Allowance or are provided with quarters at or near their place of work should be eligible for it.

    It is to be noted that the restriction concerning the Remote Stations Allowance was later removed.

  104. When the then Commissioner of Correctional Services enquired of the Secretary for Security why the special allowance was payable only to officers performing 'overnight on call' away from home, the Secretary received the following response from the Rennie Committee:

    The Committee considered that the $50 special allowance should not be paid to staff who live in quarters at an institution .... The Correctional Services staff in question are actually on call at home in their quarters as prescribed in CSR 669 and the recommendation is in line with the established practice which we saw no reason to change. [The purpose of the allowance] was to compensate for the hardship and disruption to family life caused by the requirement of being on-call at an institution away from the officers' homes. It was on this basis that the Committee proposed the special allowance.

    The Secretary for Security, in turn, advised the Commissioner -

    The Committee proposed the $50 special allowance to compensate for the hardship and disruption to family life caused by the requirement of being on call at an institution away from the officers' homes. This purpose would not be served if the allowance were payable to officers who are provided with quarters and can enjoy family life whilst remaining on call at home ....

  105. I am informed that the recommendations of the Rennie Committee were accepted by the Governor-in-Council on 20 December 1988 and approved by the Finance Committee of the Legislative Council on 11 January 1989. In the result, the special allowance for 'overnight on call', when performed away from home, has been paid since 1 February 1989.

  106. The Rennie Committee did not make a finding that 'overnight on call' constituted a form of additional duty attracting some form of overtime compensation. To the contrary, it recognised that it was an inherent requirement of the job. Its concern was that it constituted a hardship for officers who had to perform the duty away from their home.

  107. Circular No.3/89 (dated 13 January 1989) conveyed to all members of the disciplined services that, with the approval of the Finance Committee of the Legislative Council, their pay scales and allowances had been revised. The revisions included a new 'disciplined services overtime allowance' which provided compensation for overtime at the rate of 1/175th of an officer's monthly salary for each hour of overtime worked. However, separate to this, under the heading of 'other allowances', the circular provided for new 'job-related allowances' for the disciplined services. Details of these allowances were set out in appendix 4 to the circular. That appendix, under the sub-heading of 'special allowances' contains the following entry:

    CSD

    Staff performing

    overnight on-call duty

    $50

    within the area of their institution and (per night)

    away from their place

    of residence

  108. Circular No.3/89 was issued by the Government Secretariat and bore an endorsement to the effect that it was intended to be read by all members of the disciplined services.

  109. Read as a whole, it seems plain to me that, in terms of the circular, whatever the position may have been before 1 February 1989, from that date, the contract of employment of a disciplined staff officer in the CSD was marked by the following contractual features:

    1. The performance of 'overnight on call' away from that officer's home did not entitle him to any form of overtime allowance. It was considered to be a duty which his salary was calculated to cover.

    2. Performance of 'overnight on call' did, however, attract a special allowance for certain CSD officers; namely, those performing the duty away from their homes.

  110. On behalf of the plaintiffs, Mr. McCoy said that the introduction of the special allowance could not displace the primacy of the CSRs. But CSR 5, of course, provides that the CSRs may be supplemented by circulars which are of equal force to the CSRs: see paragraph 7 of this judgment.

  111. It should be mentioned that the introduction of the special allowance was subject to a quota of 700 officers. This quota was allocated according to operational requirements. The evidence showed that the management of penal institutions generally permitted staff not falling within the quota to avoid performance of 'overnight on call'. The quota allocation, it was said, was thereby generally sufficient to cover the total number of staff who were required to stay in the immediate vicinity to perform 'overnight on call' away from their homes.

    MY CONCLUSIONS AS TO LIABILITY ON THE 'CONTRACTUAL ISSUE'

  112. For the reasons given, I am satisfied that -

    1. The performance of 'overnight on call' by the plaintiffs has constituted an inherent requirement of their employment. Contractually, it has never constituted a form of additional duty which should have attracted a form of overtime allowance. In short, it has at all times constituted a duty which their salaries have been calculated to cover.

    2. In any event, the plaintiffs' performance of 'overnight on call' has never, pursuant to their terms and conditions of employment, constituted a form of 'stand-by' duty. To the contrary, it has at all times been correctly classified as a form of 'on call' duty as that duty is described in CSR 669.

    SOME OBSERVATIONS CONCERNING THE FIRST INSTANCE JUDGMENT IN SHAU LIN CHI v SECRETARY OF JUSTICE.

  113. For the reasons given in this judgment, I have declined to follow certain of the findings of Findlay J made in his first instance judgment in Shau Lin Chi. In light of that unusual step, and bearing in mind the importance placed upon the case by counsel for the plaintiffs, I believe it is proper to make brief mention of certain matters.

  114. First, as I have indicated earlier in this judgment, it does not appear to have been made an issue before Findlay J that there was a distinction between the confines of the High Island Vietnamese Detention Centre where Mr. Shau served as a Chief Officer and the barracks situated some distance from the detention centre where he performed 'overnight on call'. In the present case that general issue of physical distinction was central to the plaintiffs' claims.

  115. Second, Findlay J's judgment was made with reference to a more limited number of CSRs. Nor does he appear to have been referred to the extensive history that was placed before me of how 'overnight on call' came into being and has been compensated upon the recommendations of various commissions and committees.

  116. Third, Findlay J's judgment was made within the confines of a materially different factual matrix, one restricted to a limited period of time and to one institution only, an institution that the CSD controlled for a finite period in order to meet a crisis situation and where clearly the operational hardships imposed on officers were out of the ordinary. In this regard, I make the following observations:

    1. The High Island Detention Centre to which Mr. Shau was posted had originally been under the management of the police. The CSD only took over management of the centre in September 1991.

    2. The police had operated a two-shift system and had paid its officers a disciplined services overtime allowance ('DSOA') when they remained overnight in the barracks set on high ground above the camp. On the assumption (rightly or wrongly) by the CSD that it would continue the same system, CSD staff who performed 'overnight on call' at the barracks were also paid DSOA.

    3. Findlay J does not appear to have been told that no such allowance was (or had been) paid to CSD officers for performance of the same duty at other institutions.

    4. In the circumstances, in making a declaration that Mr. Shau, a Chief Officer who by reason of rank was not entitled to DSOA, was nevertheless entitled to time off in lieu, it is unsurprising that Findlay J should have taken into account that Mr. Shau's junior officers were being paid overtime. In this regard, he said:

      There is another problem with Mr. Dykes' submission on this point. This is that the similar duty performed by the plaintiff's subordinate officers under similar conditions was not regarded as falling within CSR 669. In their cases, it was accepted that they were 'required to undertake unavoidable additional duties over and beyond what may reasonably be regarded as their normal hours of work', and they were paid the disciplined officers special allowance. If they had been regarded as simply being on call under CSR 669, they would have been entitled to no recompense.

    5. Nothing appears in Findlay J's judgment to suggest that it had been argued on behalf of the defendant that the subordinate officers had themselves been wrongly paid their allowances and that therefore no comparison was possible between their receipt of compensation and Mr. Shau's denial of it. It must be assumed therefore that at the time the matter was argued it was accepted that the subordinate officers had, in terms of their contracts of employment, been correctly paid.

    6. However, the (uncontested) history of the matter reveals that the Secretary for the Treasury had queried why DSOA was being paid when it appeared to be contrary to the eligible criteria. In the result, from 1 March 1993 DSOA was no longer paid to CSD officers at the Detention Centre.

    7. However, payment of DSOA was substituted by payment of a 'sleep-in, stand-by' allowance. Although payment of this allowance was also queried by Treasury, payment was approved 'provided that all the payment criteria .... are fully met'. The CSD at the time, having regard to the unique circumstances, was obviously of the opinion that performing 'overnight on call' at the detention centre was equivalent to performance of a 'sleep-in, stand-by' duty. In this regard, the Commissioner of Correctional Services, Mr. Pang Sung Yuen, in his witness statement (that statement being adopted by him as his evidence-in-chief) said that having regard to the rigours of performing 'overnight on call', the CSD -

      .... had approached the matter not from the point of view of the CSRs but from a pragmatic consideration of the special circumstances of HIDC [High Island Detention Centre].

    8. Certainly, in the proceedings before myself it was emphasised by the 10th lead plaintiff, who had served at a Vietnamese detention centre, that it was often at night that the most noise was heard and the most trouble encountered. This was in contrast to the evidence generally that at other institutions troubles at night were not the norm.

    THE PLAINTIFFS' PERFORMANCE OF 'OVERNIGHT ON CALL' AT VIETNAMESE DETENTION CENTRE

  117. In so far as any of the plaintiffs in the present proceedings may be claiming damages for their performance of 'overnight on call' at Vietnamese detention centres, it is the defendant's case that the decision by the CSD to pay DSOA and thereafter to pay 'sleep-in, stand-by' allowance to its officers at the High Island Vietnamese Detention Centre was wrong. In this regard, the Commissioner of Correctional Services has said the following in his witness statement:

    The payment of these allowances was driven by the circumstances and prevailing conditions in HIDC [High Island Detention Centre] at the material time which include the fact that the Department had taken over the management responsibility from the Police and had run the Centre on the 2-shift system previously adopted by the Police. It was not paid in recognition of the staff's unavoidable additional duties undertaken over and beyond their normal hours of work. The question as to whether the barracks of HIDC were the 'place of work' was not considered by the Department at that time. If the rules and principles governing the payment of DSOA and stand-by duty allowance stipulated under the relevant CSRs were to apply without having regard to the special circumstances of HIDC (including the camp situation in HICD which was vulnerable), the Department's payment of DSOA and later the stand-by duty allowance to HIDC staff was wrong.

    [my emphasis]

  118. For the reasons given in this judgment, that concession of error must, in purely legal terms, be correct. As other witnesses testified, the officers performing 'overnight on call' in the vicinity of the detention centres were not required to carry out any specific duties, they could dress as they wish, watch television, play mahjong, use the facilities of the bar and canteen in the barracks. As such, leaving aside the rigours of having to perform 'overnight on call' at any of the Vietnamese detention centres, I am of the view that the duty was at all times - in strict contractual terms an 'on call' duty and not a form of 'stand-by'.

    THE ISSUE OF LIMITATION

  119. By reason of my findings in respect of what I have called the 'contractual issue', the need to determine the second issue concerning liability, that of limitation, falls away. However, as that issue has been extensively argued something should be said of it.

  120. In terms of s.4(1) of the Limitation Ordinance, Cap.347, actions founded on simple contract may not be instituted after the expiration of six years from the date on which the cause of action accrued.

  121. In seeking to postpone this six year limitation period, the plaintiffs relied on the provisions of s.26 of the Ordinance, those provisions being drawn in the exact same terms as s.32 of the English Limitation Act 1980. Section 26(1) of the Ordinance, so far as it is relevant, reads:

    (1)

    .... where in the case of any action for which a period of limitation is prescribed by this Ordinance, either -

    (a)

    the action is based upon the fraud of the defendant;

    (b)

    any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

    (c)

    the action is for relief from the consequences of a mistake,

    the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

    (3)

    For the purposes of subsection (1), deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

    [my emphasis]

  122. These provisions have been the subject of considerable authority. In 2002, however, the House of Lords gave what must now, I believe, be considered the definitive authority. It did so in the case of Cave v Robinson Jarvis & Rolf [2003] 1 AC 384 in which (at 403E) Lord Scott observed that-

    Subsection (2) [subsection (3) of the Ordinance], however, provides an alternative route. The claimant need not concentrate on the allegedly concealed facts but can instead concentrate on the commission of the breach of duty. If the claimant can show that the defendant knew he was committing a breach of duty, or intended to commit the breach of duty I can discern no difference between the two formulations; each would constitute, in my opinion, a deliberate commission of the breach then, if the circumstances are such that the claimant is unlikely to discover for some time that the breach of duty has been committed, the facts involved in the breach are taken to have been deliberately concealed for subsection (1)(b) purposes.

  123. On the basis of this interpretation, Mr. McCoy accepted that the burden lay on the plaintiffs, on the usual balance of probabilities standard, to establish, first, that there had been a breach of duty (i.e. a breach of contract) by the defendant, second, that the defendant knew it and, third, that the circumstances were such that the plaintiffs were unlikely for some time to discover the breach.

  124. Accepting for the purposes of this judgment only that the test was correctly stated, I am of the view that the plaintiffs have failed in respect of both the first and second propositions, the third then being of no relevance.

  125. For the reasons given in this judgment, I have found that there was no breach of duty (i.e. breach of contract) by the defendant. But if I am wrong in this respect and assuming that there was a breach of contract, on what basis have the plaintiffs attempted to demonstrate that the defendant knew of that breach? The plaintiffs have attempted to do so by reference to certain correspondence.

  126. The first piece of correspondence is a memorandum from the Secretary for the Civil Service addressed to the Commissioner of Correctional Services dated 3 March 1986. In that memorandum, the Secretary for the Civil Service made reference to a letter received from a CSD officer seeking clarification of the 'stand-by' and 'on call' rules. The Secretary then went on to point out certain principles governing the two duties. In doing so, said Mr. McCoy, the Secretary 'made it clear that the option to choose the location for the purpose of 'on call' is exclusively that of the officer.' That, said Mr. McCoy is, as the plaintiffs have contended, the essence of 'on call' and distinguishes it conceptually from 'stand-by'. On my reading of the memorandum, however, the Secretary has said exactly the opposite; namely, that an officer 'on call' is not able at his sole option to choose where he wishes to perform the duty. The relevant portion of the memorandum reads:

    CSR 669 refers to the different manner in which an officer may be placed on-call so that he would be within convenient reach whenever it is necessary to require him to report for actual duty. It does not spell out choices of locations to be opted by the officer who is required to be on-call.

  127. That being the case, Mr. McCoy then had to rely on more recent correspondence; namely, correspondence that took place in or about mid 1988 between the Rennie Committee (which was in the course of its investigations) and the CSD. Mr. McCoy submitted that a study of this correspondence revealed that the CSD was at the time, by way of obfuscation, doing its best to hide the fact that its soi disant duty of 'overnight on call' was to its knowledge in substance a form of 'stand-by'. He suggested that the reason for this 'fudging' by the CSD may have been because it was hoping generally to obtain parity with the police force by way of terms and conditions and in order to achieve that end may have been willing to 'sacrifice' advocating the true position in respect of the regular but onerous duty of 'overnight on call'. Mr. McCoy advocated these submissions with some modesty and I believe he was correct to do so. I have read the relevant material with care and confess that I cannot by any stretch of the language used in that material or its silence in respect of certain issues draw close to the inferences Mr. McCoy would have me draw. I do not suggest that the information given by the CSD was as comprehensive and directly focused as it may ideally have been but nothing in it suggests that the senior management of CSD was concerned that 'overnight on call' may be categorised as a form of 'stand-by' and was- in good faith or bad faith - attempting to avoid the issue. To the contrary, I am satisfied that the CSD was maintaining the traditional stance, one formulated on the basis of the recommendations of earlier salaries commissions and committees.

  128. The correspondence and other written material canvassed by Mr. McCoy was lengthy. In passing, he referred to two memoranda from the CSD to the Rennie Committee dated 13 and 15 July 1988. These, he suggested, were part of the scheme to obfuscate. I have detected nothing of the kind. In its memorandum of 13 July 1988 the CSD was, in my view, plain enough in describing what it then called 'on call' duty and 'stand-by'. In respect of 'on call', the following was said (and effectively repeated in the memorandum of 15 July 1988):

    Staff are required to perform on-call duties in the following manner:-

    (a)

    All staff on the 2nd Shift (lockup) must remain 'on-call' in the area of the institution until they perform the 1st Shift (unlock) the following day. During this period, staff are not allowed to leave the area. This is a must in order to ensure that sufficient number of staff are available in case of untoward emergencies, e.g. disturbance, gang-fight, escape, etc. which call for assistance from off-duty staff. This 'on-call' system means that the majority of staff are required to stay in the area of the institution on alternate days which amounts to 73.5 hours every two weeks. A chart showing the shift system and period of on-call is attached for your reference.

    (b)

    Apart from the above staff, Assistant Commissioners and Senior Superintendents at Headquarters are in fact required to perform on-call duties on weekly basis whereas Senior Superintendents, Superintendents and their deputies in institutions on alternate days.

    In the second memorandum, that of 15 July 1988, the following information was conveyed:

    In fact, all staff of the department are required to perform on-call duties, a majority on alternate days while the others on a rotational basis. In short, approximately 1/3 of the staff perform such duties daily.

    The 'on-call' duty is regarded as a mandatory requirements for all institutions. Staff are not paid the stand-by allowance or granted time-off-in-lieu.

  129. Mr. McCoy suggested that this information gave 'the wholly erroneous impression that almost everyone in CSD, from the Commissioner down to Assistant Officers, had to be 'on call' without any differentiation. I do not see that it says that at all. Paragraph (a) speaks of staff who perform the 'lock-up' shift. The Rennie Committee would have had some idea of what ranks performed that duty or could easily have obtained the relevant information. It is plain, in my view, that the memoranda speak of different types of 'on call' duty.

  130. As to 'stand-by' duty, in the same memorandum the Rennie Committee was told the following:

    In order to provide additional staff to deal with any emergencies, e.g. disturbance, gang-fight, suicide, escape, etc. which may happen at night, a sleep-in stand-by system has been established in all maximum security institutions. Staff performing such duties are required to sleep in the institution, and payable for the Stand-by Allowance.

    In my opinion, that accurately enough defines 'sleep-in, stand-by' duty.

  131. Nor can it be said that the Rennie Committee was ignorant of the concern felt by a number of CSD officers concerning the restrictive nature of 'overnight on call'. Indeed, it introduced the special allowance to compensate officers for the hardship of performing the duty away from home. The Committee received a large number of representations from individual officers as well as representative bodies. By way of example, a letter was received by it in May 1988 which it referred in turn to the CSD for comment. The letter was obviously from a CSD officer and in part read as follows:

    Unless having the permission from the Superintendent, officers going off lock-up shift normally remain in their barracks or quarters for overnight on-call/stand-by in case of emergency and report for unlock shift upon the dawn of next morning. However officers are not paid for this overnight on-call. While an officer is required on-call, his physical movement is highly restricted, that is, he is either at his assigned quarter, the Mess or the vicinity of the prison area. He has to remain sober in order to response to any emergency. Indeed, overnight on-call places considerable strain on the officer's social life. It is also inconceivable for many of his friends that he has to remain at stone's throw distance from the prison after going off-duty.

  132. A point of substance, I believe, was made by Mr. Fok SC, counsel for the defendant, in his closing submissions when he reminded the court that, when asked to comment on the Rennie Committee's final report, the Commissioner of Correctional Services had expressed concern about a number of points including the fact that the majority of staff within the service were required to perform long periods of on call without any compensation. The Commissioner asked for substantial extensions to the proposed special allowance payable to officers performing 'overnight on call'. As Mr. Fok put it: "If he was party to an attempt to mislead the Rennie Committee by hiding the true nature of overnight on-call, it is inconceivable that he would have expressed this concern or made this request."

  133. It should also be mentioned that the body representing CSD officers generally, the Correctional Services Officers' Association, a body aware of the onerous nature of 'overnight on call', wrote to the Rennie Committee on 2 December 1988 stating that, in principle, it accepted the findings and recommendations of the Final Report and that "our members are content that the nature and difficulties of our work have been recognized and adequately reflected in this report in the form of higher remunerations for our staff".

  134. In summary, I am satisfied on the evidence that the plaintiffs' submissions that the six-year limitation period should not apply in this case are without substance.

    MY ORDERS

  135. For the reasons given in the body of this judgment, I am satisfied that the plaintiffs' claims have not been proved. Their claims for damages for breach of contract are therefore dismissed.

  136. I see no reason why costs should not follow the event and I therefore make an order nisi awarding costs to the defendant. That order will be made final 30 days after the handing down of this judgment unless an earlier application is made seeking a different order.


Cases

Lam Yuk-Ming v Attorney General [1980] HKLR 815; Shau Lin Chi v Secretary for Justice [1998] 4 HKC 562; Shau Lin Chi v Secretary for Justice [1999] 2 HKC 585; Suffolk County Council v Secretary of State for the Environment and Another [1984] ICR 882; SIMAP v Conselteria de Sanidad [2001] ICR 1116; Landeshauptstadt Kiel (the City of Kiel) v Jaeger Case C-151/02; Cave v Robinson Jarvis & Rolf [2003] 1 AC 384

Legislations

Civil Service Regulations: CSR1, CSR3, CSR5, CSR665, CSR668, CSR669

Limitation Ordinance, Cap.347: s.4(1)(a), s.26

Limitation Act 1980 [UK]: s.32

Prisons Ordinance, Cap.234: s.2

Prison Rules: s.141(1)

European Council Directive 93/104

Authors and other references

Second Report of Standing Commission on Civil Service Salaries and Conditions of Service, 1979

Rennie Review Committee on Disciplined Services Pay and Conditions of Service, 1988

Memorandum from the Secretary for the Civil Service to the Commissioner of Correctional Services, 3 March 1986

Representations

Mr. Gerald McCoy, SC leading Mr. Benjamin Chain, instructed by Messrs Charles Chu & Kenneth Sit, for the Plaintiffs

Mr Eldred Tabachnik, QC and Mr Joseph Fok, SC leading Mr Daniel Wan, instructed by Department of Justice, for the Defendant


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