FACV Nos. 22 & 23 of 2008

IpsofactoJ.com: International Cases [2009A] Part 2 Case 4 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Dr. K.L. Leung

- vs -

The Hospital Authority

JUSTICE KEMAL BOKHARY PJ

JUSTICE PATRICK CHAN PJ

JUSTICE R.A.V. RIBEIRO PJ

JUSTICE BARRY MORTIMER NPJ

LORD MILLETT NPJ

20 OCTOBER 2009


Judgment

Justice Bokhary PJ

  1. I agree with Mr Justice Ribeiro PJ’s judgment, adding only an expression of my recognition of service in public hospitals as a particularly worthy and arduous way in which to pursue the noble profession of medicine.

    Justice Chan PJ

  2. I agree entirely with the judgment of Mr Justice Ribeiro PJ. I only wish to make two general observations.

  3. Doctors in the public sector have undoubtedly served the Hong Kong community well for decades, particularly at a time when there was a great shortage of doctors. They are expected and indeed required to work extremely long hours. But entitlement for recompense for overtime, be it in the form of time off in lieu, overtime allowance or damages, must be based on the terms of their contracts of employment. And unfortunately this is not part of their contractual entitlements. The payment of honoraria, as its history shows, was not intended to be made as compensation for overtime worked. It was meant as a recognition that doctors employed in the public sector are, faithfully and consistently with the time honoured traditions of the medical profession, willing to attend to the needs of patients without recompense as and when they are required to do so.

  4. Unlike overtime, rest day and statutory holiday are statutory entitlements. They are concerned with rest, not with work. The law provides for a day of rest for an employee on a rest day or a statutory holiday and what he does on that day is a matter entirely up to him. That being the rationale behind these entitlements, notwithstanding the difference in definition between rest day and statutory holiday in the statute, I do not think there should be any difference in the application of the same principle to these entitlements in the present case. In fact, the presence of a statutory prohibition, in the case of a statutory holiday, on payment of wages in substitution for a holiday underlines the legislative intention that like a rest day, it is meant to be a day of rest and absence from work. If an employee is deprived of a rest day or a statutory holiday, he loses a day of rest and should be compensated for such loss. Nominal damages are clearly not the appropriate remedy.

    Justice Ribeiro PJ

  5. In this appeal, the Court is asked to determine the extent, if any, to which doctors employed by the Hospital Authority (“HA”) are entitled to compensation (monetary or otherwise) in consequence of being assigned on-call duties beyond their normal hours of work.

    A. Introduction

    A.1 The parties

  6. On 15 March 2002, proceedings were brought against the HA by 165 doctors in the Labour Tribunal which then transferred the claims to the Court of First Instance. The proceedings have been conducted as a representative action in which three of the claimants, namely, Dr Leung Ka Lau (“Dr Leung”), Dr So Yung Pak (“Dr So”) and Dr Choi Chi Yee (“Dr Choi”) act as the lead plaintiffs, with the other plaintiffs agreeing to be bound “by any determinations of law or principle in the lead cases”. The lead plaintiffs are the appellants in FACV No. 22 of 2008 (“the doctors’ appeal”) and the respondents in FACV No. 23 of 2008, (“the HA’s appeal”). As the issues in the two appeals overlap, it will be convenient to refer to the parties simply as “the doctors” and the HA respectively.

  7. It is common ground that the doctors are employees of the HA and that the Employment Ordinance[1] (“the Ordinance”) is applicable.

  8. Each court hearing this case has been requested to deal solely with questions of law and principle, leaving case-specific factual questions to be determined later and in some other forum in so far as necessary.

    A.2 The doctors’ main claims

  9. It is not in dispute[2] that contractually, the doctors’ normal working hours are stipulated to be 44 hours per week, that is, a 5½ day week working from 9.00 am to 5.00 pm on weekdays and from 9.00 am to 1.00 pm on Saturdays, with Sundays off. Obviously, however, patients in the HA’s hospitals require 24 hours’ care seven days a week and doctors regularly work outside the stipulated normal hours. The particular practice with which the present proceedings are concerned involves the HA’s system of rostering doctors to be on-call so as to be able to respond, as and when necessary, to patients’ needs after normal hours.

  10. Doctors may be rostered to be on what is known as “resident call”, that is, to be on-call while remaining within the hospital’s precincts. Or they may be rostered on “non-resident call”, that is, to be on-call while away from the hospital. We are only concerned with claims relating to non-resident call duties (which I shall refer to simply as “on-call” duties), it being common ground that resident call duties constitute work by the doctors qualifying for recompense in every respect.

  11. As the evidence shows, the pressure on available resources in many units is such that doctors are often required to work very long hours. They regularly assume on-call duties immediately before or after working their normal eight-hour day, spanning the period extending from the end of one normal day to the start of the next. Such on-call duties may fall on a statutory holiday. Moreover, as a result of on-call duties, a doctor may miss out on being granted a statutory rest day.

  12. Being on-call raises different legal issues depending on whether a rest day or holiday is involved. This has led to the doctors’ claims being advanced under four heads, namely:

    1. “the overtime claim” whereby the doctors assert a contractual right to time off or, in default, to monetary compensation, for working on-call after normal hours, where no rest days or holidays are involved;

    2. “the rest day claim” whereby the doctors seek to enforce the statutory right to rest days which, they contend, they have been deprived of by operation of the on-call system and not replaced;

    3. “the holiday claim” whereby the doctors seek to enforce their statutory and contractual rights to public holidays which they say they have similarly been deprived of; and

    4. “the additional overtime claim” whereby the doctors contend that work done beyond the normal eight-hour day when rostered for on-call duties on a day which falls on a statutory holiday or on what ought to be a rest day (agreed to be treated for analytical purposes as each Sunday), entitles them to compensation for overtime in addition to compensation for the lost rest day or holiday.

  13. The doctors seek declarations of their claimed entitlements with a view to asserting those rights in the future and damages in relation to alleged past breaches. Accepting the constraints of the Limitation Ordinance,[3] the doctors do not assert any claims regarding alleged breaches occurring before 15 March 1996, being claims arising more than six years before proceedings were instituted in the Labour Tribunal.

    A.3 The decisions in the courts below

  14. At the trial, Stone J dismissed the overtime claim and the additional overtime claim. [4] He found for the doctors on the rest day and holiday claims and ordered that damages should be assessed by reference to the hours actually worked on rest days and statutory holidays at their then prevailing salaries. He also ordered that credit should be given for any half day off “or other administrative relief” that the HA may have given a particular plaintiff. Declaratory relief was refused.

  15. The Court of Appeal[5] (with Yuen JA dissenting in certain respects) upheld Stone J’s dismissal of the overtime and additional overtime claims. It also upheld his Lordship’s judgment regarding liability on the rest day and holiday claims but varied his order as to how damages should be assessed, holding that:

    1. a doctor “on non-resident call on a rest day or statutory/public holiday but not called upon to provide patient treatment that day” should only receive nominal damages for the breach; and

    2. a doctor who “provided patient treatment as a result of having been called or contacted that day” should be awarded damages for the entire lost rest day or holiday, giving credit for any whole day granted under the HA’s Compensatory Leave Scheme.

    Like Stone J, the Court of Appeal (with Yuen JA differing on this point) refused declaratory relief.

    A.4 The issues before this Court

  16. The first issue involves the doctors’ challenge to the Court of Appeal’s rejection of the overtime claim. The doctors argue that they have a contractual entitlement to time off for the time worked while rostered on-call and, in default of being given time off, they assert an entitlement to damages. The same argument is advanced in relation to the additional overtime claim. The HA contends that there is no contractual entitlement to any overtime and alternatively, that if such an entitlement exists, it has been extinguished by the HA’s payment of honoraria to the doctors (to which I shall return). I shall call this “the overtime issue”.

  17. It should however be noted that while the legal issues on overtime remain the same, the quantum of the claim advocated by the doctors under both heads of overtime became much reduced in this Court. Mr Denis Chang SC, appearing for the doctors,[6] indicated that he would not pursue the argument previously advanced that the mere fact of being rostered on non-resident call constituted work attracting compensation under the overtime claim and the additional overtime claim. Recompense for overtime worked would only be claimed in relation to the time estimated to have actually been devoted to providing treatment to patients while thus on-call. This was estimated at 10% or 20% of the time spent on-call and led to a drastic reduction in the sums claimed. Thus, Dr Leung’s claim at the trial[7] and in the Court of Appeal[8] was for a total of $20,929,836 in respect of overtime and additional overtime for the period between 15 March 1996 and 30 June 2005. On his estimates provided to the Court, the total overtime and additional overtime claim was reduced to $2,726,016.

  18. The doctors also adopted two alternative fall-back positions in their overtime claims.

    1. The doctors’ main argument is that theirs is an open-ended entitlement to time off in lieu (or damages in default) capable of being accumulated without limit and unaffected by receipt of payments of honoraria.

    2. The first fall-back position involves adopting the approach of Yuen JA in the Court of Appeal[9] which entails recognizing a right in the doctors to time off for overtime worked unless honoraria have been received and – an important point for the future – recognizing a right to decline the honorarium and to opt for time off instead.

    3. The second fall-back position involves adopting an approach attributed to Le Pichon JA[10] who, according to Mr Chang, held that a right to time off in recompense for overtime worked exists provided that operational requirements permit such time off to be taken within 6 months, failing which, the right expires.

  19. The second issue concerns the rest day claim, but only regarding the proper approach to the assessment of damages since the HA accepts that a breach of its obligations under section 17 of the Ordinance (discussed further below) occurs in cases where on-call rostering results in a failure to grant a rest day.

    1. The doctors seek to overturn the Court of Appeal’s decision that doctors rostered on-call so as to be deprived of a rest day are only entitled to nominal damages if it turns out that they are not in fact required to provide any patient treatment on that day. This will be referred to as “the nominal damages issue”.

    2. The HA, on the other hand, challenges the Court of Appeal’s decision that a rostered doctor who is in fact called on to provide patient treatment on what might otherwise have been a rest day, is entitled to be compensated for loss of the entire day. The HA argues that such compensation should be limited (as Stone J had held) to the hours actually worked, that is, to the time actually spent providing treatment to patients. I shall call this “the entire day issue”.

  20. Thirdly, the HA contends that the Court of Appeal was wrong not to distinguish between rest days and statutory holidays since they do not share the same statutory definition. In consequence, the HA argues, compensation is claimable in relation to statutory holidays only if and to the extent that the rostered doctor actually has his holiday interrupted by being required to administer patient treatment. The doctors naturally seek to uphold the Court of Appeal’s decision that compensation in such cases should cover the entire day. I shall call this “the holiday compensation issue”.

  21. Three ancillary issues also arise:

    1. Was the Court of Appeal right (as the doctors accept) to require the doctors to give credit against their rest day and statutory holiday claims only for whole days off administratively granted to them under the HA’s Compensatory Leave Scheme? Or is the HA correct in asserting that, additionally, half-days off granted under that Scheme should also be taken into account? (“The Compensatory Leave Scheme issue”)

    2. Are interns employed by the HA in a different position from fully qualified doctors in relation to the overtime and additional overtime claims? (“The intern issue”)

    3. Should the doctors be granted declaratory relief?

    B. The overtime issue

    B.1 The background

  22. On 1 December 1991, the HA took over the management and control of public hospitals in Hong Kong pursuant to the Hospital Authority Ordinance,[11] funded by Legislative Council appropriations. Doctors, who had all previously been civil servants, were given the option of taking up employment with the HA, Dr Leung being among those who agreed to the transfer. Dr Choi and Dr So joined the HA as interns in 1997 and 1999 respectively and remained in its employment upon full qualification. In 2004, Dr So resigned and entered private practice.

  23. There is no doubt that in the late 1980’s, Hong Kong’s public health care system was seriously under-resourced with doctors and other personnel having to bear the brunt of the system’s inadequacies by working unacceptably long hours. In September 1988, Dr Dickson Chang, writing as Chairman of the Government Doctors’ Association, warned that the “perennial problem” of losing experienced staff had become critical and threatened the system with “imminent collapse”. He complained that doctors were averaging 80 hours per week and working “on all days of the year irrespective of weather, holidays, festivals and weekends” to the detriment of their social and family lives. He called for a revision of the pay scale and proposed that doctors should be paid overtime pay or a professional allowance “at 20% average for all grades” which he indicated was “acceptable to staff”. He contended that “no doctor should be safely allowed to work continuously in the hospital for more than 16 hours and there must be at least 80 hours of total duty and call free rest per week”. It is self-evident that it is a lamentable situation, bad for patients and doctors alike, if doctors are consistently and severely overworked.

  24. The government, and after 1991 the HA, recognized the highly unsatisfactory state of the system and took various measures to address it. These were measures aimed at stemming the outflow of doctors from the public service and at improving their working conditions. They included the implementation of the honorarium scheme, the Compensatory Leave Scheme, pay increases and, more fundamentally, substantial increases in the resources channelled into public health services.

    B.1a The honorarium scheme

  25. In its immediate response to Dr Chang,[12] the government proposed the payment of an “honorarium” to doctors, stating:

    It has been accepted in principle that doctors who consistently have to work unusually long hours in order that certain services are properly manned due to shortage of manpower, should receive remuneration in the form of an honorarium.

  26. In its paper dated 8 March 1989 seeking funding for the scheme from the Legislative Council’s Finance Committee, the government acknowledged that:

    Due to the acute shortage of medical staff, a situation exacerbated by the high wastage rate of experienced medical officers in the past two years, the majority of medical staff on on-call duties in certain very busy clinical units in government and subvented hospitals have to work consistently unusually long hours in order to maintain adequate medical supervision of patients outside normal office hours ....

    It stated that the on-call system was essential to maintain 24-hour patient care but recognized that this had led to doctors being on-call for very long periods, its survey of five major government hospitals revealing that each medical officer was on-call for an average of 87 hours during October 1988. It continued:

    The Secretary for the Civil Service has advised that although civil servants in the administrative and professional grades, irrespective of rank and pay points, are not eligible for overtime allowances and honoraria for overtime work under normal rules, the exceptional circumstances described .... above justify the payment of an honorarium. The consistently and unusually long hours of work undertaken by the medical staff concerned are significantly in excess of any normal overtime work normally expected of professional staff ....

  27. The proposal which the paper went on to make was for honoraria to be paid to the doctors concerned at fixed rates, namely, $3,500 per month for medical officers and senior medical officers working in specified units considered particularly busy, and $1,750 for those working in less busy units.[13] At that time, a payment of $3,500 represented about 16% and 11% of the average salary of medical officers and senior medical officers respectively.

  28. The proposal was approved by Finance Committee on 8 March 1989 and on 24 April 1989, the Hospital Services Department issued a circular explaining the scheme which it described as “a temporary measure to compensate the substantial amount of overtime work performed by [doctors] in order to maintain adequate medical services for patients.”[14]

  29. The measure has proved more durable than then anticipated. The scheme was continued by the HA and the honorarium is still being paid to eligible doctors at the same rates as those set in 1989 which, in the light of substantially increased salaries, now appear to involve, as Mr Chang puts it, token sums of money.

    B.1b Better pay and prospects

  30. However, the evidence shows that in tandem with introduction of the honorarium scheme, public doctors were upgraded on the government pay scales. Thus, on 29 March 1990, a Salary Structure Review report[15] noted that promotion prospects had been enhanced by the creation of over 100 senior medical officer posts and 40 consultant posts and recommended positioning the starting pay of doctors one or two points higher on the pay scale and then providing them with a three-increment jump on completion of three years’ service and a further three-increment jump after an additional year. It added:

    .... we consider that there is a need for improving the general working conditions of doctors, especially those in hospitals. This includes .... reducing their heavy workload which has been exacerbated by the shortage of staff and the expansion of services. We realize that this objective may not be achieved in the short term as it hinges on both success in retaining staff and an increase in the supply of medical graduates from the Universities. In the meantime, we consider that the existing honorarium should continue to be payable in recognition of the consistently long hours worked.

    B.1c The Compensatory Leave Scheme

  31. On 23 October 1995, the HA implemented the Compensatory Leave Scheme which is designed to compensate an employee who “has worked overtime either for a full day or for less than a full day on a statutory holiday”.[16] It referred to this as supplementing and not affecting the payment of honoraria.

    B.1d More medical resources

  32. The evidence also indicates that substantial progress was made in addressing the fundamental problem of inadequate manpower resources. Thus, in November 2000, the HA noted that more than 300 new doctors had been recruited that year.[17] And in January 2002, the Health and Welfare Bureau informed Legco that the HA had recruited 312 doctors in 2000/2001 and another 303 doctors in 2001/2002, the total number of doctors having been increased by about 12% since March 2000.

  33. The increase in staff numbers has continued. Thus, in April 1989, it was noted in Standing Circular No 7/89 referred to above that there were then “nearly 2,500 doctors employed in the public sector” whereas, at the time of the trial before Stone J in January 2006, some 4,600 doctors were employed by the HA. Several new hospitals have also been established.

  34. The developments outlined above indicate that there have been significant improvements in the system. Nonetheless, doctors are still being subjected to long – sometimes unacceptably long – hours of on-call duty and are still being deprived of rest days and holidays without substituted days off. With about 93% of patients in Hong Kong being dealt with by the public sector, the HA is constantly trying to catch up with a burgeoning demand for medical services, spurred by a population that is both ageing and more assertive in its demands for a quality public health system.

  35. It must however be emphasised that it is not for the Court to pass judgment on the adequacy or otherwise of the resources allocated to our public health services. Nor is it the role of the Court to decide in this appeal what does or does not constitute an acceptable level of overtime to be worked by doctors in public service. Other channels exist for such issues to be debated. The Court is simply concerned with determining what, if any, legal entitlements are conferred on the doctors by statute and by their contracts of employment. It is against the background described above that those legal issues fall to be considered.

    B.2 The contractual provisions

  36. It is common ground that the overtime claim depends on the proper construction of the doctors’ contracts of employment and that the contractual documents consist of their letters of appointment which incorporate the provisions of the HA’s Human Resources Policy Manual (“HRPM”) in its 1994 edition, its Human Resources Administration Manual (“HRAM”) and its rules and regulations promulgated from time to time, including the Circulars on matters such as the honorarium scheme referred to above.

  37. The parties also accept (in my view correctly) that construction of those documents should be approached applying the well-known principles stated in Jumbo King Ltd v Faithful Properties Ltd,[18] where Lord Hoffmann NPJ described the process as “an attempt to discover what a reasonable person would have understood the parties to mean” which involves “having regard, not merely to the individual words [the parties] have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve”. Furthermore, as his Lordship stated in Investors Compensation Scheme Ltd and West Bromwich Building Society,[19] the interpretation of a document involves “ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”.

  38. Applying that approach to the contractual documents in the present case, are they properly to be construed as conferring on the doctors an entitlement to time off to match time spent providing patient treatment while on-call outside normal working hours?

    B.3 The contracts construed

    B.3a The letters of appointment

  39. The letters of appointment are the starting-point. In each case, the letter states that the employment is contracted upon its terms and on the terms of the HRPM and the HA’s rules and regulations, with the letter of appointment being the prevailing document.

  40. In each case the letter identifies the post to which the doctor is appointed and states that he is required to perform the duties associated with such post or such duties as may be assigned by the medical unit in which he works.

  41. Each letter also gives details of remuneration. Thus, Dr Leung’s letter dated 26 June 1995, appoints him at point 47 on the pay scale, identifying his then basic monthly salary and states that he is also entitled to a cash allowance equivalent to 60% of that basic salary. In later letters of appointment, for instance, Dr So’s letters dated 19 June 2000 and 7 May 2003, additional items of remuneration form part of the package. Apart from specifying Dr So’s basic salary and point on the pay scale, the letters state that he is eligible for a monthly allowance, a contract gratuity on completion of the contract and housing benefits.

  42. The letters also stipulate the hours of work and make reference to the honorarium in the following terms:

    Your normal hours of work will be 44 hours per week but you are expected to work overtime and perform on-call duties in line with prevailing policies depending on the exigencies of your work and the operational requirements of individual specialty. At the absolute discretion of hospital management, a fixed rate honorarium may be payable to you in recognition of the additional work done. Your Head of Department/Unit/Section will advise you of your work schedule. In addition, you may also be required to work shifts to provide 24-hour coverage.

  43. In my view, taking them on their own, the letters of appointment provide no discernible basis for the doctors’ overtime claim. They make it clear that the doctors are expected to work overtime and to perform on-call duties, sometimes working on shifts to provide 24-hour coverage, nowhere suggesting that there is to be any extra recompense for such work. There is certainly no suggestion that the doctors are to be recompensed by reference to hours worked beyond normal office hours. Instead, the letters all require the doctors to devote their time according to the exigencies of their work and the operational requirements of each specialty. A system of remuneration for work dictated by patient needs rather than one calculated by reference to normal office hours is what one would expect in relation to doctors discharging their professional obligations. Taken on their own, the letters suggest that the package offered and accepted by the doctors consists of the remuneration and benefits they specify, in return for the work stated, including overtime, on-call and shift duties.

    B.3b The doctors’ reliance on the HRPM and HRAM

  44. The doctors’ main argument on the overtime issue relies on the provisions of the HRPM and the HRAM. It runs as follows:

    1. The 44 normal working hours stipulated in the doctors’ letters of appointment are the “conditioned hours of work” referred to in the HRPM and HRAM.[20]

    2. In clause E4.1.1, the HRPM defines “overtime” as “work undertaken over and above an employee’s conditioned hours of work”. Thus, work done by doctors over and above their 44 conditioned hours per week constitutes “overtime”. For these purposes, “work undertaken” involves any treatment given to a patient.

    3. That such overtime is recompensed – by time off in lieu – is made clear by clause E4.2.3 which states:

      Overtime work should normally be recompensed by time-off in lieu. Where this is operationally impracticable within a reasonable period from the date on which the overtime is worked, an overtime allowance may be paid to eligible employees. An employee who qualifies for an Overtime Allowance may, instead of being paid the Overtime Allowance, opt to take time-off in lieu at a later date mutually convenient to the employee and the management.

    4. E4.2.3 is the crucial clause. While it is accepted that doctors do not qualify for payment of an overtime allowance[21] so that the remainder of the clause is not addressing doctors’ entitlements, the right to recompense by being given time off in lieu is spelt out in the first sentence, which should be read as applying to all employees and not just to those who are eligible for the overtime allowance.

    5. It follows, so the doctors argue, that the HA’s failure to give them “time off in lieu” for the hours worked by them when on non-resident call outside their normal conditioned hours of work is a breach of their employment contracts which sounds in damages. They also seek a declaration of their entitlement to such time off.

    6. Their right to time off in lieu is substantial and cannot possibly have been intended to be extinguished by receipt of honoraria which are mere token payments and merely discretionary, since it is entirely up to the HA to decide which units qualify for such payments. In any event, the doctors say that they are prepared to give credit for honoraria received to be set off against damages for past breaches and are prepared to forgo their receipt in future, taking time off instead.

    B.3c The proper construction of the HRPM provisions

  45. For a number of separate and cumulative reasons, I am unable to accept the doctor’s main argument of construction.

    B.3c(i) The first sentence of clause E4.2.3

  46. As noted above, crucial to Mr Chang’s argument is the first sentence in clause E4.2.3 which states: “Overtime work should normally be recompensed by time-off in lieu”. Those are the words which, he submitted, confer the necessary entitlement on the doctors. In my view, that sentence is quite incapable of bearing the weight of the argument sought to be founded upon it.

  47. It is convenient once more to set out clause E4.2.3 in full as follows:

    Overtime work should normally be recompensed by time-off in lieu. Where this is operationally impracticable within a reasonable period from the date on which the overtime is worked, an overtime allowance may be paid to eligible employees. An employee who qualifies for an Overtime Allowance may, instead of being paid the Overtime Allowance, opt to take time-off in lieu at a later date mutually convenient to the employee and the management.

  48. The first sentence cannot be read in isolation from the rest of the clause. It is followed by the second sentence which refers to and expressly qualifies the first, addressing the position “Where this is operationally impracticable within a reasonable period”. The word “this” is obviously a reference to the “normal” recompense of time off in lieu mentioned in the first sentence. What the second sentence tells us is that where it is operationally impracticable to grant such time off within a reasonable time, the prescribed course is to pay an overtime allowance to eligible employees. The third sentence goes on to qualify in turn the second sentence by conferring on eligible employees an option to take time off in lieu at a later date.

  49. The first sentence is therefore an essential part of the overall scheme of clause E4.2.3. It is concerned with prescribing the preferred option while the remainder of the clause stipulates what should follow if that option is unavailable. Time off is the first option where overtime is worked, expressed in terms of what should “normally” happen. The clause then caters for what should happen if “this” is impracticable. It does so by prescribing payment of an overtime allowance in such cases while giving the eligible employee the option of taking time off at a later, mutually convenient date. Read as part of the clause as a whole, the first sentence, like the rest of E4.2.3, is concerned with regulating the position of HA employees who qualify for overtime allowances. It does not create a separate entitlement for ineligible employees.

  50. Nowhere in E4.2.3 is there any mention of employees other than those eligible for payment of an overtime allowance. Nor is there any mention of what is to happen where time off cannot practicably be given to employees who, like the doctors, are ineligible for overtime allowance – a most surprising omission if such employees were intended beneficiaries since the draftsman was obviously alive to the need for provision to be made for the operational impracticability of time off when dealing with eligible employees.

    B.3c(ii) Clause E4.2.3 in its historical setting

  51. Both sides invited the Court to construe the contracts against the background of earlier employment provisions applicable to doctors working in the public sector. I do not think it proper to have regard to the Civil Service Regulations applicable prior to the HA’s takeover of the doctors’ employment (much less to the CSRs in force after such takeover) because the HA was self-evidently making a fresh start and exercising autonomy in determining its own rules and regulations (as the letters of appointment indicate). However, it would, in my view, be legitimate to take into account the 1991 version of the HRPM, at least in Dr Leung’s case, since that version had originally formed part of his contract of employment with the HA and forms part of the background knowledge available to the parties at the time of entering into the later contracts incorporating the 1994 edition of the HRPM.

  52. In my view, the edition of the HRPM dated 26 November 1991 goes a long way towards dispelling any ambiguity that might exist regarding the effect of the first sentence in clause E4.2.3 as it appears in the 1994 edition.

  53. The 1991 edition[22] contains a definition of overtime as work undertaken over and above an employee’s conditioned hours of work which is identical to that found in the 1994 edition. However, the 1991 edition proceeds in its clause E4.2.1 to state: “Overtime Allowance is to compensate employees for the overtime worked”. In other words, it makes payment of the allowance the preferred or first option.

  54. As with the 1994 edition, only employees at or below a specified pay scale point are eligible for an overtime allowance, doctors being excluded.[23]

  55. The 1991 edition then expressly provides in its clause E4.3.5 under the heading of “Eligibility” that:

    No time-off in lieu will be recompensed if the overtime does not qualify for Overtime Allowance.

  56. The 1991 edition carries on to provide in its clause E4.3.6 that:

    An employee who qualifies for an overtime allowance may, instead of being paid the overtime allowance, opt to take time off in lieu at a later date mutually convenient to the employee and to the hospital management.

  57. It therefore makes time off in lieu the secondary option, open only to employees eligible for the overtime allowance. Plainly, none of this affected doctors who were ineligible for overtime allowance. They were not being given any entitlement to time off in lieu since that form of recompense was only available to employees eligible for an overtime allowance. E4.3.5 made this doubly clear by expressly excluding the grant of time off in lieu in cases where there was no entitlement to an overtime allowance.

  58. Mr Chang questioned the meaning of clause E4.3.5 (which, as we shall see was reproduced in a different place in the 1994 edition), submitting that it is overtime work and not “time off in lieu” which is to be recompensed. The sentence in the clause is no doubt elliptical. But read in the abovementioned context, it must plainly be understood to be saying that no time off in lieu would be recompensed for overtime work done if the overtime work does not qualify for overtime allowance.

  59. It can therefore readily be seen that the significant change which was made in the 1994 edition was to relegate the payment of overtime allowances from the first to the second option as the means of recompense for overtime work done. That is what the first sentence in clause E4.2.3 conveys by stipulating that “Overtime working should normally be recompensed by time off”. Viewed in this context, it becomes clear that first sentence is not intended to confer a fresh, free-standing entitlement to time off in lieu upon doctors ineligible for the overtime allowance. It seeks merely to re-order the preferred modes of recompense for overtime in relation to employees who are eligible for the allowance.

    B.3c(iii) The problem of accumulated time off

  60. As noted above, the doctors’ main argument on construction is that their contracts give them an open-ended entitlement to time off in lieu (or damages in default) capable of being accumulated without limit. That proposition has produced some startlingly large claims for accumulated time off.

    1. At the trial and in the Court of Appeal, Dr Leung asserted an entitlement to 3,433 days off pursuant to his overtime claim and additional overtime claim. Added to the 254 days and 70 days claimed in respect of rest days and holidays, he asserted a total entitlement of 3,757 days off – that is, 10.3 years off – accumulated during the 9.2 year period from 15 March 1996 to 30 June 2005.

    2. Dr Choi’s overtime and additional overtime claims were for a total of 1,146 days off which, together with her rest day and holiday claims of 196 days and 68 days respectively, came to an asserted entitlement of 1,410 days (or 3.8 years) off.

    3. Dr So’s comparable claims were for a total entitlement of 693 days or 1.9 years off.

  61. Even on the reduced figures placed before this Court in respect of his overtime and additional overtime claims,[24] Dr Leung asserted a pre-writ entitlement of 39.75 days per year and a post-writ entitlement of 67 days per year (in addition to his rest day and holiday entitlements). The claims of Dr Choi and Dr So are for entitlements pre-writ of 175 days and 145 days per year respectively and post-writ of 101 days and 50 days per year respectively (again in addition to their rest day and holiday claims). I assume that the doctors also maintain their additional entitlements to annual leave.

  62. The sheer size of the overtime and additional overtime claims undermines their plausibility. It cannot seriously be suggested that any public hospital is able to function on the basis of such time off in lieu entitlements. It stretches credulity beyond its limits to suggest that the parties ever intended such entitlements to be part of the practical objects achieved by their employment contracts.

  63. It is telling that the HRPM expressly places stringent limits on the accumulation of annual leave. Thus, relevant HA employees are entitled to 21 days’ annual leave if they have less than 10 years’ service and to 28 days’ leave after 10 years’ service or more.[25] “Accruement” of such leave is permitted if an employee is unable to take leave due to operational needs but this is subject to the minimum requirement of taking at least ten days’ leave in a year of which 7 days must be consecutive.[26] In the following year, the employee must take any leave carried over as well as the minimum ten days of leave earned in the current year. He might exceptionally be allowed further to carry over untaken annual leave, but only with the approval of the HA’s Chief Executive or the Hospital Chief Executive while taking the minimum 10 days’ leave for the current year.[27] In any event, accrued leave is capped at a maximum of 32 days and 46 days for employees with under 10 and with 10 or more years’ service respectively.[28] In the alternative (subject to taking the minimum 10 days’ leave in any event), an employee “may be given an option .... to encash the untaken annual leave”.[29]

  64. Those provisions demonstrate a contractual intention which is wholly inconsistent with permitting the open-ended accumulation of time off. If it had been the parties’ intention that doctors should have an entitlement to time off for overtime worked while on-call, it is inconceivable that similarly stringent caps on accumulating such time off would have been omitted. Their absence is a strong indication that no such entitlement exists.

  65. Mr Chang was well aware of the difficulties placed in the way of the doctors’ main argument by the problem of accumulated time off. In his printed case, he submitted that “there is no conceptual difficulty for [time off in lieu] to be accrued, subject perhaps to a maximum number of days; and in excess thereof to be encashed”. The proviso in the latter part of this submission amounts to an invitation to the Court to invent the equivalent of the annual leave capping mechanisms laid out in detail in Chapter F1 of the HRPM referred to above. It is obviously not open to the Court to manufacture such provisions and the submission merely serves to highlight the absence of what would have been an essential clause if the doctors’ main argument were sound, underlining the implausibility of that argument.

    B.3c(iv) Clause E4.4.3

  66. As we have seen, the 1991 edition contained clause E4.3.5 which provided that:

    No time-off in lieu will be recompensed if the overtime does not qualify for Overtime Allowance.

    I have construed this as an elliptical sentence which should be understood as referring to time off in lieu recompensed “for overtime work done”.

  67. In the 1994 edition, the identical words appear, but they have been moved from the section headed “Eligibility” in the 1991 edition to the section headed “Basis of Calculation” (of overtime allowances) in the later edition. The relevant provision (E4.4.3) now states:

    Overtime work is payable after one hour’s work either at the start or at the finish of a shift. Thereafter, overtime is payable for the actual time worked rounded off to the nearest half-hour. No time-off in lieu will be recompensed if the overtime does not qualify for Overtime Allowance.

  68. Mr Chang submits, and I agree, that moved to its present place, those words must be understood to concern merely the mechanics of totting up overtime allowances and are no longer concerned with addressing eligibility for time off in lieu. The clause must now be understood to be stating that “left-over” periods of overtime which might otherwise have been recompensed by time off in lieu but which are excluded from the calculation of overtime allowance by the provisions of E4.4.3, are not subsequently to be relied on as a basis for claiming recompense by way of time off in lieu.

  69. It follows that this move eliminates from the 1994 edition a provision which had been a clear indication (among others) in the 1991 edition that persons not entitled to an overtime allowance are excluded from recompense by way of time off in lieu for overtime work done. However, the same conclusion is arrived at on the other grounds presently being discussed.

    B.3c(v) The six-month expiry period as a fall-back position

  70. Mr Chang’s adoption as a fall-back position of what he submits is Le Pichon JA’s suggestion that a positive obligation exists to grant time off in lieu for overtime worked, subject to such entitlement expiring if not enjoyed within six months, was an attempt to meet the problem of unbridled accumulation. It is not clear that that proposition is properly attributable to Le Pichon JA but in so far as her Ladyship was indeed putting forward the same, I am, with respect, unable to accept it.

  71. As we have seen, clause E4.2.3, which is central to the doctors’ claim, provides that overtime worked is normally recompensed by time off in lieu and then goes on to stipulate that where this is operationally impracticable within a reasonable period from the date on which the overtime is worked, the eligible employee is to have the option of being paid the overtime allowance or having time off deferred to a later, mutually convenient, date. That clause provides no basis for suggesting that a right to time off in lieu with a built-in six-month “use-by date” ever came into existence. The clause does not mention six months, but refers to impracticability with “a reasonable period”. Moreover, at the end of such a period of impracticability no right is extinguished. The clause merely proceeds to offer as the second option of recompense, payment of an overtime allowance to eligible employees. Where then does the six-month notion come from?

  72. It appears to derive from construing clause E4.1.5 in the HRAM dated May 2005 as producing, in combination with clause E4.2.3 of the HRPM, the six-month entitlement contended for. Clause E4.1.5 states:

    Any time off in lieu should, as far as applicable, be taken within six months from the date of overtime work.

  73. I cannot accept such a construction. Clause E4.1.5 is not concerned with creating or defining an entitlement to time off in lieu or an overtime allowance. What the relevant HRAM chapter sets out are rules dealing with how time off in lieu is to be quantified and the manner in which it should be taken. In doing so, it assumes that the employee being given such guidance is eligible for the benefit. Thus, it stipulates, for instance, that time off in lieu “should be granted as compensation for approved overtime work, based on actual duty hours that have been worked which should exclude meal breaks, travelling time to and from employee’s home to working places.”[30] It is in that vein that E4.1.5 states that time off in lieu should “as far as applicable” be taken within six months from the date of overtime work. The HRAM provision therefore cannot be construed as part of a contractual definition of a time-limited entitlement to time off in lieu. This fall-back position must accordingly be rejected.

    B.3c(vi) The fall-back position based on Yuen JA’s judgment

  74. The other fall-back position adopted by Mr Chang is founded on the passage in Yuen JA’s judgment[31] in which her Ladyship held that:

    .... there should be declarations that doctors whose contracts are governed by clause E.4.2.3 would be entitled to time-off for overtime worked as the primary recompense, but where this is operationally impracticable within a reasonable period from the date on which the overtime is worked (which period would have to be determined objectively), then the doctors in units under the Honorarium Scheme should be entitled to the flat rate payment under that Scheme. If however a doctor opts not to accept the honorarium, then he may opt to take time-off at a later date mutually convenient to him and the management. For doctors in units not subject to the Honorarium Scheme, they would be entitled to compensation for overtime quantified pro rata to their salaries.

  75. With respect, I cannot accept the correctness of this approach. It impermissibly involves the re-writing of the contract to insert a new clause fashioned to mirror E4.2.3 in which the overtime allowance is replaced by the honorarium. The honorarium scheme is discussed in detail above.[32] The honorarium is payable automatically to doctors working in eligible units and, unlike the overtime allowance, does not depend on whether time off in lieu cannot practicably be granted. Nor has there ever been any basis for suggesting that doctors are entitled to decline the honorarium and to opt for time off instead. This fall-back position untenably postulates the existence of such features without any contractual basis.

  76. Both fall-back propositions rest on the premise that the first sentence of E4.2.3 does confer an entitlement to time off in lieu to the doctors and each then endeavours to suggest how such entitlement may be given effect. In the preceding discussion, I have rejected that premise, holding that that is not the effect of the much-discussed first sentence. It necessarily follows that on this ground as well both fall-back positions must be rejected.

    B.4 Conclusion on the overtime issue

  77. For the foregoing reasons, it is my view that there is nothing in the HRPM, the HRAM or the HA’s rules and regulations to displace the position evident in the letters of appointment which take effect as the prevailing contractual document. The overtime and additional overtime claims are without foundation and accordingly fall to be dismissed.

  78. In the light of this conclusion, the HA’s submission that any entitlement to time off in lieu is satisfied or extinguished by payment of the honorarium does not arise. As the history of the honorarium scheme discussed above shows,[33] honoraria were not paid to satisfy any perceived or actual entitlement to time off in lieu. The payments represented merely an acknowledgment of the unusually long hours worked by doctors without recompense, whether by way of overtime allowance or otherwise, and were made with a view to persuading doctors to remain in the public health service notwithstanding the heavy, unrecompensed demands made upon them.

  79. It is also unnecessary to deal separately with the intern issue. Interns are contractually in no better position than the doctors. Their appeal on the overtime claims must be dismissed alongside the claims of fully qualified doctors.

    C. The rest day claim

    C.1 The basis of the HA’s liability

  80. The doctors’ rest day claim is based on rights conferred by the Ordinance. Such rights take effect as contractual terms implied by law or by modifying existing terms in the relevant contracts of employment. The obligation on employers to grant rest days is provided for in Part IV of the Ordinance in which section 17 states as follows:

    1. Subject to the provisions of this Part, every employee who has been employed by the same employer under a continuous contract shall be granted not less than 1 rest day in every period of 7 days.

    2. Rest days shall be in addition to any statutory holiday, or alternative holiday or substituted holiday, to which an employee is entitled under section 39.

  81. Section 2 tells us what granting a rest day requires, defining the concept as follows:

    rest day” means a continuous period of not less than 24 hours during which an employee is entitled under Part IV to abstain from working for his employer.

  82. Accordingly, a day when an employee is not entitled to abstain from working for his employer does not constitute a rest day. When a doctor is on non-resident call it is common ground that he must remain within 30 minutes of the hospital; he must not drink alcohol; and he must remain mentally ready to respond to calls for his services. Clearly, when a doctor is on-call, he is required to provide patient treatment should the need arise. He is not entitled to abstain from working for the HA. It follows that a day rostered on-call cannot qualify as a rest day under the Ordinance. It also follows that rostering doctors on call may result in a failure to grant them one rest day in every period of seven days as required by section 17 and that such a failure would constitute a breach of the HA’s obligations.

  83. In this Court, the HA accepts that where such a situation arises, it is in breach, hence the issues outstanding between the parties concern only the proper assessment of damages.

    C.2 The nominal damages issue

  84. Mr Adrian Huggins SC[34] sought to defend the Court of Appeal’s decision in relation to nominal damages. The argument is that where a doctor rostered on-call is not in fact called upon to work, he is able to engage in his own activities on the relevant day without interruption and therefore suffered no loss so that nominal damages are appropriate in such cases.

  85. That argument is, with respect, plainly fallacious. The doctor’s loss in such a case is the loss of a rest day, that is, of a day when he should have been entitled to abstain from working for the HA over a continuous 24-hour period. His complaint is that he was not granted such a day, being placed on-call instead. The fact that he may or may not actually have been required to treat any patient during that on-call day is beside the point. Missing a rest day involves a real and substantial loss. Nominal damages, which are awarded where there has been a breach but no actual loss,[35] are therefore quite inappropriate. The damages awarded should aim to place the doctor in the position he would have been in if the HA had duly granted him a rest day in accordance with its obligations under section 17. He should therefore, if practicable, be granted an alternative day off. Where this is impracticable, he is entitled to damages designed to compensate him for the entire day lost.

  86. Mr Chang has submitted that a practical measure of damages acceptable to his clients would be payment of the equivalent of a full day’s wages (at the doctor’s then applicable salary) where a rest day has been missed and cannot practicably be replaced by an alternative day off. In my view, the doctors are plainly entitled to such relief as a matter of practical justice and are entitled to succeed in their appeal on the nominal damages issue.

    C.3 The entire day issue

  87. It follows from the foregoing discussion that the HA must fail in its appeal against the Court of Appeal’s decision that doctors who have actually worked on what ought to have been a rest day are entitled to be compensated on the basis of the loss of an entire day.

  88. As stated above, my view is that doctors are entitled to compensation for loss of a whole day even if they are on-call without being required to provide any patient treatment on the day in question. Such entitlement applies a fortiori where they have had to respond to calls for their services. The doctors’ loss in each case is the deprivation of a rest day as defined by section 2 of the Ordinance. Whether or not they were required to provide their professional services and for how long in the course of the day spent on-call is not relevant. They are entitled to damages designed to compensate them for the entire rest day which they should have been, but were not, granted.

    C.4 The Compensatory Leave Scheme issue

  89. Since the obligation to grant a rest day involves the grant of a continuous period of not less than 24 hours during which the employee is entitled to abstain from working for his employer, the grant of half a day off under the Compensatory Leave Scheme is not an effective substitution for a missed rest day. A half day off would have been relevant to the doctors’ overtime claim if it had succeeded, but it does not compensate for the loss complained off under the rest day claim. I would therefore dismiss the HA’s appeal in relation to the Compensatory Leave Scheme issue.

    D. The holiday compensation issue

  90. The doctors’ holiday claim is founded partly on section 39 of the Ordinance and partly on their contract.

  91. Section 39(1) deals with statutory holidays with pay and provides that “an employee shall be granted a statutory holiday by his employer” on 12 specified days. Sections 39(2) and 39(3) contain provisions for alternative holidays to be appointed or agreed subject to certain conditions. Section 40A prohibits the substitution of payment for a statutory holiday.

  92. Clause F1.2.1 of the HRPM, forming part of the doctors’ contracts, provides that “all employees .... are eligible for .... public holidays”.

  93. There is no dispute that, for the purposes of these proceedings, “public holidays” should be understood to cover all of the 17 specified holidays[36] listed in the Schedule to the General Holidays Ordinance,[37] giving the doctors an entitlement to 17 public holidays each year, comprising five specified general holidays in addition to the 12 statutory holidays referred to in the Ordinance.

  94. The HA’s stance on holidays is based on the fact that neither in the abovementioned Ordinances nor in the contracts is there any definition of a holiday comparable to the definition of a “rest day” as a 24 hour period when the employee is entitled to abstain from working for his employer. The absence of such a definition has led the HA to argue that compensation is claimable in relation to holidays (both statutory and general) only if a doctor rostered on-call actually has to interrupt his holiday by being required to treat a patient on the day in question and then only to the extent of the interruption’s duration. I cannot accept that argument.

  95. While it is true that there is no definition of “holiday” along the lines of the “rest day” definition, it is my view that the word “holiday” in the present context should be construed as bearing the same meaning, that is, as a day on which an employee is entitled to abstain from working for his employer and is free to spend as he sees fit. That, in my opinion, is the natural and ordinary meaning of the word “holiday”.

  96. A degree of support for this approach is implicit in section 39(2) of the Ordinance which deals with substituting alternative holidays. It provides:

    (2)

    An employer may, instead of granting an employee a holiday on a statutory holiday, grant the employee an alternative holiday on another day (which is not a statutory holiday or a substituted holiday) within the period of 60 days immediately preceding or next following the statutory holiday, if the employer has notified the employee, either orally or in writing or by notice posted in a conspicuous place in the place of employment, of the day on which he will be granted the alternative holiday –

    (a)

    where the alternative holiday is to be taken on a day within the period of 60 days immediately preceding the statutory holiday, not less than 48 hours before that day; or

    (b)

    where the alternative holiday is to be taken on a day within the period of 60 days next following the statutory holiday, not less than 48 hours before the statutory holiday.

  97. The requirement that the employee must be given not less than 48 hours notice if a statutory holiday is to be substituted is plainly intended to enable the employee to make plans as to how he will spend his holiday. If he is being asked to work on the public holiday, he must be informed of this in advance and must be told what day he can take off instead to allow him to make his holiday arrangements. The implicit legislative intention is that the statutory or alternative holiday is the employee’s to spend in accordance with his own plans, free of any obligation to work for his employer.

  98. This is reinforced by section 40A’s prohibition against an employer requiring his employee to give up a statutory holiday in return for payment. The statutory intention is evidently to give employees the right to have time off without being under any obligation to work for their employers even where extra pay may be offered.

  99. So construed, the legal consequences of rostering a doctor on-call are the same whether such rostering falls on a statutory holiday or on what ought to be a rest day. Being on-call prevents the day in question from counting as a rest day or a statutory holiday and entitles the employee to an alternative day off and, in default, to damages calculated on an entire day basis.

  100. As with rest days, a doctor who is on-call during a statutory or public holiday is thereby deprived of that holiday and such breach on the part of HA sounds in substantial damages equivalent to a full day’s wages (at the doctor’s then salary) and not merely in nominal damages. I should make it clear that what I have said about the rest day and holiday claims applies equally to interns.

    E. Conclusions

  101. For the reasons given above, I would:

    1. dismiss the doctors’ appeal in relation to their overtime and additional overtime claims;

    2. allow the doctors’ appeal on the nominal damages issue in connection with their rest day and holiday claims;

    3. dismiss the HA’s appeal on the entire day issue in connection with the doctors’ rest day and holiday claims; and

    4. dismiss the HA’s appeal in respect of the Compensatory Leave Scheme issue in connection with the doctors’ rest day and holiday claims.

  102. Although the HA had previously resisted the grant of declaratory relief and had sought to uphold the refusal of such relief in the courts below, it no longer does so, recognizing that the representative nature of these proceedings and the need for future guidance favour the making of declarations regarding the parties’ respective entitlements.

  103. Accordingly, I would make the following orders, namely:

    1. That the HA’s appeal be dismissed;

    2. That the doctor’s appeal in respect of their overtime and additional overtime claims be dismissed and that a declaration be granted that the doctors have no contractual entitlement to be recompensed, whether by time off in lieu or by monetary compensation, beyond the remuneration referred to in their letters of appointment in respect of overtime work done while performing on-call duties beyond their normal working hours.

    3. That the Court of Appeal’s order dated 21 January 2008 be affirmed save that paragraph 1(2)(a) thereof (relating to nominal damages) be set aside.

    4. That the doctors’ appeal in respect of their rest day and holiday claims be allowed in relation to issue of nominal damages and that the following declarations be granted, namely:

      1. A declaration that the doctors are entitled to be granted a rest day in accordance with section 17 of the Employment Ordinance, such rest day consisting of a continuous period of not less than 24 hours during which they are entitled under Part IV of the Ordinance to abstain from working for the HA and that, in default of being granted such a rest day, they are entitled to damages to be assessed in an amount equivalent to a full day’s wages in respect of each missed rest day (at each doctor’s then salary).

      2. A declaration that the doctors are entitled to be granted a statutory or public holiday on each of the combined total of 17 holidays listed in section 39 of the Employment Ordinance and in the Schedule to the General Holidays Ordinance, each such holiday consisting of a continuous period of not less than 24 hours during which they are entitled to abstain from working for the HA and that, in default of being granted such a holiday or a substituted or alternative holiday, they are entitled to damages to be assessed in an amount equivalent to a full day’s wages in respect of each missed holiday (at each doctor’s then salary).

      3. A declaration that in the assessment of damages in respect of the doctors’ rest day and holiday entitlements, credit must be given for each day upon which they were granted leave for the entire day under the HA’s Compensatory Leave Scheme.

    5. By way of order nisi, that the HA pay to the doctors 50% of the doctors’ combined costs of the doctors’ appeal and the HA’s appeal, and that any written submissions as to costs be filed and served within 14 days after the date of this judgment, that any written submissions in reply be filed and served within 14 days thereafter and in default of such submissions, that the order nisi stand as an order absolute without further order.

    Justice Mortimer NPJ

  104. I agree with the judgment of Mr Justice Ribeiro PJ.

    Lord Millett NPJ

  105. I agree with the judgment of Mr Justice Ribeiro PJ.

    Justice Bokhary PJ

  106. The Court is unanimous. On the terms and with the order nisi as to costs set out under the heading “Conclusions” in Mr Justice Ribeiro PJ’s judgment, the doctors’ appeal is allowed in part and the Hospital Authority’s appeal is dismissed.


[1] Cap 57.

[2] Leaving aside the position of interns for the present.

[3] Cap 347.

[4] HCA 1924/2002 (1 March 2006).

[5] Le Pichon JA, Yeung and Yuen JJA, CACV 57/2007 (21 January 2008).

[6] With Mr Benjamin Chain and Mr Tim Kwok.

[7] Extracted from the table in §50 of Stone J’s judgment.

[8] Le Pichon JA at §26.

[9] Yuen JA at §175.

[10] Le Pichon JA at §§45-50, 54-56 and 60.

[11] Cap 113.

[12] Secretary for Health & Welfare to Dr Dickson Chang, 5.12.88.

[13] Consultants were also to receive $1,750 per month in specified units.

[14] Standing Circular No 7/89.

[15] 2nd Report on 1989 Salary Structure Review, Ch 4.

[16] HA Head Office Operations Circular 13/95.

[17] Memo, HA CE to HCEs and COSs, 24.11.00.

[18] (1999) 2 HKCFAR 279 at 296.

[19] [1998] 1 WLR 896 at 912-913, applied by this Court for instance in Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334at §69.

[20] Relying in particular on HRAM B2.2 which states that “The conditioned hours for most ranks and grades are 44 hours gross per week” and then lists ranks and grades (not including the doctors) which are excepted.

[21] Which, by clause E4.3.1 is only payable to employees on lower points on the relevant pay scales.

[22] Clause E4.1.1.

[23] 1991 edition, E4.3.1.

[24] See Section A.4 of this Judgment.

[25] Clause F1.2.3.

[26] F1.6.2.

[27] F1.6.3.

[28] F1.6.4.

[29] F1.6.5.

[30] HRAM, E4.1.3.

[31] §175.

[32] Section B.1a of this Judgment.

[33] Section B.1a of this Judgment.

[34] Appearing for the HA with Mr Godfrey Lam SC.

[35] See Chitty on Contracts (30th Ed, Sweet & Maxwell), Vol 1, §26-008.

[36] Leaving aside “every Sunday”.

[37] Cap 149.


Representations

Mr Denis Chang SC, Mr Benjamin Chain and Mr Tim Kwok (instructed by Messrs LCP) for the appellants in FACV No. 22 of 2008 and respondents in FACV No. 23 of 2008.

Mr Adrian Huggins SC and Mr Godfrey Lam SC (instructed by Messrs JSM) for the respondent in FACV No. 22 of 2008 and appellant in FACV No. 23 of 2008.


all rights reserved