CACV
246/2015
IN
THE HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT
OF APPEAL
CIVIL
APPEAL NO 246 OF 2015
(ON
APPEAL FROM HCAL NO 63 OF 2014)
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BETWEEN
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Applicant
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and
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THE
BAR COUNCIL OF
THE HONG KONG BAR ASSOCIATION |
Respondent
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Before
: Hon Cheung CJHC, Hon Barma JA, and Hon Poon JA in Court
Dates
of Hearing : 12 and 13 September 2016
Date
of Judgment : 28 October 2016
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J
U D G M E N T
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Hon
Cheung CJHC :
1. I
agree with the judgment to be given by Poon JA. Since we
are differing from the judge below (Godfrey Lam J) on an
important point involving the proper interpretation of article 33
of the Basic Law, I would like to add a few words of my own on
article 33.
2. Article 33
states that “Hong Kong residents shall have freedom of choice of
occupation”. It is found in chapter III of the Basic Law
which sets out the fundamental rights and duties of the residents of
the Hong Kong Special Administrative Region. Article 33,
like other provisions in chapter III, should therefore be given
“a generous interpretation” in order to give to Hong Kong
residents “the full measure” of the right and freedom so
constitutionally guaranteed: Ng Ka Ling v Director
of Immigration (1999) 2 HKCFAR 4, 29A‑B. It does
not follow, however, that the origin and drafting history of
article 33 should be ignored. Rather, the proper interpretation
of article 33 should be informed by its context and purpose.
As Fok JA (now Fok PJ) pointed out in the Court of Appeal
in GA v Director of Immigration, CACV 44‑48/2011,
27 November 2012, paragraph 139, article 33 has its
genesis in article 3(5) (JD ref 17) of the Joint
Declaration and annex I section XIII (JD ref 151) to the
Joint Declaration, both of which refer to various rights and freedoms
including that “of choice of occupation”. No wider right to
work is expressly referred to. In the same paragraph, Fok JA
went on to point out in his judgment (with which both Stock VP
and Kwan JA agreed) :
“ … At
the time of the Joint Declaration, the significance of a freedom of
choice of occupation was the practice in the PRC’s planned economy
of assigning students joining universities to specific fields of
studies and occupations after graduation: see Chan
and Lim (General Editors): Law of the Hong Kong Constitution (Sweet
& Maxwell, 2011) at §24.004.”
“ In
my view, therefore, the right conferred by BL33 is a passive or
negative right of freedom to choose an occupation, but
does not imply a right to take up available employment in the first
place. Nor
does it confer an unqualified right to obtain employment, which is
necessarily subject to market forces and also subject to legal
constraints, such as visa and qualification requirements.”
(emphasis added – see below)”
“ The
right being ‘passive or negative’ in the sense of prohibiting any
interference with the freedom of choice as opposed to imposing an
active or positive duty on the part of the Government to provide an
employment.”
5. In
other words, what article 33 seeks to achieve “is to protect
against conscription to particular fields of occupation”:
para 142. See also Cheng Chun-ngai Daniel v
Hospital AuthorityHCAL 202/2002, 12 November 2004,
para 55, where Hartmann J (as he then was) said :
“ … even
when [article 33] is interpreted generously and purposively, it is
not to be interpreted in an active sense, by which I mean that it
does not guarantee the right of employment in any particular field of
occupation. Whether employment can in fact be obtained will depend on
the laws of supply and demand as they apply in the market place. The
article, in my view, is to be interpreted rather in the light of what
it seeks to prevent; namely, outside of issues of national service,
should they ever arise, any form of conscription to particular fields
of occupation.”
6. Naturally,
the next question is what constitutes “conscription” to
particular fields of occupation which, as Hartmann J recognised,
can take more than one form. If a university student wants to be a
teacher after graduation but is told by the State that he has to work
as a farmer, conscription in that context comprises two things.
First, he is not permitted to work as a teacher even if such a job is
otherwise available (subject to qualification requirements etc).
Secondly, he is compulsorily required to work as a farmer even if
that is against his wish. To effectively prevent such a
practice from being adopted in post‑1997 Hong Kong, what is
required, one would have thought, is not only a
constitutional guarantee that the student will not be forced to work
as a farmer against his wish, but also a guarantee
that he will not be prevented from taking up an available teaching
job (if otherwise qualified to do so etc). This second limb is
as important as the first because without it, the pressure, albeit
indirect, on the student to take up the farming job offered by the
State would be tremendous.
7. Free
from authorities, therefore, article 33 – bearing firmly in
mind that it should receive a generous interpretation – should
arguably also comprise two limbs: first, a resident shall not be
forced to work in any or any particular field of occupation against
his wish. Secondly, a resident shall have the freedom to work
in any or any particular field of occupation of his choice (assuming
work is otherwise available and he is otherwise qualified to do so
etc). This second limb, it should be pointed out, is quite
different from, and indeed far less extensive in content than, a
right or guarantee that there will be available employment to take
up, or in other words, a general right to work. The latter is a
right guaranteed under article 6 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR), which thus far has no
domestic force.
8. The
above appears to be the views of the learned judge below. In
paragraph 68 of his careful judgment, G Lam J said this :
“ … Art.
33 refers to freedom of choice of occupation. That freedom is in my
view curtailed both where a person is compelled to take up an
occupation against his wishes, and where he is prevented from
pursuing an occupation of his choice. …”
9. A
similar view, in the context of someone being “forced out” of his
choice of occupation, has also been expressed by the learned author
of chapter 25 in the book (now in its 2nd edition) cited by
Fok JA in his judgment, that is, Chan & Lim (ed), Law
of the Hong Kong Constitution, para 25-017 :
“ Arguably,
the right to freedom of choice of occupation has to include the right
not to be forced out of one’s choice of occupation already made. It
is a natural corollary of the right exercised at a point of entry
into a workforce which has to also extend to the continued enjoyment
of the right until the individual freely chooses to exit or is
dismissed without prejudice to his/her entitlement to seek employment
with other employers in his/her chosen occupation. If one is pushed
out of the profession or vocation, for instance due to governmental
administrative measures that make the occupation untenable, in
addition to engaging a further ‘right to work’, it can
legitimately give rise to a cause of action for the violation of the
freedom to choose occupation.”
10. However,
for the courts, the matter is not free from
authorities. With respect, this is where we differ from the
learned judge. As mentioned, in paragraph 143
of GA already quoted above, Fok JA, after
concluding that article 33 is a passive or negative right of
freedom to choose an occupation in the sense he elaborated in his
footnote, went on to add that it “does not imply a right to take
up available employment in the first place” (my
emphasis). This addition, on my own reading, ruled out the
possibility of article 33 having the second limb that I
mentioned above, ie, that a resident shall have the freedom to work
in any or any particular field of occupation of his choice (if work
is available etc). This reading is reinforced by the Court of
Appeal’s rejection of the appellants’ contention that they had a
constitutional right under article 33 to take up employment if
and when available – they were not saying the Government
had a duty to provide them with employment where there was none
available.
11. Pausing
here, the Court of Appeal’s decision in GA is
binding on this court (as well as the learned judge below), unless it
is shown to be “plainly wrong”. And there is no question of that
decision being plainly wrong as what was said by Fok JA in the
Court of Appeal was expressly endorsed by Ma CJ when the case
went on appeal to the Court of Final Appeal: (2014) 17 HKCFAR 60.
In paragraph 73 of the Court of Final Appeal’s judgment, the
Chief Justice specifically approved what was said by Fok JA in
paragraphs 139‑143 of his judgment which the Chief Justice
quoted in full in the preceding paragraph. Again, this
endorsement formed part of the ratio decidendi of
the Court of Final Appeal’s decision in rejecting the appellants’
contention that they had a right under article 33 (whether
directly – as they contended before the Court of First Instance and
the Court of Appeal, or indirectly under article 6 of the ICESCR
as applied to Hong Kong via article 33 – as they apparently
argued in the Court of Final Appeal as per paragraph 70 of the
court’s judgment), to take up available employment
in Hong Kong.
12. In
other words, there are two authorities on the true interpretation of
article 33 which are binding on this court as well as the
learned judge.
13. In
those circumstances, the applicant’s reliance on article 33 in
the present case is doomed from the beginning.
Hon
Barma JA :
Hon
Poon JA :
A.
Appeal
15. By
a decision reached at its meeting on 6 March 2014, the Bar Council of
the Hong Kong Bar Association resolved to refuse the application of
the applicant, then a practising barrister, to engage in
neuro-beautology as a supplementary occupation under Paragraph 23 of
the Code of Conduct of the Bar (“the Decision”). The applicant
was informed of the Decision on the following day.
“ 23.
(1) A barrister may not, without the permission of the Bar Council,
or save as provided for in Annex 4A to this Code, become or remain a
practising barrister unless he is willing for his practice to be his
primary occupation; and he may not engage directly or indirectly in
any other occupation if his association with that occupation may
adversely affect the reputation of the Bar.
(2)
A practising barrister must not engage directly or indirectly in any
other occupation if his association with that occupation may
prejudice his ability to attend properly to the interests of his
clients.
(3)
(a) A practising barrister who wishes to engage in a supplementary
occupation should do so only in accordance with the general or
special permission of the Bar Council.
(b)
Supplementary occupations for which the Bar Council has granted
general permission are set out in a List of Approved Supplementary
Occupations in Annex 4 and in the List of Approved Occupations in
Annex 4A to this Code. A practising barrister who wishes to
engage in an occupation not listed in Annex 4 or Annex 4A or is in
doubt whether a proposed occupation is within the approved list
should seek the special permission of the Bar Council before taking
up the occupation.”
17. The
Bar Council refused the applicant’s application because it was not
satisfied that his engagement as a neuo-beautologist would be
compatible with his practice as a barrister.
18. The
applicant then applied for judicial review against the Decision,
contending principally that Paragraph 23 of the Code unlawfully
infringes his freedom of choice of occupation guaranteed under
Article 33 of the Basic Law (“BL33”), which provides :
“ Hong
Kong residents shall have freedom of choice of occupation.”
The
applicant also complained that the Bar Council had failed to give
adequate reasons in refusing his application to engage in
neuro-beautology as a supplementary occupation.
19. By
a judgment dated 24 September 2015, G Lam J allowed the applicant’s
application for judicial review, granting him the following relief :
(1) an order of declaration that Paragraph 23 of the Code infringes BL33 insofar as it prevents a barrister from engaging in any supplementary occupation without the prior permission of the Bar Council; and
(2) an order of certiorari bringing up the Bar Council’s Decision to the court and quashing it.
20. The
Judge’s judgment naturally impacts on how the Bar Council regulates
the profession. The Bar Council considers that it is erroneous
and, unless reversed, will erode its capacity to effectively regulate
the Bar in the public interest and to ensure public confidence in the
profession. Hence this appeal.
21. The
first and foremost issue in this appeal is whether BL33 is engaged by
the restriction in Paragraph 23 of the Code. It is a threshold
issue because if it is resolved in favour of the Bar Council, then
the question of proportionality does not arise, leaving only the
applicant’s challenge based on inadequacy of reasons.
22. To
give my discussion later its proper context, I will outline the
background circumstances as follows.
B.
Background
23. The
applicant was called to the Hong Kong Bar in 2005. Having
worked as an employed barrister since September 2005, he resumed
private practice on 1 January 2014.
24. In
March 2014, the applicant completed a course for a Professional
Certificate in Neuro-Beautology with an institution called
International Naturopathic College operated by International
Nautropathic College Limited, a company incorporated in Hong Kong in
2002.
25. By
a letter dated 5 March 2014, the applicant applied to the Bar Council
for permission to engage in neuro-beautology as his supplementary
occupation pursuant to Paragraph 23(3)(a) of the Code. His letter
gave a link to a website for the details of neuro-beautology.
In response to the requests by the Bar Secretariat, the applicant on
the same day provided further particulars about :
(1) nature of the work : neuro-beautology is in the field of natural medicine and the practitioner is ordinarily called a “body-figuring practitioner”;
(2) time to be spent : he intended to practise neuro-beautology as his supplementary occupation and the time normally spent for each client per session would be about an hour;
(3) remuneration : in the range of HK$3,800 to HK$5,000 per session.
On
6 March 2014, the applicant further stated in response to the Bar
Secretariat’s question that he undertook not to spend more than 17
hours a week in the supplementary occupation.
26. Meanwhile,
the Honorary Secretary to the Bar Council visited the website
provided by the applicant. The website described the
International Naturopathic College in these terms :
“ International
Naturopathic College, Limited was founded in 2002. It takes promoting
Naturopathic education in Chinese as its responsibility. Through
several years’ negotiation and research, this college made
agreement with different institutes and colleges in the world and set
up a series of naturopathic medicine courses taught in Chinese and
with International certificate in Hong Kong. It is a great
breakthrough in the education of naturopathic medicine.
Principle
To
promote preventive medicine with professional and universal
education, to encourage students understand [sic] preventive
medicine, and moreover to apply preventive medicine for treating
others”
“ ‘Professional
Certificate in Neuro-Beautology’ was formally introduced to Hong
Kong by International Naturopathic College in 2006. In 2008, the
relevant course was presented, demonstrated and promoted in various
districts in Hong Kong. “Neuro-Beautology” is one type of
Naturopathy which adjusts body gestures in a painless, effective and
non-invasive way. It is a professional technique and technology that
brings immediate improvement effects. The relevant technique is to
efficiently correct distorted body structure through simple spine and
pelvis adjustment techniques with the aim of removing or improving
humpback, discomfort due to spine, thick waist, lopsided shoulders,
legs of different lengths, uneven breasts sizes, neck wrinkles etc.
based on skeletal nerve reflexivity. The most incredible thing about
this course is that anyone can apply for this course no matter what
age you are, whether you have a professional or related background or
not. Regardless of the education level, one can apply for this course
to acquire a skill.
Qualified professional graduates in ‘Neuro-Beautology’ will utilize this technique to integrate or apply in medical, health care and beauty business or treatment, forming a new programme for overall health, beauty and health care with immediate effects so as to increase the competitiveness within the industry. This is also beneficial to the developments of new markets and new sources of customers. In addition, many graduates become Neuro-Beautologist either by establishing their own business or partnership to provide professional Neuro-Beautology services to the public.”
28. The
Honorary Secretary was not impressed by the International
Naturopathic College. It was registered only as a private
company in Hong Kong. The College offered various short courses
leading to certain qualifications of various descriptions akin to
cosmetic therapy or treatment. The course attended by the
applicant only required secondary education as an entrance
requirement, and this could be waived by the College. Those who
finished that course were said to be able to give treatment to
correct spinal or pelvic deformity or asymmetry so as to eliminate or
improve kyphosis and wrinkles around the neck or to achieve effects
such as breast augmentation, slimming of the waist and correction
problems. Such claims, in the Honorary Secretary’s view,
might engage relevant laws regulating the medical and related
professions. All in all, the Honorary Secretary was left with
considerable reservations on the professional standing of (a) the
College; (b) the International Naturopathic Medicine Association (of
which holders of the certificate held by the applicant are apparently
eligible for membership); (c) the professional certificate held by
the applicant and (d) body-figuring practitioners generally.
29. The
Honorary Secretary reported his findings to the Bar Council at its
meeting held on 6 March 2014. The Bar Council took the view
that the applicant’s intended supplementary occupation was not
compatible with his practice as a barrister, primarily by reason of
its nature and lack of professional standing. According to the
minutes of the meeting :
“ The
Hon Secretary said that there were two issues for consideration: (1)
the proposed time spent was 17 hours per week which was way above
what the Bar Council could accept, and (2) the compatibility of this
supplementary occupation to practice as a barrister. He said that
when … asked to give more details of the intended supplementary
occupation, Albert Leung gave a link to the website of this
discipline of neuro-beautology. He had serious reservation about the
application by the look of the website.
The
Chairman shared the same view and the application must be refused.
Members
agreed.
It
was resolved that the application by Albert S H Leung be refused.”
30. By
a letter from the Chairman of the Bar Council dated 7 March 2014, the
applicant was told that his application was refused :
“ I
regret to inform you that the Bar Council is not satisfied that your
engagement as a Neuro-Beautology [sic] would be compatible with your
practice as a barrister and had come to the view that permission
should not be granted to your proposed work as stated in your above
letter and email.”
31. On
12 March 2014, the applicant notified the Bar Council that he had
decided to cease to practise as a barrister with effect from 15 March
2014.
32. On
14 May 2014, the applicant wrote to ask the Bar Council to elaborate
on the reasons of refusing his application as he found them to be
inadequate. On 12 May 2014, the Deputy Honorary Secretary to
the Bar Council replied :
“ I
trust you realise that approval for engagement in a supplementary
occupation is not to be granted as a matter of course. In arriving at
its decision, the Bar Council has carefully considered the
information provided in your previous letter and email respectively
dated 5th and 6th March 2014.
Without
admitting any obligation to give reason, I respectfully disagree that
no adequate reason for the refusal has been given in the Chairman’s
letter to you dated 7th March 2014.”
C.
Proceedings below
33. On
9 June 2014, the applicant applied for leave to apply for judicial
review against the Decision and obtained leave to do so from Au J on
25 November 2014. The matter eventually came before G Lam J for
determination. The applicant relied on two main grounds :
(1) Paragraph 23 of the Code unlawfully restricts his freedom of choice of occupation guaranteed under BL33 and is therefore unconstitutional.
(2) The reasons given by the Bar in making the Decision were inadequate.
(1) Whether the Decision is amenable to judicial review?
(2) Whether Paragraph 23 of the Code unlawfully restricts the freedom of choice of occupation and is unconstitutional? Four further issues arose :
(a) Whether BL33 is engaged by Paragraph 23 of the Code;
(b) Assuming BL33 is engaged, whether the restriction is prescribed by law;
(c) Whether there is a rational connection to the legitimate aim pursued; and
(d) Whether the restriction satisfied the requirement of proportionality.
35. On
Ground (2), the only question identified by the Judge was whether the
Decision should be set aside for the failure to give adequate
reasons.
36. The
learned Judge first held that the Decision was amenable to judicial
review : see [32]-[59] of his Judgment.
37. For
the reasons that he gave at [59]-[68], the Judge ruled that BL33 is
engaged. After referring to GA v Director of
Immigration (2014) 17 HKCFAR 60, a case heavily relied on by
the Bar Council, the Judge said :
“ 68.
It is not clear whether the respondent would go so far as to contend
that Art. 33 is concerned solely with the right against conscription
or compulsory allocation to assigned fields of occupation. In my
opinion the passages in the judgments in GA
v Director of Immigration do
not support such a narrow interpretation. Art. 33 refers to freedom
of choice of occupation. That freedom is in my view curtailed both
where a person is compelled to take up an occupation against his
wishes, and where he is prevented from pursuing an occupation of his
choice. Without paragraph 23 of the Code, the applicant could prima
facie both
practise at the Bar and take up supplementary occupation (including
the practice of neuro-beautology). With paragraph 23 in place and
absent permission from the Bar Council, he cannot do so without
risking disciplinary sanctions as a barrister. Giving the words in
Art. 33 their ordinary meaning, it seems to me that in a real and
substantial way, the applicant’s freedom of choice of occupation
has prima
facie been
restricted by paragraph 23. It probably does not matter whether one
characterises it as a restriction on the applicant’s freedom to
practise as a barrister, or his freedom to practise as a
neuro-beautologist, or both. If, for example, a man is qualified to
practise both law and medicine, but because of rules imposed by one
of the professions he cannot freely practise in both occupations, it
seems to me Art. 33 is engaged. In fact it appears that Mr McCoy
accepted that this conclusion would follow on a natural reading of
Art. 33. He submitted however that “[t]he Article cannot literally
mean what it might appear to say” – a submission that seems to
seek to place a restrictive, rather than generous, interpretation on
the article. The reason given was that otherwise, for example, an
unqualified person could practise as a medical practitioner. But that
is a non
sequitur.
No one disputes that even if Art. 33 applies, qualification
requirements for professionals may with justification be imposed: see
Art. 142. The question under consideration is simply whether Art. 33
is engaged. For the reasons I have endeavoured to give I conclude
that it is, and that paragraph 23 of the Code “prima
facie infringes
Article 33 of the Basic law” as is conceded (in my view correctly)
by the respondent.”
38. The
Judge next proceeded to discuss whether Paragraph 23 of the Code
satisfied the proportionality test. For the reasons stated at
[69]-[88] and at [90]-[105], he held that Paragraph 23 of the Code
did not satisfy both the “prescribed by law” requirement and the
“rationality” requirement. In light of such conclusion, the
Judge took the view that the “proportionality” requirement did
not arise for consideration : [106]-[107].
39. Turning
to Ground (2), the Judge, for the reasons that he gave at
[108]-[111], held at [112] that the Bar Council did not give the
applicant adequate indication as to why it had refused his
application.
40. The
Judge therefore allowed the applicant’s judicial review and granted
him the relief as set out at [5] above.
41. Having
outlined the background facts, I now turn to the threshold issue of
whether BL33 is engaged.
D.
Is BL33 engaged?
42. Whether
BL33 is engaged by Paragraph 23 of the Code turns on the true meaning
of BL33. To recap, it provides :
“ Hong
Kong residents shall have freedom of choice of occupation.”
D1.
GA v Director of Immigration
43. Recently,
BL33 arose for the appellate courts’ consideration for the first
time in GA
v Director of Immigration.[1]
44. There,
the first three appellants were mandated refugees who had established
their claims as refugees to the satisfaction of the United Nations
High Commission for Refugees Hong Kong Sub-Office and awaited
settlement overseas. The 4th defendant was a screened-in
torture claimant under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment of Punishment. They had
been staying in Hong Kong for 10 to 13 years. The Director of
Immigration refused to grant them permission to work in Hong Kong.
They applied for judicial review against the Director’s said
refusal.
“ (1)
The Applicants’ position is that theyhave a constitutional right to
work in Hong Kong and any discretion on the part of the DOI (the
Director of Immigration) whether or not to grant permission to work
must be exercised with such right in mind. Save perhaps in one
important respect (see sub-para (3) below),the Applicants do not
challengethe existence of a discretion on the part of the DOI, but
they say that where the constitutional right to work exists, any
exercise of discretion not to permit protected persons to work, which
would interfere with the constitutional right, can only be justified
by the application of the familiar proportionality test. In this
latter respect, the Applicants contend that the DOI cannot justify a
policy denying permission to work to a protected person who has been
in Hong Kong for more than four years. This contention was the same
as that raised in the Court of Appeal.
(2)
The constitutional right to work was said to be contained in one or
more of the following provisions: Article 14 of the Hong Kong Bill of
Rights (“the BOR”), Article 6 of the International Covenant on
Economic, Social and Cultural Rights (“the ICESCR”) and
implicitly in one provision, Article 33 of the Basic Law. The
Applicants say a right to work alsoexists at common law.
(3)
The Applicants also place reliance on Article 3 of the BOR which
states that no one shall be subject to “torture or to cruel,
inhuman or degrading treatment or punishment”. It is common ground
that we are in this case only concerned the aspect of “inhuman or
degrading treatment” (which for convenience I will refer to simply
as “IDT”). Where there is a substantial and imminent risk of IDT,
the Applicants argue there is no discretion on the part of the DOI
other than to give permission to work; in other words, in such
circumstances, there can be no justification to decide otherwise and
the proportionality test is of no application.
(4)
Accordingly, the Applicants seek appropriate relief quashing the
relevant decisions of the DOI, thus enabling them (and others like
them) to enjoy the right to work in Hong Kong.
(5)
On the Respondent’s part, it is submitted that the DOI has a broad
discretion in relation to immigration control, including, importantly
for present purposes, the granting or refusal of permission to work
for persons in the Applicants’ position. The existence of a
constitutional right to work contended for by the Applicants (said to
be contained in Article 14 of the BOR, Article 6 of the ICESCR and
Article 33 of the Basic Law) is not accepted but it is said that
these provisions simply have no application in relation to the
subject matter of the present case and therefore in any event cannot
benefit the Applicants. Here, reliance is placed on s 11 of the
HKBORO, the Reservation entered by the Government of the United
Kingdom upon ratification of the International Covenant on Civil and
Political Rights (“the ICCPR”) on 20 May 1976 and the Reservation
entered into by the United Kingdom upon ratification of the ICESCR
also on 20 May 1976 regarding the applicability of Article 6 of that
Convention. Regarding Article 33 of the Basic Law, the Respondent
places reliance on Article 41 of the Basic Law. Accordingly the
Respondent submits, the proportionality test does not come into
playat all. In any event, even if the test had to be applied, the
DOI’s policy satisfies the test. The common law right to work is
also disputed.
(6)
The Respondent does not of course go so far as to contend that the
discretion in immigration matters is without limit. It is
accepted that where exceptional circumstances exist, a discretion
giving permission to work can be exercised in favour of persons like
the Applicants. Further, it is not disputed that the discretion
is subject to Article 3 of the BOR regarding IDT. However, the
Director submits that in none of the cases before the court can any
Applicant demonstrate on the evidence that a genuine and substantial
risk of IDT exists. The Applicants argue otherwise on the facts.”
46. At
first instance,[3] A
Cheung J (as the Chief Judge then was) held that by reason of section
11 of the Hong Kong Bill of Rights Ordinance, Cap 383, the appellants
were unable to rely on any of the rights under the BOR. He also
held against the appellants in relation to their submissions based on
Article 6 of the ICESCR, BL33 and the alleged right under common
law. However, the learned Judge was of the view that the
Director had not properly considered two of the appellants’
personal circumstances and had not dealt with them with an open
mind. He therefore quashed the decisions of the Director to
refuse those two appellants permission to work and directed the
Director to reconsider their requests afresh.
47. In
dismissing the appellants’ appeals, the Court of Appeal held that
Article 14 of the BOR, Article 6 of the ICESCR and BL33 did not
benefit the applicants. The Court of Appeal also did not accept
that there was a common law right to work.
48. Significantly
for present purposes, Fok JA (as Fok PJ then was), in rejecting the
appellants’ reliance on BL33, had this to say :
“ 135.
If the appellants cannot rely on ICESCR6, they seek to rely instead
on BL33 which provides:
“ Hong
Kong residents shall have freedom of choice of occupation.”
136.
In this context, the appellants also rely on BL41 which provides:
“ Persons
in the [HKSAR] other than Hong Kong residents shall, in accordance
with law, enjoy the rights and freedoms of Hong Kong residents
prescribed in this Chapter.”
137.
Mr Fordham submitted that the proper construction of BL33 was no
narrower than ICESCR6 because its language was capturing the essence
of the core right not to be forced into a particular occupation
(conscription) and not to be denied work (access-deprivation). He
submitted this was supported by reference to the 2004 PRC Report
(E/1990/5/Add.59) to the CESCR, to which I have referred above,
indicating that the ICESCR6 right was conferred domestically by BL33
and BL39. He also referred to the CESCR’s General Comment No. 18
(E/C.12/GC/18) stating (at §4) that the right to work in ICESCR6
includes the right not to be deprived of work unfairly which, the
CESCR comments, underlines the fact that respect for the individual
and his dignity is expressed through the freedom of the individual
regarding the choice to work and emphasises the importance of work
for personal development and social and economic inclusion.
138.
I would reject the wide construction of BL33 advanced by the
appellants.
139.
BL33 has its origins in article 3(5) (§17) of the Joint Declaration
and Annex I Section XIII to the Joint Declaration (§151) both of
which refer to various rights and freedoms including that “of
choice of occupation”. No wider right to work is expressly referred
to. At the time of the Joint Declaration, the significance of a
freedom of choice of occupation was the practice in the PRC’s
planned economy of assigning students joining universities to
specific fields of studies and occupations after graduation: see Chan
and Lim (General Editors): Law of the Hong Kong
Constitution (Sweet & Maxwell, 2011) at §24.004.
140.
In my opinion, a right to choose one’s occupation is narrower than
a right to work in general. As the CESCR General Comment No. 18
states, at §6, the right to work is not to be understood as an
absolute and unconditional right to obtain employment but includes
the right to decide freely to accept or choose work. This
demonstrates that the freedom of choice of occupation is therefore
only part of the wider right to work in ICESCR6. If BL33 was intended
to confer more than a freedom of choice, one would have expected its
wording to be different.
141.
Furthermore, the relevant context of BL33 would include the fact that
by reason of BL39, the ICCPR and ICESCR as applied to Hong Kong
include both the immigration reservation, reflected in HKBORO s. 11,
and the UK’s reservation to ICESCR6. I have addressed the
construction of those reservations above and, in the light of my
conclusions as to their proper interpretation, it would not be right
to conclude that BL33, properly construed in its context, is
co-extensive with ICESCR6 since this would be to ignore the UK
reservation to that article.
142.
I would add that this conclusion as to the proper construction of
BL33 is consistent with previous cases dealing with BL33 which have
held that its effect is not to guarantee a right to be employed
either generally or in any particular field, but instead, is to
protect against conscription to particular fields of occupation:
see Cheng Chun-ngai Daniel v Hospital Authority, unrep.,
HCAL 202/2002 (12 November 2004) at §55; Financial Services
and Systems Limited v Secretary for Justice, unrep., HCAL
101/2006 (6 July 2007) at §§49-53; Ng King Tat Philip v
Post-Release Supervision Board, unrep., HCAL 47/2010 (23 August
2010) at §§116-117. See also, Hong Kong’s New
Constitutional Order (2nd Ed.) by Professor Yash Ghai
at pp. 435-436.
143.
In my view, therefore, the right conferred by BL33 is a passive or
negative[4] right
of freedom to choose an occupation, but does not imply a right to
take up available employment in the first place. Nor does it confer
an unqualified right to obtain employment, which is necessarily
subject to market forces and also subject to legal constraints, such
as visa and qualification requirements.
144.
The appellants argue that BL41 limits the restrictions that can be
imposed on non-residents’ rights since these can only be such as
are “in accordance with law”. As to this, the conclusions I have
reached as to the proper construction of HKBORO s. 11 and the UK
reservation to ICESCR6 mean that the ICCPR and ICESCR rights as
applied to Hong Kong are restricted as regards non-residents. The
Court of Final Appeal has recognised that there is a difference as
regards the fundamental rights and freedoms enjoyed by residents on
the one hand and non-residents on the other and also whether such
rights can be restricted by law: see Gurung Kesh
Bahadur (supra) at §§28, 29 and 42.
145.
Furthermore, the phrase “in accordance with law” in BL41 means
law including the IO so that the provisions of that ordinance would
be relevant in considering the extent of the right under BL33 for a
non-resident: see Re Pasa Danaville Dizon, unrep., HCAL
97/2009 (11 September 2009) at §8, Gurung Ganga Devi v
Director of Immigration, unrep., HCAL 131/2008 (23 September
2009) at §27 and Comilang v Director of Immigration,
unrep., HCAL 28/2011 (15 June 2012) at §91.
146.
That there is a difference in the quality of the rights enjoyed by
residents on the one hand and non-residents on the other is also
reflected in the observations of Stock VP in Fok Chun Wa v
Hospital Authority, unrep., CACV 30/2009, namely:
“ 70.
The range of rights within Chapter III is broad and the degree to
which rights of non-residents in Hong Kong at any given time may
lawfully be circumscribed so as to differ from those enjoyed by
residents must depend upon the context. So, for example, it is not
possible to envisage circumstances in which it would be lawful to
deprive a non-resident of the freedom from arbitrary detention or
imprisonment. On the other hand, it would be a non-purposive
construction that supposed that art.41 intended that non-residents be
accorded all the same privileges and benefits as residents,
unqualified by considerations of residence status, or other
connection with Hong Kong, and regardless of the impact of according
such privileges and benefits on Hong Kong residents, benefits such as
the freedom of occupation (art.33) or the right to social welfare
(art.36). …”.
147.
I therefore conclude that BL33, on its proper construction, does not
support the appellants’ asserted claim to a right to work.”
49. In
the Court of Final Appeal, Ma CJ, after disposing of the submissions
on Article 14 of the BOR,[5] held
that Article 6 of the ICESCR has not been incorporated into Hong Kong
municipal law by reason of the common law dualist principle.
Importantly for present purposes, the Chief Justice rejected the
appellants’ arguments on BL33 thus :
“ 70.
As I understand Mr Fordham QC’s submission, the relevance of
Article 33 of the Basic Law lies in the assumption within it that
there is a right to work in general. Thus regarded, this provision
provided another means by which, following the dualist principle,
Article 6 of the ICESCR was incorporated into Hong Kong domestic law.
The paper setting out the views of the PRC regarding the
implementation of the ICESCR made reference to Article 33 of the
Basic Law as being the constitutional guarantee of Article 6.
71.
Article 33 does not refer to the right to work in general. It
is much narrower than that, dealing only with the freedom of choice
of occupation. If it was intended that a wider right was to
exist, the article would simply have said so or it would have been
made much clearer, rather than to adopt a somewhat elliptical
technique.”
His
Lordship then quoted [139]-[143] of Fok JA’s judgment in the Court
of Appeal verbatim and agreed with it.[6]
50. Turning
to the common law right to work, Ma CJ disposed of the appellants’
submissions shortly thus :
“
75.
As a back stop submission, the Applicants finally advance the
argument that a common law right to work exists. It is not necessary
to deal at length with this submission. None of the authorities cited
by the Applicants bears this out and, as Lord Pannick QC points out,
the context of those cases are quite far removed from the
present.[7] More
important, it is difficult to conceive of the existence of a right to
work under the common law in the circumstances of the present case,
particularly in the light of the discussion above relating to s 11 of
the HKBORO, Article 39 of the Basic Law and the two Reservations made
regarding the ICCPR and the ICESCR.
76.
From the above, it is clear that no constitutional right to work
exists in favour of the Applicants in the present case. No
questions of proportionality therefore arise for consideration.”
51. Two
propositions can be distilled from the judgment of the Court of Final
Appeal in GA v Director of Immigration :
(1) Under the common law, a general right to work does not exist.
(2) BL33, on a proper construction, only protects against conscription to particular fields of occupation. It does not confer a right to work in general.
D2.
The parties’ submissions
52. Mr
Yu SC, for the Bar Council, submitted that in light of GA v
Immigration of Director, BL33 is simply not engaged. With
respect, Mr Yu must be correct.
53. Mr
Dykes SC, for the applicant, submitted that a right to work has
always existed under the common law, which recognizes a person’s
right to choose his own occupation. The common law right is
elevated to constitutional status by virtue of BL33.
55. First,
the English authorities that he cited in support, that is, Blackstone
Commentaries on the Laws of England,
Vol 1, “Rights of Persons” at §II; Re
Tailors of Ipswich Case (1614)
77 ER 1218; Nagle
v Feilden [1966]
2 QB 633; Pharmaceutical
Society of Great Britain v Dickson;
and the local case of Ho
Man Fat (No 2) v Royal Hong Kong Jockey Club [1976]
HKLR 452 are all concerned with restraint of trade or analogous
concepts, which are, as noted by Ma CJ, quite far removed from the
present.[8]
They do not support the very wide proposition that under the common
law a general right to work exists, whatever the context might be.
56. Second
and more fundamentally, the two propositions that I have just derived
from Ma CJ’s judgment in GA v Director of Immigration are
binding on this Court. Mr Dykes argued that they are not as
they are just obiter dictum. With respect, I disagree.
57. As
I have said, the appellants in GA v Director of
Immigration argued that they had a constitutional right to
work because of, among other things, the protection guaranteed by
BL33. They also relied on the alleged common law right to
work. The two propositions derived by me formed the core of the
Chief Justice’s reasoning and the very basis for rejecting their
arguments. As such, they are plainly the ratio
decidendi of his Lordship’s judgment and are binding on
this Court.
58. What
I have just said disposes of Mr Dykes’s principal argument raised
in this appeal. For completeness, I will briefly deal with two
points raised in his written submissions but not fully developed
orally.
59. First,
Mr Dykes submitted that the Basic Law is not a freeze-frame. It
is a living instrument intended to meet changing needs and
circumstances. In construing it, the court must take into
account the evolving social context. Thus while the context in
the 1980s must be looked at, including the way in which socialist
labour conscription policies were practised in the Mainland at that
time, that is far from a complete account of the enquiry that must be
undertaken in correctly construing BL33. Mr Dykes seemed to be
suggesting that given the present social context, BL33 must now be
construed to include a general right to work.
60. It
is well established that a constitution such as the Basic Law is
capable of growth and development over time to meet new social,
political and historical realties since the time of its enactment
: Ng Ka Ling v Director of Immigration (1999) 2
HKCFAR 4, per Li CJ at p 28D; W v Registrar
of Marriages (2013) 16 HKCFAR 112, per Ma
CJ and Ribeiro PJ at [84]; Hunter v Southan Inc [1984]
2 SCR 145, per Dickson J at p 155. Thus in
construing the Basic Law, the court gives due regard to its
historical context but is not unduly constricted by it. The
court always treats the Basic Law as a living norm, rooted in the
past but intended to be responsive to contemporaneous needs and
circumstances, and gives it an interpretation that truly reflects
firmly held modern views in the current social and legal landscape.
61. When
in a particular case the court is asked to depart from a long held
position in interpreting the Basic Law, such as the concept of
marriage in W v Registrar of Marriages, supra,
the court will approach the matter with extreme caution to ensure
that such departure is truly warranted so as to reflect the
underpinning societal changes and realities. Otherwise, the
court will act beyond its constitutional role by writing new, or
re-writing existing, social policy in the guise of constitutional
interpretation. Introducing changes to social policy is the
exclusive function of the executive branch of the government or the
legislature which the court cannot usurp.
62. Here,
the Court of Final Appeal handed down its judgment in GA v
Director of Immigration on 18 February 2014, some 32 months
ago. And in unequivocal terms, the Court of Final Appeal held
that BL33 confers no general right to work. If Mr Dykes really
wanted us to depart from such a position now by giving BL33 the
interpretation that he contended for, he would have to demonstrate to
us that there had been significant societal changes since February
2014. But he simply has not done so. Indeed, on the
materials before us we can see no societal changes since February
2014 that would warrant such a departure. There is accordingly
no basis for this Court to interpret BL33 in such a way as to confer
a general right to work.
63. Second,
Mr Dykes referred to Article 6 of the ICESCR. It is not
entirely clear if it is his submission that Article 6 formed part of
the domestic law of Hong Kong. If that was his submission, it must be
rejected in light of the clear and contrary ruling by Ma CJ in GA
v Director of Immigration.
D3.
The Judge erred
64. With
respect to the learned Judge below, at [68] of his Judgment he erred
in his understanding of the effect of GA v Director of
Immigration. The Court of Final Appeal’s judgment is
binding on this Court as it is on him.
D4.
Conclusion
65. Since
BL33 does not confer a general right to work, it is not engaged by
the restriction in Paragraph 23 of the Code. No questions of
proportionality arise for determination. Nor is it necessary to
deal with the arguments on “prescribed by law”.
66. For
completeness, Mr Dykes, in response to the questions by the Bench
during oral submissions, applied to amend the Form 86 by adding a
further ground of challenge to the constitutionality of Paragraph 23
of the Code that the Bar Council had misconstrued and misapplied
Paragraph 23(3) of the Code. In light of my conclusion that
BL33 is not engaged by Paragraph 23 of the Code, this proposed
amendment is wholly academic. I would accordingly refuse to
give leave to amend.
E.
Reasons Challenge
69. The
reasons given by the Bar Chairman in his letter dated 7 March 2014
were that the Bar Council was not satisfied that the applicant’s
engagement as a neuro-beautologist would be compatible with his
practice as a barrister. These reasons were very brief indeed.
So were the minutes of the meeting of 6 March 2014. They did
not add much to the adequacy of reasons. The Judge was correct
in holding that the reasons were inadequate.
70. Mr
Yu submitted that the reasons given by the Bar Council were
sufficient because the applicant was legally trained and should be
taken to have read and understood the Code and, with sufficient
precision, the parameters for supplementary occupations. He
should be treated as an “informed party” and elaborate reasons
were not required : South Bucks District Council v
Porter (No 2) [2004] 1 WLR 1953, at [36].
71. In
my view, in determining that neuro-beautology is not a compatible
supplementary occupation, the Bar Council, collectively representing
the profession’s views on the norms and standards acceptable to the
profession, is exercising a value judgment involving those
considerations as now set out in the affirmation of the Honorary
Secretary filed in the proceedings below.[9]
It is not enough to expect that the applicant, even with his
professional training as a barrister, would be able to figure out the
exact reasons why his application was rejected by the Bar Council on
the ground of incompatibility. The reasons as set out in the
Honorary Secretary’s affirmation should have been provided to the
applicant at the same time when the Decision was communicated to him.
72. That
said, I agree with Mr Yu that the Judge ought to have accepted that
the reasons disclosed in the course of the proceedings were adequate,
and refused to quash the Decision on the ground of inadequate
reasons.
73. Mr
Dykes submitted that the applicant had been prejudiced by the lack of
adequate reasons. He first submitted that had the Bar Council
explained at the time what it meant by “compatibility” and why
neuro-beautology did not pass muster there might be disclosed a
demonstrable error. With respect, this is no more than
speculation. He next argued that had the Bar Council indicated
why it thought the occupation was not “compatible” the applicant
could have engaged the Bar Council. However, as rightly
submitted by Mr Yu, the Bar Council’s objection was to the nature
and standing of neuro-beautology, which were matters beyond the
applicant. The applicant had not shown he could have done
anything to improve the situation or his chances of getting the
approval even if given fuller reasons. He had not been
prejudiced as contended.
F.
Disposition
74. For
the reasons given, I would allow the appeal, set aside the order of
the Judge and substitute it with an order that the applicant’s
application for judicial review be dismissed.
75. Costs
should follow event. I would make an order nisi that
the Bar Council shall have the costs here and below, to be taxed if
not agreed, with a certificate for two counsel.
Hon
Cheung CJHC :
76. Accordingly,
the Bar Council’s appeal is allowed in the terms as proposed in
paragraphs 74 and 75 above.
|
(Andrew
Cheung)
Chief Judge of the High Court |
(Aarif
Barma)
Justice of Appeal |
(Jeremy
Poon)
Justice of Appeal |
Mr
Philip Dykes, SC, leading Mr David Lai, Mr Timothy Parker & Mr
Edward Tang, instructed by Jal N Karbhari & Co, for the Applicant
Mr
Benjamin Yu, SC, leading Mr Abraham Chan & Mr Anthony Chan,
instructed by Kwok, Ng & Chan, for the Respondent
[1] By
the Court of Appeal in CACV 44-48/2011, unreported, 27 November 2013;
and by the Court of Final Appeal, ibid (CFA Judgment”).
[2] CFA
Judgment [7] (without the footnotes).
[3] HCALs
10/2010, 73/2010, 75/2010, 81/2010 & 83/2010, unreported, 6
January 2011.
[4] Fok
J explained in the footnote here that “The right being ‘passive
or negative’ in the sense of prohibiting any interference with the
freedom of choice as opposed to imposing an active or positive duty
on the part of the Government to provide an employment.”
[5] CFA
Judgment Part D, [17]-[54].
[6] CFA
Judgment [74].
[7] Ma
CJ observed in the footnote here that “They deal largely with
issues of restraint of trade or analogous concepts.”
[8] As
a matter of fact, Re
Tailors of Ipswich Case, Nagle
v Feilden and Ho
Man Fat (No 2) v Royal Hong Kong Jockey Club were
cited to the Court of Final Appeal in GA
v Director of Immigration.
[9] Summarized
in [28] above.
上訴庭法官潘兆初在判詞中，引述終審法院前年就4名難民爭取在港工作被判敗訴的案例，指出《基本法》第33條提及「香港居民有選擇職業的自由」，只是保障市民免於被迫從事某職業，但並非賦予市民從事任何職業的權力，而大律師公會有關其會員從事副業的守則並無違反相關法例。
梁思豪回應查詢時表示，法官引用有關難民的案例，背景與本案不同，難以相提並論，又認為現時全球甚少地方的政府會強迫市民從事某職業，法庭理解《基本法》第33條只為保障市民免於被迫從事某職業是太狹隘，質疑該條文現時是否已經「無用」。
梁思豪認為，大律師公會只容許會員從事少數獲認可的副業，甚至容許會員同時全職出任議員及法律教授等，卻不容會員從事其他副業，做法有歧視成分。他認為只要該職業不違法，大律師有權選擇從事任何副業。
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