Dear Colleagues,

2004/2005 Civil Service Pay Adjustments

I write to inform you of the ruling of the Court of First Instance handed down yesterday on one of the applications for judicial review in relation to the Public Officers Pay Adjustments (2004/2005) Ordinance, Cap.580 (“the Ordinance”). The Ordinance implemented the civil service pay adjustments effective on 1 January 2004 and 1 January 2005 respectively.

In brief, the Court of First Instance has held that section 15 of the Ordinance is inconsistent with Article 100 of the Basic Law following an earlier judgment of a majority in the Court of Appeal, which is binding on the Court of First Instance, in respect of the judicial reviews relating to the Public Officers Pay Adjustment Ordinance, Cap.574. The Government has decided to appeal against the Court of First Instance’s ruling in this respect.

The Court of First Instance has held that the other grounds of challenge advanced by the Applicant in the judicial review proceedings fail. One of the grounds of challenge is that there was a constitutional obligation to conduct a Pay Trend Survey and that the failure to do so, whatever the reasons, constituted a breach of Article 103 of the Basic Law. In this respect, the Court of First Instance has held that Article 103 is not to be read as guaranteeing that a Pay Trend Survey must be conducted each and every time that it is contemplated that public service pay may be adjusted.

In my letter dated 18 December 2004, I informed colleagues that the Government had been granted leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision of 29 November 2004. The hearing before the Court of Final Appeal has now been scheduled for June 2005.

As I have assured colleagues in my earlier letter of 18 December 2004, in the event that the Court of Final Appeal declares one or both pieces of pay reduction legislation to be unconstitutional insofar as any public officer or class of public officer is concerned, then, subject to necessary funding approval, any arrears of pay due at the date of the Court of Final Appeal’s judgment will be paid to each officer concerned.

I shall keep you informed of further developments on this matter.

Yours sincerely,

(Joseph W P Wong)
Secretary for the Civil Service