Siu Chi Wan Vincent v Chief Executive of the HKSAR

Court of First Instance
High Court Action No 1131 of 2011
Godfrey Lam J in Chambers
Employment
30 October 2013

Employment—no inconsistency between reg. 411, which provided for forfeiture of retiring rights on dismissal, and Ordinance or Rules—section 5 of the Pensions Benefits Ordinance (Cap. 99) does not confer an automatic right to a pension on any officer in the service whose employment has been terminated

On 21 February 2005, P, a Principal Officer of the Correctional Services Department, was convicted of accepting an advantage without the permission of the Chief Executive (the “CE”) and given a suspended sentence. On 21 July 2005, the Secretary for Civil Service (as the “Secretary”) dismissed P from the service under r.255B(4) of the Prison Rules (Cap. 234A, Sub. Leg.) (the “Rules”) and informed him he would forfeit claims to any pension and other benefits. P applied unsuccessfully for judicial review of the dismissal. He then issued proceedings against the CE and the Secretary for his lump sum pension and monthly pension benefits. The Master struck out the writ and statement of claim and dismissed the action. P appealed, submitting a draft amended writ and statement of claim. P argued inter alia that reg. 411 of the Civil Service Regulations (the “CSR”), which provides that “[o]n dismissal from the Service an officer forfeits all rights or advantages of his appointment, and no retiring benefits are granted to him”, could not prevail over the statutory provisions of the Pension Benefits Ordinance (Cap. 99) (the “PBO”) or the Rules.

Held, dismissing the appeal, that:

On the proper construction of the PBO, Rules and CSR, P had no reasonably arguable claim for pension benefits.

Section 5 of the PBO did not confer an automatic right to a pension on any officer in the service whose employment had been terminated for whatever reason. To establish his right to a pension, P must first show he fell within one or more of the criteria under ss.11–17 which gave rise to the eligibility for the grant of a pension. Only then did the question arise as to whether the power to refuse to grant a pension was engaged.

It could be seen from ss.11–17 that a pension would ordinarily be granted only upon conditions linked, mostly, to the retirement of an officer. There was no provision for a pension to be granted to an officer who had been dismissed from the service. As such, there was no right to a pension on the termination of P’s service as a result of the disciplinary action taken against him. P’s complaint that the procedure for refusing, cancelling, suspending or reducing a pension under ss.29A and 29B of the PBO had not been followed was therefore misconceived.

P could not rely on the 2009 amendment to r.254 of the Rules which added the words “without retirement benefits” to the punishment of “dismissal”. Although in 2005, when P was dismissed, the rule did not specify that dismissal would lead to the forfeiture of pension benefits, this amendment did not show that P had any right to a pension on dismissal from the service. Thus, there was no inconsistency between reg. 411 of the CSR, the PBO or the Rules.

Jurisdictions

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