Woo Tak Yan v. Secretary for The Civil Service

HCAL 1640/2021

[2022] HKCFI 1465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1640 OF 2021

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D E C I S I O N

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A. Introduction

1.Some of the Applicant’s correspondence as a civil servant is almost an impenetrable jungle of words.  It needs an editorial machete to cut away the dense undergrowth and choking vines, in the hope of opening the path to any hidden sense, or allowing some light to shine on any roots of reason.

2.The Applicant was formerly working in the Environmental Protection Department (“EPD”).  On 3 September 2021, the putative respondent, the Secretary for Civil Service (“SCS”), directed that the Applicant be retired from the civil service in the public interest under section 12 of the Public Service (Administration) Order (“PS(A)O”) (“Decision”).

3.The Decision was based upon the SCS’s view that the Applicant: (1) had failed to duly sign and return the declaration required of civil servants, confirming that they will uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government, and (2) had subsequently failed to provide a reasonable explanation for the failure.

4.By his Form 86 dated 2 December 2021, the Applicant seeks leave to apply for judicial review against the Decision.

5.I directed the SCS to file an Initial Response to the application, and permitted the Applicant to file a Reply to that Initial Response.  Both documents were filed.  I also directed that the leave application would be dealt with at an oral hearing, because I thought that the matters apparently arising should be ventilated in open court, irrespective of the merits.  The hearing was fixed for 23 May 2022.

6.At the hearing, the Applicant appeared in person. The SCS was represented by Mr William Liu, Senior Assistant Law Officer (Civil Law) and Mr Aaron Lam, Assistant Law Officer (Civil Law) (Ag).

7.At the end of the hearing yesterday, I reserved my decision to be handed down today.  This is my Decision.

B.  The Requirement

8.Article 99 of the Basic Law expressly requires that public servants must be dedicated to their duties and be responsible to the Government of the HKSAR.

9.That requirement is also set out in the Civil Service Code – see §1.2 and chapter 2 – circulated to all staff by the Civil Service Bureau (“CSB”) in CSB Circular 9/2009.

10.Against that background and following the enactment of the National Security Law, in 2020, a decision was made that the CSB would impose a requirement (“Requirement”) that all civil servants should duly sign and return a declaration confirming that they will uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government.

11.For civil servants appointed before 1 July 2020, the CSB issued CSB Circular 2/2021 dated 15 January 2021(“Circular 2/2021”).  Circular 2/2021 identified (at §3) that:

(1)  the Requirement was introduced to enhance civil servants’ awareness of the expectations and responsibilities brought on them by their official positions; and

(2)  the Requirement was to give an open acknowledgement of the acceptance and a genuine manifestation of the responsibilities of and expectations on civil servants, which will further safeguard and promote the core values that should be upheld by civil servants, and ensure the effective governance of the HKSAR Government.

12.The consequences of failing to meet the Requirement were also made plain, because Circular 2/2021 further stated (at §7):

Neglect, refusal or failure to duly sign and return the declaration by the stipulated deadline without reasonable excuse reflects an officer’s refusal to acknowledge, accept and discharge the consistent duties of civil servants, and a serious lack of commitment to add here to the core values of the civil service which underpin good governments and help the civil service gain and retain the respect and confidence of the public.  As the civil servant’s commitment to adhere to the core values of the civil service is in serious doubt, the Government will, based on the facts of each case, initiate action to terminate the service of an officer who neglects, refuses or fails to duly sign and return the declaration.  In accordance with the mechanisms under the [PS(A)O] all the relevant disciplined services legislation as appropriate, representations as to why the course of termination should not be taken will be invited from the officer concerned.  The Government will consider the representations, if any as received, and will make a decision on the continuous employment or otherwise of the officer concerned.  For cases involving grades and ranks falling within the purview of the Public Service Commission (“the Commission”), advice of the Commission will be sought before a decision is made.

13.Annex A to Circular 2/2021 is a blank Declaration form necessary to complete for compliance with the Requirement.  It is a bilingual form (Chinese and English) already bearing the necessary wording of the Declaration.  The wording of the Declaration also has an asterisk, which points to the footnote stating “In case of any variation, addition or deletion to/of the declaration, the declaration will be rendered null and void”.  The person making the simple Declaration merely needs to fill out his or her ‘Name’, ‘Hong Kong Identity Card No.’, ‘Rank’, ‘Signature’ and ‘Date’ on the printed lines next to those items.

14.Annex B to Circular 2/2021 is the ‘Explanatory Note on the Content of the Oath or Declaration for Civil Servants’.

15.It is helpful to note at this juncture that there is no challenge to the legality of the Requirement.  The issue in this case centres on whether the Applicant “duly signed” the Declaration made by him (or any of the three versions of the Declaration made by him).

C.  Chronology of the Facts

16.Though the relevant analytical focus is on that short point – namely as to whether the Applicant “duly signed” the Declaration on 23 and 24 February 2021 – it may be helpful and instructive to put that into its chronological context.  Therefore, I will identify some, but by no means all, of the various exchanges involving the Applicant in the period up to the Declaration, as well as in the following period up to the making of the Decision the subject of the intended challenge.

17.By letter dated 27 January 2021, the EPD invited all EPD officers, including the Applicant, to sign and return the declaration in accordance with the Requirement by a stipulated deadline of 24 February 2021 (a period of four weeks).

18.The Applicant’s response was to send the first of a total of 29 memos to the EPD, which he sent between 1 and 23 February 2021, making enquiries about Circular 2/2021 and the Requirement. The first memo, dated 1 February 2021 (but apparently sent by fax on 2 February 2021) had a subject heading “CSBC 2/2021” and – it being the civil service style not to number the first paragraph – read as follows [sic]:

MUR received today and the subject refer.

2.  While I appreciate the intent of the above, I have no idea or whatsoever about the basis, say contractual, constitutional, administrative etc, of the requirement therein above.  To avoid any misunderstanding and to facilitate the accomplishment under the subject, would you please specify, in explicit manner and exhaust list, the provisions associated with, including but not limited to, the joint declaration, the Basic Law, the National Security Law, the csr, the appointment/employment contract and any applicable terms and conditions thereof.

3.  Further, would you please elaborate what is (i) in active service, say service of the notice of resignation/retirement; (ii) in serious doubt, say burden of proof associated; and (iii) to initiate action to terminate service, say violation of contract, or law & order.

4.  Would you please revert to me by 5.2, this Friday for my perusal.

5.  Thank you for your kind assistance.

19.Though sent by fax, and though a further version was sent by fax 13 minutes later with the hand written addition of the word “noon” in the deadline in paragraph 4, there is no manuscript signature. Instead the memo ends, as do all others in a similar format, with the typed ending “sd (T Y Woo)”. 

20.For the first time, very late in his oral reply submissions, the Applicant suggested that those various memos had been signed by him using the four characters he used on the Declaration (see below).  I do not accept that suggestion, not least when (a) I had earlier asked point blank whether he had ever suggested that he had used the characters prior to applying them to the Declaration – a question which the applicant preferred to avoid answering, despite it being asked several times, and (b) he had never suggested that before, in any of the correspondence which flowed from the way he made the Declaration.

21.On 4 February 2021, the EPD responded by email to the Applicant, as follows (bold and italics in original):

I refer to your memo on CSBC 2/2022 dd. 1.2.2021 received on 2.2.2021 via fax.  We have referred your memo to CSB for advice and below is our reply (incorporating CSB’s inputs) pertinent to your paragraphs in the aforesaid memo.

(a)  Para 2: see para. 2 to 5 of CSBC 2/2021

“2. It has consistently been the duty of civil servants to uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government under the Basic Law and the Civil Service Code. All civil servants should in no uncertain terms acknowledge and accept these duties.

3. In order to enhance civil servants’ awareness of the expectations and responsibilities brought on them by their official positions, this circular introduces and arrangement to require all civil servants who were appointed to the civil service before 1 July 2020 to declare that they will uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government. This is an open acknowledgement of the acceptance and a genuine manifestation of the responsibilities of and expectations on civil servants, which will further safeguard and promote the core values that should be upheld by civil servants, and ensure the effective governance of the HKSAR Government.

4. It is also of relevance that Article 6 of “The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” (“National Security Law”), which was enacted and promulgated in Hong Kong on 30 June 2020 and came into effect at 11 p.m. on 30 June 2020, stipulates that “[a] resident of the [HKSAR] who stands for election or assumes public office shall confirm in writing or take an oath to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China in accordance with the law”.

5. Against the background set out above, all civil servants will be required to sign a declaration in the manner specified below save that civil servants appointed to senior positions such as Heads of Department will be additionally required to take an oath, the contents of which would be the same as the declaration referred to in paragraph 6 below.”

(b) Para 3(l): see Q4 and 5 of the FAQs on CSB website

“Q4 For civil servants who will soon retire, are they still required to take the oath or sign the declaration?

A4 Generally speaking, all civil servants who were appointed to the civil service before 1 July 2020 and are still in active service as at the date of promulgation of the circular by the Civil Service Bureau to all departments are required to sign the declaration. Enquiries concerning the detailed arrangements for individual officers should be directed to the departments concerned.

Q5 For civil servants who resign, are they still required to take the oath or sign the declaration?

A5 Generally speaking, all civil servants who were appointed to the civil service before 1 July 2020 and are still in active service as at the date of promulgation of the circular by the Civil Service Bureau to all departments are required to sign the declaration.  If a civil servant has served notice to resign, the department will normally not require him/her to sign the declaration. However, enquiries concerning the detailed arrangements for individual officers (e.g. where the officer will remain in service for a period longer than the usual resignation notice period) should be directed to the departments concerned.”

(c)  Para 3(ii) and (iii): see para. 7 of CSBC 2/2021

“7. Neglect, refusal or failure to duly sign and return the declaration by the stipulated deadline without reasonable excuse reflects an officer’s refusal to acknowledge, accept and discharge the consistent duties of civil servants, and a serious lack of commitment to adhere to the core values of the civil service which underpin good governance and help the civil service gain and retain the respect and confidence of the public. As the civil servant’s commitment to adhere to the core values of the civil service is in serious doubt, the Government will, based on the facts of each case, initiate action to terminate the service of an officer who neglects, refuses or fails to duly sign and return the declaration. In accordance with the mechanisms under the Public Service (Administration) Order (“PS(A)O”) or the relevant disciplined services legislation as appropriate, representations as to why the course of termination should not be taken will be invited from the officer concerned. The Government will consider the representations, if any is received, and will make a decision on the continuous employment or otherwise of the officer concerned. For cases involving grades and tanks falling under the purview of the Public Service Commission (“the Commission”), advice of the Commission will be sought before a decision is made. Where the concerned civil servant is on probationary or agreement terms, his/her probationary or agreement terms service shall be terminated in accordance with the Civil Service Regulations and terms of agreement.”

2. You may also like to refer to CSB website for the video and FAQs for information (https://www.csb.gov.hk/english/admin/oathserving/2769.html)

22.Nevertheless, despite that response, on 5 and 8 February 2021 the Applicant sent four further copies of his 1 February 2021 memo by fax to the EPD.  On 8 February 2021, the EPD sent an email to the Applicant referring to the four further memos received, and the fact that a reply had already been sent in its preceding email (which was set out in full immediately below in the email chain).

23.Notwithstanding that, the Applicant continued to send further copies of his 1 February 2021 memo.  Then, the Applicant sent a memo dated 11 February 2021, under the same heading “CSBC 2/2021”, which read as follows [sic]:

The subject and 13 Urgent Reminder sent thereafter deadline of noon 5.2 refer.

2.  While ample time was taken for your launch of the subject, it seems that it carries no basis, say contractual, constitutional, administrative et cetera, of the requirement thereinabove. Otherwise and as said, would it be your neglect, refusal or failure to explicate such fundamental concerns to staff concerned without reasonable excuse reflects your refusal to acknowledge, accept and discharge your consistent duties, and a serious lack of commitment to adhere to the core values of the civil service which underpin good governance and help the civil service gain and retain the respect and confidence of the public.

3.  Would you be urged to revert to me by noon of 16.2, next Tuesday, thank you for your kind assistance.

24.The Director of EPD replied to the Applicant by memo of 11 February 2021, stating:

I refer to your 11 memos dd. 1.2.2021 on CSBC 2/2021 received on 9.2.2021, 10.2.2021 and 11.2.2021 for which the reply had already been sent to you on 4.2.2021 and 8.2.2021 as shown at Annex.

2.  In addition, we have referred your memo dd.  11.2.2021 received by fax this afternoon to CSB for advice where they said that they have nothing further to supplement.

25.On 16 February 2021, the Applicant sent a further memo under the heading “CSBC 2/2021”, which read as follows [sic] (underlining in original):

MUR received today and the subject refer.

2.  With respect, I found no content or whatsoever therein above addressing those fundamental concerns raised via memos of 1 & 11.2 to avoid any misunderstanding and to facilitate the accomplishment under the subject.

3.  First of all, please be assured the subject had been thoroughly studied before raising any concern.  However, there was not any single provision revealed therein above despite my specific request for such associated with, in explicit manner and exhaust list, including but not limited to, the joint declaration, the Basic Law, the National Security Law, the csr, the appointment/employment contract and any applicable terms and conditions thereof, and your repetition of “para 2 to 5 of CSBC2/2021” was of, with all due respect, NOTHING at al!  In particular, joint declaration (the basis of Basic law, my emphasis) had been announced no effect by central government; the Basic law, if not dismissed by the preceding announcement, had long been wrongly understood, with all due respect, by various top rank officers and renowned celebrity/professionals &/or even wrongly interpreted, with all due respect, by CFV (and therefore laid the several interpretations made by the standing committee); and not to mention any retrospective effect by any clause of the National Security Law, the csr, the appointment/employment contract and any applicable terms and conditions thereof particularly it was given to understand NEW requirement would only apply to those colleagues appointed to service after 21.5.20 (unless rules of game changed, my emphasis)!

4.  Further, there was neither any elaboration (but quote of “Q4 and 5 …”, “para 7 of CSBC2/2021”, my emphasis) upon what is (i) in active service (including but not limited to on significant time of leaves a sick or no pay or pre-retirement or the like?), say service after notice of resignation/retirement; (ii) in serious doubt, say burden of proof associated; and (iii) to initiate action to terminate service, say violation of contract, or law & order.

5.  Would you please revert to me by noon tomorrow.  Thank you for your kind assistance.

26.On 16 February 2021, the Director of the EPD replied by memo to inform the Applicant that his memo (of the same date) had been referred to the CSB for advice, and they said they had nothing further to supplement.  The Applicant was also informed that “active service” – referred to at his para 4(i) – includes those officers on sick leave and vacation leave, but excludes those on pre-retirement leave.

27.On 17 February 2021, the Applicant sent a further memo which read as follows [sic]:

MUR received today and the subject refer.

2.  With respect and as said, would it be your neglect, refusal or failure to explicate fundamental concerns to staff concerned with reasonable excuse reflects your refusal to acknowledge, accept and discharge your consistent duties, and a serious lack of commitment to adhere to the core values of the civil service which underpin good governance and help the civil service gain and retain the respect and confidence of the public.  After all, it is your duty of care and you are having nothing further to supplement not being responsible leadership to keep staff adequately informed of what had been unrevealed/not been disclosed particularly upon enquiries raised via official invitation therein the subject.

3.  Would you please revert to me by noon tomorrow, thank you for your kind assistance.

28.By a response of the same date, the Director of the EPD simply confirmed that CSB had nothing further to supplement.  So the Applicant sent a further memo dated 18 February 2021, which read as follows [sic]:

MUR received today and the subject refer.

2.  Regrettably, you still have nothing further to supplement despite your non-disclosure in full.  On the face amongst and further to those concerns I raised before, it was misled if not mistook to mix up duties and responsibilities, which all along incorporated into civil service, with the declaration.  The precedent of similar arrangement introduced: “New requirement for appointment to civil service on or after July 1” (enclosed hearing fyr) was crystal and clear that the declaration was a New requirement in addition to and as term of appointment unless with retrospective effect and consent from the staff concerned, such New requirement shall not be applied to serving officer under similar treatment via circular (whether the effect of the circular itself could be another arguable issue, say as stand-alone order rather than circular which requires different authority/power). Otherwise, the declaration would be treated under scope of public officer &/or assuming public office as the case of district council member.

3.  Would you please revert to me by noon tomorrow, thank you for your kind assistance.

29.By his memo of 19 February 2021, the Applicant suggested that the deadline of noon had elapsed, with a response still pending, and asked for the EDB to revert to him by 1500 hours.  By a further memo of the same date, the applicant suggested the deadline of 1500 hours had elapsed, and asked the EDB to revert to him by 1700 hours.  By various subsequent memos on 22 February 2021, the Applicant purported to extend the deadline for the EDB to revert to him.

30.Eventually, on 23 February 2021, the Applicant wrote a memo, sent by fax, headed “Account on proceeding with CSBC 2/2021”, which read as follows [sic]:

MUR (enclosed herein, A1 w/o chinese version) received on 1.2 and my series of memo refer.

2.  I raised, via A2 herein enclosed, fundamental concerns to avoid any misunderstanding and to facilitate the accomplishment under the subject and requested a reply by 5.2 noon.  Thereafter, 13 Urgent Reminder had been sent for response which was faxed out at 1728hrs of 11.2 (enclosed herein, A3) incorporating mere repetition of contents of CSBC 2/2021 and FAQs on CSB website but in fact left most, if not all, concerns unattended.

3.  On 16.2 upon returning after lunar holiday, I emphasised, via A4 herein enclosed, amongst others “In particular, joint declaration (the basis of basic law, my emphasis) had been announced no effect by central government; the basic law, if not dismissed by the preceding announcement, had long been wrongly understood, with all due respect, by various top rank officers and renowned celebrity/professionals &/or even wrongly interpreted, with all due respect, by CFV (and therefore laid the several interpretations made by the standing committee); and not to mention any retrospective effect by any clause of the national security law, the csr, the appointment/employment contract and any applicable terms and conditions thereof particularly it was given to understand NEW requirement would only apply to those colleagues appointed to service after 21.5.20 (unless rules of game changed, my emphasis)” for your visit.

4.  There being nothing further to supplement against the preceding and that of 17.1 (A6 herein enclosed) in your replies of 16.2 (A5 herein enclosed) and 17.1 (A7 herein enclosed) correspondingly, I raised, via A8 herein enclosed, further concerns on “New requirement”, “authority” to introduce such requirement and “scope of public officer &/or assuming public office”.  There was still no reply despite 5 reminders of A9, A11-14 thereafter.

5.  As it is close to deadline of 24.2, further advice, via A15 herein enclosed, was sought on the way forward, including but not limited to the above, that resignation or retirement be directed to the department so referred in the earlier reply of A3.

6.  As stated therein CSBC 2/2021 that “It has consistently been the duty of civil servants to uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government …”, it would be for those appointed before 1.7.1997 a conflict, taken lightly, of “double allegiance (to colony before)” or even serious accusation under NSL particularly highlighted therein (though it was said NSL had no retrospective effect but god knows as far as CCP was concerned).  Such open acknowledgement, if proceeded, would be hard evidence of the contrary to “the acceptance and a genuine manifestation of the responsibilities of and expectations on civil servants …” put against thereafter.

7.  Last but not least, it was learnt from the media (A17 herein enclosed) that CS had made some comment of “公務員亦可有自由選擇, ‘唔做政府工’, ‘唔入政府咪得’, however with respect barely it was a choice, out of freedom, for anyone to keep the job out of political declaration as against simply “打份工唧播”!

8.  Unless all the above could be shown and set out in clear terms and explicit manner to be resolved beyond and without doubt, it would only be misunderstanding, mistake, misleading, misrepresentation or the like to be accomplished with the declaration.

9.  Thank you for your kind attention.

31.Attached to that memo was the Applicant’s Declaration form (“1^st Declaration”), with his name, ID number and rank printed in the right places, and the date of 23 February 2021 hand written in Chinese.  Against the reference to ‘Signature’ were the handwritten words “昭昭日天” if read from left to right, or “天日昭昭” if read from right to left.  Though nothing turns on the point, the memo suggests that the 1^st Declaration had been additionally submitted via dispatch, but the EPD says it never received the hard copy.

32.After receiving the 1^st Declaration, the EPD in consultation with the CSB issued a memo to the Applicant on 24 February 2021, notifying him of the CSB advice that “it should be treated as failure to have duly signed the declaration where the Government will, based on the facts of each case, initiate action to terminate the service of the officer”.  The Applicant was reminded of §7 of Circular 2/2021 and also reminded that he should duly sign and return an original declaration by the deadline of 24 February 2021.  It might be noted that there was no obligation to have notified the Applicant at that time, but the Applicant was in essence told of the problem and had time to remedy it within the reminded deadline.

33.Notwithstanding that reminder, the Applicant simply re-submitted the Declaration to EPD by fax (“2^nd Declaration”) and by hand (“3^rd Declaration”), inserting again the words “昭昭日天” if read from left to right, or “天日昭昭” if read from right to left, so that those words appeared twice in the space for signature.  The 3^rd Declaration was made in front of staff with some responsibility for accepting the Declarations from civil servants.

34.By its letter dated 5 March 2021, the EPD sought from the Applicant his explanation for his failure to duly sign and return a Declaration before the deadline of 24 February 2021.

35.The Applicant’s initial response was by way of his memo dated 8 March 2021, which read as follows [sic] (bold, underlining and capitals in original):

MUR, and my series of memo since 11.2 responding to your another letter of 27.1 under ref of EPD PR/5-85/1 mentioned therein MUR and associated series thereafter refer.

2.  First of all, any failure alleged therein MUR, which was out of malice, is categorically denied and you are put to strict proof thereof.  Each and every allegation therein MUR is denied as if the same was set out herein and expressly traversed seriatim.

3.  Further, any explanation or whatsoever made thereto MUR was on without prejudice basis. The following was demanded before any attending the subject by 12.3, the deadline.

4.  As expressly stated therein my preceding memo of 24.2 addressing yours of even date faxed at 1608hrs received by me just minutes before duty-off on or around 1648hrs that “Please explicate the so-alleged “treated as failure” and/or “failure”” in which such referred to “failure to have duly signed the declaration” whereas “failure to duly sign and return the declaration” under the subject was a different one.  Please explicate such difference with consideration associated and supporting document which was of no sight in both correspondences.  Further going into details of MUR, it was found your alleged view that “we have not received your duly signed declaration as at the deadline of 24 February 2021” which was again different from the subject, please explicate such difference with consideration associated and supporting document which was of no sight therein MUR.  Further in the paragraph reminding CSBC 2/2021, it was “neglect, refusal or failure … without reasonable explanation” but the subject only concerned “refusal”, please explicate such difference with consideration associated and supporting document which was of no sight therein MUR.

5.  Further and as expressly stated therein my preceding memo mentioned above that “I really do NOT understand CSB’s advice”, but now I really do NOT know what party had made any advice and what was that advice, if any.  Please disclose such with specific details (NOT in general term say management), consideration associated and supporting document.

6.  Further and as expressly stated therein my preceding memo mentioned above that “Despite my various concerns, including but not limited to para 7 of the subject, expressed under series of memo, only repetition of the paragraph but nothing more which do NOT help any understanding of such”, please DO now attend those outstanding concerns with specific details, consideration associated and supporting document which was of no sight therein any of your correspondence all along and so far.

7.  Further and as expressly stated therein my preceding memo mentioned above that “It had not ever been specified in the way of MUR “to the Personnel Services Section (Address: Suite 1201, Guardian House, 32 Oi Kwan Road, Wanchai, Hong Kong)”!”, please explicate such difference with consideration associated and supporting document which was of no sight therein MURs.  Further and as expressly stated therein your letter of 27.1 that “… and in any event not later than 10 working days after the declaration is received.  If you have submitted a duly signed declaration but have not accordingly received the acknowledgement, you should make enquiries with Deputy Departmental Secretary(Personnel) at the telephone no. shown on the next page”, there would at least be a “grace period”/“allowance” of 10 working days (not yet expired until 10.3) for making enquiries about any receipt of the declaration and even not including those days to allow the “submitted” declaration received late eventually in such case by reasonable expectation, please explicate such different treatment against me (in my case, it would be accordingly so allowed to make enquiry on 10.3 latest regarding expected receipt by 24.2 of declaration despatched on 23.2) with specific details, consideration associated and supporting document which was of no sight therein MURs.

8.  Having said all of the above, indeed no fact was provided therein MUR to substantiate your case say what fact, such as “received by fax in the afternoon of 23 February 2021” as stated therein your earlier memo of 24.2 or the like, was found and considered.  It was merely bare allegation made therein MUR without supporting fact, not mentioned any evidence.

9.  As you must have fully prepared before proceeding the subject, this is only piece of cake for you to attend the above and therefore would you please revert to me by 1648hrs today in the way you serve MUR ie by hand via E(TC)21 with GF 121 as enclosed.  If I do NOT receive any of your supplement, you will be treated as having no evidence and none be allowed thereafter.  Thank you for your kind attention.

10.  In view of the very short period of 7 days to provide explanation as required particularly you got 2 weeks to prepare for the subject and further supplement as requested hereinabove is pending, I would like to have an extension of 14 days ie by 26.3 or 7 days if no evidence provided by you.

11.   All my rights are hereby expressly reserved.

36.On 9 March 2021, the Applicant sent a further memo (to DDS(P)) which read as follows [sic] (capitals and underlining in original):

MUR, and my series of memo since 1.2 refer.

2.  As expressly stated therein MUR that “This department will acknowledge receipt of your signed declaration as soon as possible and in any event not later than 10 working days after the declaration is received.  If you have submitted a duly signed declaration but have not accordingly received the acknowledgement, you should make enquiries with Deputy Departmental Secretary(Personnel) at the telephone no. shown on the next page” (emphasis added), I write ahead of deadline ie 10.3, instead of making oral one via phone as stated, to inform you that I still do NOT receive your acknowledging receipt of the signed declaration despatched on 23.2 to you as required therein MUR, and to enquire whereabout your such acknowledgement.

3.  Would you please revert to me by 11.3 noon, thank you for your kind assistance.

37.On 10 March 2021, the Director of the EPD replied to the Applicant that as he had already received and read a letter to him pointing out the EPD’s statement that they had not received a duly signed declaration before the deadline, hence no acknowledgement would be issued.

38.On 11 March 2021, the Applicant was informed that no extension of deadline would be given for him to respond to the request made on 5 March 2021 for a written explanation.  Therefore, on 12 March 2021, the Applicant wrote a memo, the body of which read as follows [sic]:

MUR, and my series of memo since 1.2 responding to your another letter of 27.1 under ref of EPD PR/5-85/1 mentioned therein MUR, and current series of 8.3 refer.

2.  First of all, any failure alleged against me therein MUR, which was out of malice, is categorically denied and the unconfirmed authority (Mr Andrew Leung, DDS(P), ‘the management’, AS(Appt)/CSB, SCS and/or others involved) making such allegation is put to strict proof thereof.  Each and every allegation against me therein MUR is denied as if the same was set out and expressly traversed seriatim.

3.  Further, there was indeed no fact enlisted to substantiate your case say what fact, such as “received by fax in the afternoon of 23 February 2021” as stated therein your earlier memo of 24.2 or the like, so found and considered.  It was merely bare allegation made without supporting fact, not mentioned any evidence. Despite my latest reminder of 8.3, there was still no response except the refusal of extending deadline requested therein (enclosed herein) and you will be treated as having no evidence or whatsoever accordingly.  It is your burden to prove the case, the failure of discharging such would be concluded no case at all – 何失之哉.

4.  Further and without prejudice, the explanation sought therein MUR was enclosed herein for consideration by the ‘management’ as alleged, without specifying say CSB or whichever, thereinabove.

5.  All my rights are hereby expressly reserved

39.Attached to that memo was a further document headed ‘Explanation for failure to duly sign and return the declaration’, which read as follows [sic]:

First of all, any failure alleged against me, which was out of malice, is categorically denied and the unconfirmed authority (Mr Andrew Leung, DDS(P), ‘the management’, AS(Appt)/CSB, SCS and/or others involved) making such allegation is put to strict proof thereof.  Each and every allegation against me is denied as if the same was set out and expressly traversed seriatim.

2.  Further, there was indeed no fact or whatsoever enlisted to substantiate the case say what fact so found and considered.  It was merely bare allegation made without supporting fact, not mentioned any evidence.

3.  The explanation or whatsoever made herein was on without prejudice basis.

4.  The declaration was signed and returned as required.  In particular, it was averred that:

4.1  an original declaration annexed to the letter of 27.1, despite reply to various concerns/enquiries raised since receipt of such on 1.2 was still outstanding, had been signed and returned, enclosed therein memo of 23.2 (copy of such as annexed A herein), to DDS(P) as required therein the letter in that morning via dispatch;

4.2  the above copy, Annex A, had also been faxed to 21231977 at or around 1745 hours that day as additional measure;

4.3  another original declaration, signed against the above copy therein, had been returned to the Personnel Services Section, as required by DDS(P) via an urgent memo of 24.2 faxed at or around 1608 hours that day (copy of such was annexed B herein), enclosed in a reply memo of 24.2 which was faxed to 21231977 at or around 1725hours before the departure to above office in person.  However, the handling staff there at scene, ACO(PR)6 instead of DDS(P) as specifically I asked for upon arrival at or around 1750hours, acting under instruction behind scene received the original memo (copy of such was annexed C herein) whereas he declined to receive the above original signed declaration (copy of such was annexed D herein) merely because of such was on recycled paper;

4.4  at his taking instructions back and forth thereafter, a third original declaration signed before him at scene against the fax copy of 23.2 had been received eventually (copy of such was annexed E herein);

4.5  I left the above office at or around 1838hours

5.  I eye witnessed 3 signed declarations already received by your office, two via fax on 23.2 (annex E herein, without my countersign) & 24.2 (brought out by ACO(PR)6 before me at scene in above office but the signed original I brought along with annex C was declined to be received, annex D herein), and one in person that I signed before ACO(PR)6 at scene in above office on 24.2 (annex E herein).

6.  Surprisingly, a letter was served on 5.3 via E(TC)21 (copy of such was annexed F herein) alleging therein that “we have not received your duly signed declaration as at deadline of 24 February 2021” and such was, simply in fact, false.

7.  On my returning from leave to office on 8.3, while I attended the above via reply memo (copy of such was annexed G herein, typo corrected and signed against), I was also given to understand from E(TC)21 an interesting event that CA(TC)1 had found on the same day of 5.3 a fax of 8.9.20 from CE office to me (copy of such was annexed H herein) and I had verified such with the fax log thereafter (copy of such was annexed I herein).  Coincidentally on 10.3 morning, I had spotted a letter dropped out from the parcel bag on dispatch and told the handling colleague to pick it back.  The letter might get lost if no one noticed.  These two real life cases had illustrated that indeed you owed duty of care and diligence to get the declaration received in due manner and acted in neglect, refusal and/or failure such as the enquiry about your acknowledgement (copy of such was annexed J herein) which was given repetition of a false premise of “we have not received your duly signed declaration as at deadline of 24 February 2021” (copy of such was annexed K herein).

8.  Though signature would not be an issue, I noted there was no qualification/requirement of signature which was whatever the signatory signed.

9.  In view of the above, the allegation against me must be dismissed and in anyway your seeking explanation upon such was without ground and evidence.

10.  As stated therein my series of memo since 1.2, further argument could be advanced say basis for the requirement of the declaration if circumstances warrant.

11.  All my rights are hereby expressly reserved

40.The EDB took into account the Applicant’s letter of 12 March 2021, but did not consider that the Applicant had put forward any reasonable explanation for his failure to duly sign and return the declaration by the stipulated deadline.  The EPD’s view was strengthened by the observation that the Applicant had never signed with “天日昭昭” in his P-file or official memoranda and correspondence he had issued as an EPD officer prior to his submission of the Declarations.  Therefore, by way of a report to the CSB on 9 April 2021, the EPD recommended that consideration be given to requiring the Applicant to retire from the civil service in the public interest under section 12 of the PS(A)O, on the ground that the HKSAR Government has lost confidence in the Applicant’s suitability to continue discharging his duties as a public officer.

41.By letter of 12 April 2021, the Applicant was notified that he was interdicted from duty with immediate effect.  This apparently led to certain media reports, which triggered a press release issued by the EPD on 23 April 2021.  As well as noting that relevant interdicted employee had been given the whole day to pack his personal belongings on 12 April 2021, the press release included the following passage:

The employee submitted three declarations in total, but irrelevant wording was written in the signature box each time.  Taking into consideration various factors and the situation, the EPD interdicted the employee concerned … as he had failed to return a duly signed declaration by the stipulated deadline without reasonable explanation.

42.On 28 April 2021, the Public Services Committee of Hong Kong Confederation of Trade Unions wrote on behalf of the Applicant to the SCS, relating to the interdiction.  Amongst other things, the letter stated that it was from the press release on 23 April 2021 that the Applicant new for the first time that the government authority was accusing him of “writing other wordings in the signature box”.

43.The CSB agreed with the EPD’s view that the Applicant had not put forward any reasonable explanation for his failure. Hence, the CSB issued a letter of intent to the Applicant on 3 May 2021, informing him of the CSB’s intention to take section 12 action, and inviting him to make representations within 14 calendar days.

44.Also on 3 May 2021, the EPD issued a memo to the Applicant in response to questions raised by him on 12 April 2021 concerning his interdiction.  It enclosed the CSB’s comments including:

In your case, while you submitted three declarations in total on 23 and 24 February 2021, we note that you had put irrelevant wording in the signature box each time.  As such, none of these declarations was duly signed. Accordingly, we had not received from you, by the deadline of 24 February 2021, a duly signed declaration and, as such, we sent you another letter on 5 March 2021 to invite you to explain in writing by 12 March 2021 as to why you had neglected, refused or failed to duly sign and return the declaration.

45.The Applicant provided the CSB with his representations against section 12 action in a memo dated 15 May 2021, which enclosed a further document said to be an integral part of the memo, but made on a ‘without prejudice’ basis.  The body of the memo read as follows [sic]:

Representation against PS(A)O s12

MUR sent out around 1843hrs and my series of memo since 1.2 particularly those of 5 & 12.5 attending LOI in the series, and of 8, 12.3 & 1.5 attending EPD’s letter of 5.3 refer.

2.  With respect but regrettably again, not a single supporting document associated with your/EPD’s action so far was provided therewith MUR including but not limited to those I had already specified for you, that is IoA, the procedural guideline or the like (exact title missed) on the PS(A)O, the report of 9.4 revealed therein 3.5 LOI, the document under files of EPD PR/5-85/1, EPD CR WOO/TY/D, EF(13) in CSBCR/DC/5-020-006/97-2 related to situation and factors considered in proceeding with my case.  As already repeatedly stated therein my preceding memos, it would be wrong to proceed with the subject, without disclosing any or all document associated, particularly before any invitation of representation.

3.  Having said the above, indeed no fact nor circumstance was provided therein LOI in the series to substantiate your case say what fact/circumstance was found and considered.  It was merely bare allegation made therein LOI in the series without supporting facts / circumstances say what “irrelevant wording” written / put in signature box (denied / not admitted), not mentioned any evidence and/or justification say any requirement in CSBC 2/2021 stipulated for “duly signed” if other than written / put in signature box (denied / not admitted) which had not been identified ever since associated decision / consideration of “various factors and the situation” but just until 23.4 despite my queries put forward for clarification.  In fact, it could be demonstrated to the contrary and hard evidence be presented for my duly signed declaration returned on 23.2 which borne my signature therein.

4.  Further, any allegation against me since 24.2, including but not limited to (i) CSB’s advice, vide EPD’s memo of 24.2, regarding my duly signed declaration returned on 23.2 that “it should be treated as failure to have duly signed the declaration where the Government will, based on the facts of each case, initiate action to terminate the service of the officer”, (ii) EPD’s alleged view of 5.3 that “we have not received your duly signed declaration as at the deadline of 24 February 2021” expressed therein its seeking “explanation for failure to duly sign and return the declaration”, (iii) your view of LOI that :you have not returned a duly signed declaration (as mentioned in paragraph 5 below) by the stipulated deadline as required, and have not provided any reasonable explanation” (paragraph 1 therein), “By the deadline of 24 February 2021, EPD had not received from you a duly signed declaration … as to why you had neglected, refused or failed to duly sign and return declaration” (paragraph 5 therein), PS(Env)/DEP “is of the view that you have not put forward any reasonable explanation for your neglect, refusal or failure to duly sign and return the declaration by the stipulated deadline” (paragraph 6 therein), (iv) the clarification by EPD vide press release of “EPD respects employees’ rights and strongly refutes misleading allegations / 環保署尊重員工權利嚴正澄清誤導言論” on 23.4 that “… but irrelevant wording was written in the signature box each time … as he had failed to return a duly signed declaration by the stipulated deadline without reasonable explanation” / “… 但他每次均在簽署欄中填寫其他字句。由於該名員工沒有在限期前交回妥為簽署的聲明，亦未能提供合理解釋...” (paragraph 2 therein), and (v) the latest comment by SCS say vide news report of 27.4 by Cable News “… 但聲明內簽署上，三次都寫了其他字句，所以不符合為簽署聲明要求。”, and (vi) CSB’s response, vide EPD’s memo of 3.5 that “In your case, while you submitted three declarations in total on 23 and 24 February 2021, we note that you had put irrelevant wording in the signature box each time.  As such, none of these declarations was duly signed” (paragraph 3 thereto Q1) is categorically denied and the unconfirmed authority (Mr Andrew Leung, DDS(P), ‘the management’, AS(Appt)/CSB, SCS and/or others involved say SEO(C&D)5) making such allegation is put to strict proof thereof.  Each and every allegation against me is denied as if the same was set out and expressly traversed seriatim.

5.  In view of those new allegations revealed in the press release of 23.4pm hereinabove, I wrote a memo of 1.5 for a review but it was ignored in the reply of 11.5 by merely reiterating those as of 12.4 letter.  Another series of memos since 4.5 expressed my despair under any or all of EPD’s action causing collateral damage or the kind to me (mentally deteriorated much these days the long term illness I had been suffering) and to my working place I dedicated to all along (as part of my living place as well in terms of time I spent here) in a total extent like extincting my existence and associated, not interdiction at all but alleged NOT punishment, just like taking leave so advised in 12.4 discussion!

6.  Anyway, the treatment upon me particularly that of preceding paragraph was nothing, when contrasted with the recent up storm of Police national security director Frederic Choi Chin Pang still staying up in the directory, but an action stigmatized by its literal name indeed.  Rules and regulations not applied equally across the service was so demonstrated.

7.  Further and without prejudice, the subject representation was enclosed herein for your consideration as stipulated therein LOI.

8.  All my rights are hereby expressly reserved.

46.The enclosure read as follows [sic]:

Representation as to why s12 not be invoked and retirement not be required

The representation, as integral part of the memo, made herein was on without prejudice basis.

2.  The declaration was signed and returned as required.  In particular, it was averred that:

2.1  as to its reasonableness in the circumstances, my explanation of 12.3 was upheld that (i) the clarification by EPD vide press release of “EPD respects employees’ rights and strongly refutes misleading allegations” on 23.4 that “The employee submitted three declarations in total …” (paragraph 2 therein), and (ii) the latest comment by SCS say vide news report of 27.4 by Cable News “… 第一他有提交聲明回來，…”, and (iii) CSB’s response, vide EPD’s memo of 3.5 that “In your case, while you submitted three declarations in total on 23 and 24 February 2021, …” (paragraph 3 thereto Q1);

2.2  “written / put in signature box” is of no difference from “sign in signature box” which could be of anything in different font / sign / style as signature say a ‘x’ or “irrelevant wording” so far it is of the signatory, by the signatory and for the signatory, etc and after all such is acknowledged and/or affirmed in person and signature is basically hand writing.  In the present case, it was assured at least once before EPD staff in its designated office on its demand had I signed / written / put my signature in signature box before the deadline of 24.2, and also on another record that EPD accepted and/or admitted now alleged “irrelevant wording written / put in signature box” under the advice of DoJ in a legal action before 23.4 press release;

2.3  name could be of “irrelevant wording” but still a name which is of various names say first, middle, last, alias, christian or other religious, given or assigned, self made etc;

2.4  “irrelevant wording written / put in signature box” so alleged but not stipulated therein CSBC 2/2021 any specific requirement in express terms for “duly assigned” nor identified as “unduly signed” therewith the decision / consideration of “various factors and the situation” despite my queries put forward thereto for clarification is of ultra vires, all in all no authority shall have any power to dictate or manipulate any individual how to signify or sign own signature;

2.5  separate declaration enclosed herein demonstrates and presents hard evidence upon my duly signed declaration returned on 23.2 which borne therein my signature elsewhere;

2.6  special feature may arise say authorised signature but definitely this is not the present case, nor any specimen be required to be verified against genuine one.

3.  It was unfair, and wrong, to amend / change those unfound allegations against me along the proceedings that (i) CSB’s advice, vide EPD’s memo of 24.2, regarding my duly signed declaration returned on 23.2 that “it should be treated as failure to have duly signed the declaration where the Government will, based on the facts of each case, initiate action to terminate the service of the officer”, (ii) EPD’s alleged view of 5.3 that “we have not received your duly signed declaration as at the deadline of 24 February 2021” expressed therein its asking my explanation for “failure to duly sign and return the declaration”, (iii) your view of LOI that “you have not returned a duly signed declaration (as mentioned in paragraph 5 below) by the stipulated deadline as required, and have not provided any reasonable explanation” (paragraph 1 therein), or “By the deadline of 24 February 2021, EPD had not received from you a duly signed declaration … as to why you had neglected, refused or failed to duly sign and return the declaration “ (paragraph 5 therein), or PS(Env)/DEP “is one of the view that you have not put forward any reasonable explanation for your neglect, refusal or failure to duly sign and return the declaration by the stipulated deadline” (paragraph 6 therein).  Amongst others, it should be elementally distinguished (i) “failure” from “neglect” and “refusal” (LC paper no CB(4)773/20-21(04) should be of updated reference), and (ii) “returned” from “received” but not in those unfound allegations/considerations hereinabove.

4.  In view of any or all of the above, any allegation against me must be dismissed and in anyway the course of termination should not be taken in my case.

5.  All my rights are hereby expressly reserved.

47.Also enclosed were copies of some other documents provided to other departments, with the words “昭昭日天” put in the signature boxes, intending to demonstrate that the Applicant had used such words in other documents as his signature, which had been accepted by the respective departments.  However, all of the dates on those documents were redacted, so that the Applicant deliberately obscured when those documents were “signed” in that manner.

48.Having taken into account the Applicant’s further representations, the CSB did not consider that the Applicant had put forward any valid ground for varying the recommendation of retiring him in the public interest under section 12.  The CSB’s assessments – as set out in Step 5 of the case proforma – included that:

(1)  the absence of any specific requirement for “duly signed” does not mean that any sign or word used by a person as his signature should be accepted; it depends on reasonableness;

(2)  further on reasonableness, the CSB shared the EPD’s view is that the Chinese words inserted by the Applicant into the signature box should not be regarded as a valid signature for the purpose of signing the Declaration as required under Circular 2/2021.  The words appeared irrelevant, could not be associated to the name of the Applicant, and had not been used by him in previous documents;

(3)  in examining an officer’s signature, where the words show no apparent connection with his or her name, it is reasonable for the respective department to check against its records for his or her previous signatures;

(4)  the acceptance of certain words used as his or her signature by other departments for their respective business does not mean that the EPD and/or the CSB would have to accept such words as a valid signature for the purpose of the declaration.

49.By memo dated 15 July 2021, the CSB recommended to the PSC that the Applicant should be required to retire in the public interest under section 12.  The PSC replied by its memo dated 26 July 2021 supporting the CSB’s recommendation.

50.On 3 August 2021, the PSC’s advice was conveyed to the Applicant, who was invited to provide any final representations within seven calendar days.  It was specifically explained to the Applicant that, according to the EPD’s records, the words “昭昭日天” had not been used by the Applicant as his signature in other documents in the EPD before his submission of the declarations, hence none of the 1^st, 2^nd or 3^rd Declarations was considered duly signed.  Neither had the Applicant provided any justification which would warrant varying the recommendation of retiring him in the public interest.

51.On 8 August 2021, the Applicant sent an email in response, saying that before his “attendance upon such”, he wished to have a reply to his memo of 15 May 2021, with its preceding memos of 5 and 11 May 2021 “covering the context”.  On 6 August 2021, the SCS replied (in summary) to re-cap that the previous enquiries had actually been the subject of responses.  The Applicant was reminded to comply with the deadline for any final representations, namely by 10 August 2021. There was yet further intervening correspondence, the detail of which need not be repeated for present purposes.

52.The Applicant provided his final representations by way of his letter dated 10 August 2021.  Those representations read as follows [sic]:

Representation to SCS

Without prejudice, the representation was made herein and reference could only be made to materials disclosed so far despite my repeated request, the latest one of 5.8 via mail: “Amongst others, within 24hrs, ie by noon of 6.8, pls do provide me with all the supporting document associated …”, for supporting document associated with various considerations made upon.

2.  Being disclosed in CSB’s latest letter of 3.8 referring EPD’s earlier memo of 3.5 specifically third bullet of Annex B, it was specified the very first time “irrelevant wording (i.e. “天曰昭昭”) in the signature box” (denied / not admitted no matter in specific or not) but

2.1  not specified therein memo of 3.5: “In your case while you submitted three declarations in total on 23 and 24 February 2021, we note that you had put irrelevant wording in the signature box each time”;

2.2  not signature that I put in the signature box each time (“Signature”); as direct and simple illustration, lines containing “irrelevant wording (i.e. “天曰昭昭”)” from the letter of 3.8 hereinabove had been cut out and put against that I put in the signature box each time, this time a claim form of SCT20747/2021 against EPD (enclosed herein), it was so clear that “天曰昭昭” was not that I put in the signature box each time; further you may again note Signature therein the form was “Signature of Claimant”, not “irrelevant wording”;

2.3  I was never asked of anything about that I put in the signature box, it was alleged and imposed as “irrelevant wording” therein EPD’s memo of 3.5 (referring to CSB’s response) then further alleged and specified as “irrelevant wording (i.e. “天曰昭昭”)” which was definitely misquoted thereinabove letter of 3.8 (both allegations of 3.5 & 3.8 denied / not admitted);

3.  Being disclosed in CSB’s latest letter of 3.8 referring to EPD’s, the very first time in specific: “According to EPD, “天曰昭昭” had not been used in your other documents in EPD before your submission of the abovementioned declarations and hence none of these declarations was considered duly signed” (denied / not admitted), but

3.1  I was never asked of anything about that I put in the signature box nor ever informed of such consideration disclosed hereinabove; the earliest as recalled thereinabove letter of 3.8 that “EPD had made it clear earlier in the memo dated 24 February 2021 to you that your submitted declarations should be treated as failure to have duly signed declaration, and reminded you that you should duly sign and return an original declaration by the deadline of 24 February 2021 (it was stated therein as CSB’s advice, my emphasis”) and I requested explication for so-alleged “treated as failure” and/or “failure” via memo of 24.2 subsequently but no reply given thereto; EPD’s subsequent letter of 5.3 merely stated therein; “In view that we have not received your duly signed declaration as at the deadline of 24 February 2021 … as to why you have failed to do so”;

3.2  it was ambiguous what had not been used in other documents in EPD before, and I would presume the use as signature – if this was the case, it was definitely wrong for such consideration and EPD never clarified with me;

3.3  I had different signature from time to time during service over 30 years, and each time I had never been informed of such different ones not been used in other documents in EPD before and hence none of those documents was considered duly signed thereafter; for avoidance of doubt, Signature had been used in other documents in EPD and elsewhere before submission of the abovementioned declarations but those copies had been taken away from my custody on 23.4 by EPD’s illegal action;

3.4  there was no rule specified, particularly in CSBC 2/2021 and/or EPD PR/5-85/1, that using signature and/or alleged “irrelevant wording” not used before (a date stipulated?) would be considered as not duly signed, vice versa none specified using any designated whatsoever used before (a date stipulated?) as duly signed;

3.5  if such consideration stood, the document associated with suitcases of HCAL34/2014 and CACV37/2015 against DEP (Signature was also different from ones used before in the course of proceedings) and SCT20747/2021 should also be considered not duly signed, but EPD and/or DoJ, the legal representative, did not raise any objection / query in the proceedings associated before/after “submission of the abovementioned declarations”; further, one of such declarations submitted on 24 February 2021 was signed, actually countersigned, before and witnessed by EPD colleagues, by the deadline that day at the call of above even dated memo, I was not told by then at scene nor any time thereafter about such not used before in other EPD document but now allegedly considered via letter of 3.8 above (emphasis added); nonetheless, the countersign on 24 February 2021 against that of 23 February could not be alleged to sign with that had not been used ie already used on day before, it is legally and logically wrong to allege otherwise!

3.6  it was further alleged that declaration at HAD “appears to be irrelevant”, this was definitely an unfound allegation because those declared “(genuine &) valid and accepted & admitted signature” as applied across other government departments including HAD exercising declaratory power were the same as those of submitted declarations on 23 and 24 February 2021; further some of those “genuine & valid and accepted & admitted signature” under declaration were also not used (either different or fresh one) in other document before in corresponding departments but none considered as not duly signed!

4.  In response to my mail of 5.8: “Your letter of 3.8 refers.  Before my attendance upon such, would you pls give reply to my memo of 15.5 (enclosed herein for your easy ref, w/preceding memos of 5 & 11.5 covering the context)” (typo of 12.5, my apology), you further alleged, amongst others, via reply therein mail of 6.8:

4.1  “To recap, you mentioned in your said memo that your declarations signed with “天曰昭昭” dated 23 February and 24 February 2021 … requirement for a “duly signed” declaration”, I replied via mail of 6.8: “pls don’t put words into my mouth or written memo in the present case” and reproduced herein my original sentence in full therein the said memo of 15.5: “It was merely bare allegation made therein LOI in the series without supporting facts / circumstances say what “irrelevant wording” written / put in the signature box (denied / not admitted), not mentioned any evidence and/or justification say any required in CSBC 2/2021 stipulated for “duly singed” if other than written / put in signature box (denied / not admitted) which had not been identified ever since associated decision / consideration of “various factors and the situation” but just until 23.4 despite my queries put forward for clarification”; ‘to recap’, by dictionary, means ‘to repeat or look again at the main points of something to make sure that they have been understood’ (Oxford), my statement quoted hereinabove in full had not only been misunderstood, but also mistaken in a way of being jumped into, not coming up at all, conclusion or whatsoever statement as revealed in your another reply therein mail of 9.8;

4.2  “You may wish to note that we already addressed your above point vide Annex B of Environmental Protection Department (“EPD”)’s memo to you dated 3 May 2021”, but I found nothing in Annex B of the said memo such requirement specified for a “duly signed” declaration or, not a “duly signed” one;

4.3  “Regarding your enquiry … under section 12 … (“PS(A)O”) and EPD’s report of 9 April 2021,”, you may wish to find my original sentence in full therein memo of 5.5: “Would you please state the authority making various considerations and/or decisions under different stages of proceedings say non-compliance with CSBC 2/21, invoking inquiry if any on my case, invoking different sections say s13(1)(c) of PS(A)O, and please also provide me with the corresponding IoA, that is Instrument of Authorisation, for the persons involved”; not only authority for other proceedings was unclear, but also till now still no such said report nor any supporting document associated was provided – “Without proper response with supporting document particularly the procedural guideline or the like (exact title missed) on the PS(A)O and the report of 9.4 just revealed therein MUR, it would not only be wrong to proceed with the subject, but would deem to be disclosed as ordered by the Judge therein the precedent case of HCAL 34/14, my application against EPD’s then decision” as stated therein my memo of 5.5, and “With respect but regrettably, not a single supporting document associated with your/EPD’s action so far since maybe CSB’s advice expressed via EPD’s 24.2 memo including but not limited to those I had already specified for you that is IoA, the procedural guideline or the like (exact title missed) on the PS(A)O and the report of 9.4 revealed was provided therein MUR.  As a matter of urgency due to your rigid deadline, please provide, by 1800hrs today for my personal collection at your office (exact pick-up time and location pending your reply), all the document under files of EPD PR/5-85/1, EPD CR WOO /TY/D and ER(13) in CSBCR/DC/5-020-006/97-2 related to situation and factors considered in proceeding with my case for my own checking out, say Authority for various proceedings, saving your unnecessary presentation” as stated therein my memo of 12.5, and “With respect but regrettably again, not a single supporting document associated with your/EPD’s action so far was provided therewith MUR including but not limited to those I had already specified for you, that is IoA, the procedural guideline or the like (exact title missed) on the PS(A)O, the report of 9.4 revealed therein 3.5 LOI, the document under files of EPD PR/5-85/1, EPD CR WOO /TY/D, EF(13) in CSBCR/DC/5-020-006/97-2 related to situation and factors considered in proceeding with my case” as stated therein my memo of 15.5; again, it had been mistaken in the disclosure of supporting document as indicated in your another reply therein mail of 9.8;

4.4  “our letter of intent of 3 May 2021 already set out, among others, the facts and consideration of your case …”, but the facts and consideration set out had been all along drifting ever since 24.2.21 and I wish to draw your particular attention to the drifting allegation of “irrelevant wording” not even being presented therein LOI;

4.5  “Our reply to you dated 3 August 2021 elaborated the factors which had been taken into consideration when proceeding with your case”, but it was evident from such no consideration had been taken upon issues associated and raise since my memo of 24.2.21 including but not limited to the letter of 28.4.21 from HKCTU addressing to SCS, and my series of memo say 8 & 12 Mar, 1, 5, 12 & 15 May 21;

5.  Maybe another test for verifying the signature allegedly not been used in other documents in EPD before submission of the abovementioned declarations as “genuine & valid and accepted & admitted signature” prevailing all along, please find enclosed my signed “Consumption Voucher Scheme Registration Form” with the signature not been used in other documents of the previous cash payout of $6000 about a decade ago.  I am confident that the form would be considered as duly signed and $2000 would be cashed in coming September and you are free to press the contrary, the form not considered as duly signed, according to your own consideration mentioned thereinabove 3.8 letter.

6.  Despite my ex-supervisor advising me “You need to watch yourself.  You need to be careful”, the present action taken against me was of no basis and/or wrong basis, factual and legal, it was very probably a framed case or a case as notoriously illustrated in ancient history: “趙高欲為亂，恐群臣不聽，乃先設驗，持鹿獻於二世，曰：「馬也。」二世笑曰：「丞相誤邪？謂鹿為馬。」問左右，左右或默，或言馬以阿順趙高，或言鹿者。高因陰中諸言鹿者以法。後群臣皆畏高。《史記‧秦始皇本紀》”.

7.  In view of any or all of the above, any action/allegation against me must be dismissed and in anyway the course of termination should not be taken.

8.  It was learnt from the mass media that then Police national security director Frederic Choi Chin Pang was reinstating his office very soon though maybe still subject to CSB’s disciplinary action, I very much hope to have the rejoice of reinstatement at your pardon.

9.  All my rights are hereby expressly reserved.

53.It is probably unnecessary to translate the passage in Chinese in paragraph 6, as the reference to a deer and a horse seems to me to be a red herring. 

54.Indeed, in common with most of his previous memos, much of this was, with respect, ‘gobbledygook’.  Shorn of its excruciating prolixity and verbosity, its density and repetitiveness, and its use of archaic language and ‘barrack room legalese’, the Applicant’s points might fairly be summarised as being simply:

(1)  it was only in CSB’s letter dated 3 August 2021 that the Applicant was told for the first time that irrelevant wording had been inserted by him into the signature box on the Declaration – though that is plainly not true;

(2)  he had used different signatures from time to time during his service over 30 years, as he attempted to show by producing further documents (such as a consumption voucher scheme registration form and a Small Claims Tribunal Form, signed with “昭昭日天”) – though that does not really meet the point;

(3)  to say that his prior declaration at the Home Affairs Department appears to be irrelevant was an unfounded allegation, because none of the relevant government departments had considered his forms as not duly signed – though he cannot get around the chronology;

(4)  if his signature on the Declaration was ambiguous, no one at the EPD had sought to clarify it with him – though he cannot really have failed to understand what was the problem;

(5)  there is no rule that using a signature or any “irrelevant wording” not used before would be considered as not duly signed – though this is contrary to common sense;

(6)  no one present at the time he signed the 3^rd Declaration told him that it was not duly signed – though one might ask why the Applicant would need to be told this is not his signature;

(7)  he was still awaiting responses to previous enquiries and requested documents – though none of the enquiries or responses were genuinely necessary to meet the thrust of the problem.

55.After taking the Applicant’s representations into account, the CSB considered – in my view, with good reason – that he had not put forward any new and valid ground which would warrant varying the recommendation of retiring him in the public interest under section 12 of the PS(A)O.  Accordingly, the Decision was made on 1 September 2021, and notified to the Applicant by the CSB’s letter of 3 September 2021.

D.  Intended Grounds of Review

56.In his Form 86, the Applicant set out his intended grounds of review as follows [sic]:

It was erred, unreasonable and unfair in making Decision that

1.  abuse of power to dictate, under no express requirement in prior and in specific, Applicant’s own signature by which the same was used in another separate declaration, as irrelevant wording of whatsoever not used before and to treat signing such as failure to have duly signed the declaration;

2.  no consideration, in general or specific, with or without justification and supporting document associated was given while inviting various submissions from Applicant and delivering the determination/Decision thereafter on 5.3, 3.5, 3.8 and 3.9, therefore an infringement of Applicant’s right to be heard properly;

3.  leaving relevant factors out of account and/or taking irrelevant ones into account in reaching 9.4 report by Director of Environmental Protection (“PS(Env)/DEP”), 15.7 advice by PSC, and Decision;

4.  unequal treatment upon Applicant as others failed to sign and submit the declaration were given ample opportunities to make remedies at proper guidance such that there was no “failure” case (only “negligence” and “refusal” cases) as promulgated via official document tabled on 19.4 in LEGCO panel meeting therefore invalidating Applicant’s failure found thereby Decision and associated proceedings since 24.2 as actionable case under s12(1) & (2) and/or s13(1c) of PS(A)O;

5.  declarations of 23 & 24.2 submitted by Applicant fire dispatch and in person correspondingly ought to have regarded as duly signed and submitted to DDS(P)/EPD as specified, but not as failure.  Further and in the alternative, (i) Applicant should have been able to address the facts and considerations relied on by the authority; (ii) there should have been no proper basis on which the authority could have determined failure to have duly signed the declaration; and (iii) if given reasonable opportunities at specific directive, Applicant should have been able to sign any signature specified/required beforehand or thereafter particularly at the instant Applicant was required to be present in the office of DDS(P)/EPD & the declaration there before staff concerned;

6.  Decision not made in accordance with s12(1) & (2) of PS(A)O.

57.Insofar as it is possible to penetrate that language, I agree with Mr Liu that it seems that the intended grounds of review are broadly:

(1)  illegality (abuse of power): there was no prior and specific express requirement on the form of signature for the purpose of the declaration;

(2)  procedural unfairness (infringement of the right to be heard): the Applicant was not provided with the documents he requested;

(3)  illegality: failing to take into account relevant factors, and taking into account irrelevant factors;

(4)  unequal treatment: other civil servants were given ample opportunities to remedy their declaration with guidance following “neglect or refusal”, but not “failure”;

(5)  unreasonableness: the declaration submitted by the Applicant ought to have been regarded as duly signed;

(6)  illegality: the Decision was not made in accordance with section 12.

58.They can be considered each in turn, to see if any of them is reasonably arguable with a realistic prospect of success.

E.  No Specific Requirement for Form of Signature

59.Circular 2/2021 expressly requires the Declaration to be duly signed and returned.  The Applicant alleges that there is no specific requirement on how the Declaration should be signed. However, this is not a question of any government policy as to what constitutes the signature of a civil servant for the purposes of the declaration. Rather, this is obviously in part a question of law, but really a question of ordinary common sense and reasonableness.

60.Mr Liu suggests that, from the legal perspective, reference can be made to the cases involving (1) the requirement to take an oath by Legislative Council members elected, and (2) the requirement to sign a declaration by persons nominated as Legislative Council election candidates.  Mr Liu rightly recognises that the requirements do not share the same legal basis as the Requirement in this case, which is why he is not suggesting direct application.  Rather he submits that the cases have some value as being analogous in some respects, in particular that all oaths and declarations should share the same requirement of sincerity and solemnity, and all are substantive requirements rather than mere formal requirements.

61.I do not think reference needs to be made to any particular authority to assess that submission. Obviously, as Circular 2/2021 and its explanatory notes identify, the making of the Declaration under the Requirement is a serious matter, intended to be taken seriously.  Ultimately, it seems to me that the question to be answered is whether the person making the Declaration pursuant to the Requirement can be seen objectively to have made and demonstrated a genuine and open acknowledgement of the acceptance of the responsibilities of and expectations on civil servants, and to have faithfully and truthfully committed to upholding and abiding by the obligations set out in the Declaration.

62.The relevant Bureau or Department seeking the Declaration must logically have the power to decide or determine whether any particular declaration form is duly signed – even if that is subject to potential judicial scrutiny under the principles of public law.

63.From the common sense perspective, the requirement that the Declaration be duly signed identifies that the basic elements of a signature should be present, so as to show a genuine intention to be bound, and the possibility of forming the objective view that the signatory has assented to the contents of the Declaration.  What would or would not amount to being duly signed requires having regard to the context, and applying common sense and reasonable judgment.

64.As Mr Liu submits, if a signatory inserts the words “I disagree” or “I have doubts” into the signature box and claims that to be his signature, common sense and reasonableness would lead to that claim being rejected.  Mr Liu says the position would be so even if the words used were something like “I support the government”.  I agree.  The same would also be true of using someone else’s name – like “Mickey Mouse” or “Donald Trump” – or of using a common phrase or slogan – like “time flies”, “love hurts” or “waste not, want not”.

65.Not even the Applicant suggests he did not really know what was required of him, namely that he had to provide his signature to show his assent to the Declaration.  Indeed, though his case seems to come close to it, he disavowed any suggestion that he could have simply written anything down as his ‘signature’, so long as it was written by him.  It must be obvious that any signature had to be real, true or valid.  What the Applicant seems to suggest is that he did not know how he might – or must – provide his real, true or valid signature.  Most people would think that proposition merely has to be expressed for it to be seen as nonsensical.

66.From the chronology, it can be seen that the Applicant has from the start sought to obfuscate, obscure, and obstruct.  Having demonstrated an original aversion to making the Declaration at all, the Applicant then purported to sign it (perhaps making the previous barrage of memos strictly irrelevant).  But he purported to sign using words or a phrase (not a name), and in a way which had never previously been used as his signature within his working civil service role.  Though he has sought to hide the obvious truth by his redactions of the dates on those other documents, the Applicant did not go so far as to say he actually used that phrase as a ‘signature’ before putting it on the Declaration (until the last gasp submission, mentioned above, which I reject).  He did not, at least not within his duties as a civil servant, in which role he was asked to make the Declaration.

67.Of course, the phrase itself would be well known to some as the expression of a Chinese military general of the Sung Dynasty, Yue Fei, immediately before he was executed.  In English translation, the phrase means something like “my conscience is clear before the sky and the sun”.  It is more a slogan, not a name or a signature.

68.Further, where the only part of the Declaration which required completion – apart from name, rank and number, and the date – was the Applicant’s signature, it is utterly disingenuous of him repeatedly to suggest that he did not know why it might be thought that he had not duly signed the Declaration.  Though the EPD might perhaps have been more specific than referring simply to a failure to duly sign, the Applicant is being deliberately obtuse.  The reference to “duly signed” can only have been a reference to what he put in the signature box.  It defies credibility to suggest the Applicant could not understand what he might have done to lead anyone to think he had not duly signed.

69.That disingenuousness has permeated all of his subsequent communications, and his empty protestations of ignorance as to how he might not have complied with the Requirement, and his badgering requests for further information and documents.  It is also to be seen in his claim – which is against the evidence, including that presented by him – that it was only in August 2021 that he was told the issue was because of his use of “irrelevant wording”.  The Applicant must have known full well the meaning of the words, phrase or slogan which he placed in the signature box, and that it was a significant departure from his usual signature for official documents in the EPD.

70.The Applicant was also informed that the 1^st Declaration was not duly signed, with sufficient time for him to remedy that before the stipulated deadline.  Instead, the Applicant chose simply to repeat his prior action by putting the same words on the 2^nd Declaration and the 3^rd Declaration. Indeed, the very fact that the only change made to the 1^st Declaration was to add words to the signature box identifies that the Applicant knew full well what the problem was with the 1^st Declaration, and what needed to be remedied.  He chose not to remedy it.

71.The Applicant cannot try to change matters retrospectively by his hope to adopt a new signature, and by his declaring before a Commissioner for Oaths the genuineness of his ‘signature’.  For the EPD and the SCS to hold the view that these documents created after the event are not relevant is not an attempt to place themselves above the law, as the Applicant suggested.

72.I reject the applicant’s suggestion that time is not relevant to a signature.  There was a deadline for the Applicant to comply with the Requirement by properly making the Declaration.  As he must fully understand, and for reasons which he must fully understand, he failed to meet that deadline. 

73.In my view, the Applicant was dealt with by his superiors with extraordinary tolerance and patience.  If a civil servant can behave and write in the way in which the Applicant behaved and wrote, and still believe he is entitled to retain his employment, that only emphasises a gulf between employment in the public and private sectors. Perhaps examples like this should put wind in the sails of the recent calls for civil service reform.

74.The first intended ground for review is utterly without merit.

F.  Infringement of Right to be Heard

75.This complaint appears to be based upon the suggestion that there was a refusal to provide the Applicant with supporting documents, or to be told what the real problem was with his ‘signature’.

76.There is absolutely nothing in this complaint.  The Applicant was clearly aware of the signature issue from the outset, and all relevant documents had been provided. 

77.It might even be asked what documents were really relevant other than Circular 2/2021, the explanatory notes, and the Declarations made by the Applicant.  Nevertheless, the EPD and the CSB had in fact responded to the Applicant’s numerous enquiries before the stipulated deadline for meeting the Requirement, and after he was requested to give explanations for his failure to submit his duly signed Declaration.

78.Indeed, the chronology set out above also demonstrates beyond peradventure that the Applicant was given numerous occasions to make representations – that is, to be heard – prior to the making of the Decision.  There was no material irregularity, as the Applicant now claims.  His seeming protestation that he lacked the sufficient information and documents to address the alleged failure to “duly sign” the Declaration is baseless.

79.Also baseless is his apparent technical complaint that the documents attached to the Initial Response were not made evidence by being placed on affirmation, so that there should be a substantive hearing.  Of course, most of those documents were in the voluminous exchange of correspondence to which he was himself a party.

G.  Leaving Out Relevant and Bringing In Irrelevant Factors

80.This intended ground is not explained.  The Applicant fails to identify any factor which is said to have been relevant but left out of the consideration or irrelevant and brought into the consideration.

81.In any event, the question whether the Declaration was duly signed is a question of law and a question of common sense.  Of course, the materials in this case demonstrate that common sense is not one of the arrows in the Applicant’s quiver.

H.  Unequal Treatment

82.The Applicant chose not to return the Declaration duly signed by the stipulated deadline.  That was a failure, or a neglect or a refusal.  There is no differentiation in the SCS’s handling of cases by reference to whether it was a failure or a neglect or refusal.

83.There is no substance to any complaint about unequal treatment.

I.  Declarations Ought to have been Regarded as Duly Signed

84.This suggestion essentially repeats the complaint in the first ground.  It is without merit.

85.Prior to his use of the phrase he put on the Declaration, it had never been used as the applicant’s signature, at least not within his work as a civil servant.  If it is not his signature before he put those words on the Declaration, it is impossible to see how anyone might think the Declaration was duly signed.  It was obviously entirely reasonable for the SCS to come to the conclusion that the Applicant had failed to comply with the Requirement by his not returning a duly signed declaration, without reasonable explanation.

J.  Decision not in accordance with Section 12 of the PS(A)O

86.The Form 86 gives no indication as to what it is said renders the Decision as having been made not in accordance with section 12.

87.In his Reply to the SCS’s Initial Response, the Applicant seems to suggest that the failure to act in accordance with section 12 lay in the absence of the provision of a report called for by the Chief Executive.  This suggestion is obviously misconceived.  The relevant pro forma Form CSB/CD-01-2021 was specifically created because there had been a call for any relevant report, and for the purposes of any relevant bureau or department to follow a proforma pattern for reporting cases involving its officers in connection with the neglect, refusal or failure to comply with the Requirement.  In this case, that form was filled in by the EPD and submitted to the CSB.

88.Nor was there any difference in the basis of the recommendation, as the Applicant now claims.  The recommendation was made because of the view that it was desirable in the public interest for the applicant to be retired, on the ground that the Government had lost confidence in his suitability to continue discharging his duties as a public officer, arising from his failure to meet the Requirement by duly signing and returning the Declaration.

K.  Conclusion

89.The Applicant’s application for leave to apply for judicial review is refused.  None of the intended grounds of review advanced are anything approaching reasonably arguable with reasonable prospects of success.  To the contrary, the application is plainly and utterly unmeritorious.

L.  Costs

90.Despite the Applicant’s request that I might make no order as to costs, I see no reason why in the exercise of my discretion costs should not follow the event, and so be payable by the Applicant.

91.I specifically take into account that it seems to me that the application is so lacking in merit, and that this saga has been such an unnecessary drain on public resources.

92.Those costs will be payable forthwith upon the summary assessment which I shall perform on the papers.

The applicant, acting in person

Mr William Liu, Senior Assistant Law Officer (Civil Law) and Mr Aaron Lam, Assistant Law Officer (Civil Law) (Ag.), of the Department of Justice, for the putative respondent