Ho Shun Miu v. Director of Broadcasting and Others
Read the full judgment text of HCAL 260/2022 on BabelCite. This High Court CFI judgment was delivered on 20 September 2022.
1. The Applicant was appointed as a contract employee of Radio Television Hong Kong (“RTHK”) from 2014 to 2017. Upon the expiry of her three-year contract, she was not offered further employment. This judicial review leave application arises from the decision not to offer her further employment.
Cited by 3 cases · Cites 3 cases
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HCAL 260/2022 [2022] HKCFI 2894 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 260 OF 2022 ________________________ BETWEEN
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________________________ D E C I S I O N ________________________ A. Introduction 1.The Applicant was appointed as a contract employee of Radio Television Hong Kong (“RTHK”) from 2014 to 2017. Upon the expiry of her three-year contract, she was not offered further employment. This judicial review leave application arises from the decision not to offer her further employment. 2.The Applicant has acted in person in filing her Form 86 dated 26 April 2022, and her affirmation in support. 3.The Putative Respondents – the Director of Broadcasting (“DB”), the Chairman of the Public Service Commission (“PSC”) and the Secretary of Civil Service (“SCS”) – are represented by the Department of Justice (“DoJ”). Ms Minnie Wong, Senior Government Counsel and Ms Cesarine Chan, Government Counsel, of the DoJ have submitted an initial response dated 24 June 2022, with case authorities and supporting documents. 4.The Applicant, still acting in person, has also filed a reply dated 13 July 2022, with additional supporting documents and case authorities. 5.Having considered all the materials available to Court, I believe this application can be dealt with on paper, in accordance with my earlier directions. This is my Decision. B. Background Facts 6.Perhaps in a little more detail than is strictly necessary for the relevant analysis of the merits of the application, the background can be set out as follows. 7.The Applicant was employed as a Programme Officer of RTHK on a contractual basis with a term running from 1 September 2014 to 31 August 2017. 8.In the “Memorandum on Conditions of Service for Officers Appointed on New Agreement Terms” attached to the appointment letter, there were numerous provisions to the effect that: (1) there shall be no presumption that there will be further appointment upon the expiry of the current contractual term; (2) further appointment is at the discretion of the Government; and (3) the Government is not obliged to give reasons if no further appointment is offered. 9.Indeed, no further appointment was offered at the expiry of the three-year term. 10.Prior to that, the Applicant received a series of unflattering appraisal reports. During her three-year term, seven appraisal reports were conducted. Five of them were conducted on the standard six-month interval. The remaining two were “special reports” conducted at three-month intervals. The reports are:
11.The performance assessment system in RTHK involves three tiers. The performance of the relevant employee will be assessed by an appraising officer (“AO”) who is the employee’s direct supervisor. The assessment will then be passed up the chain of command to be further evaluated by the countersigning officer (“CO”), and finally the reviewing officer (“RO”). Therefore, among the three assessors, AO is the most junior, followed by the CO, then the RO. 12.For the 1st to the 3rd Full Reports (covering the period from 1 September 2014 to 28 February 2016), the AO of the Applicant was Ms Agnes Wong, the CO was Ms Kanas Hui, and the RO was Ms Amen Ng. 13.The Applicant was posted to a team known as the “Programme Standards and Practices team” (“PS Team”), headed by Ms Wong, who was the direct supervisor of the Applicant. The PS Team was under the “Corporate Communications and Standards Unit” (“CCSU”), one level up the organization structure within the RTHK. Ms Ng was the head of the CCSU and Ms Hui was her deputy. 14.The Applicant seemed to have worked well with Ms Wong, as reflected by the ratings she gave to the Applicant and the email correspondence exhibited by the Applicant. Ms Wong gave the Applicant an overall rating of “very effective” in the 1st Full Report, equivalent to a B on a scale of A to E. That appraisal report was endorsed by both Ms Hui and Ms Ng without much comment. 15.But it seems that Ms Wong and the Applicant soon fell out with Ms Ng and Ms Hui. By email dated 11 July 2015, Ms Wong wrote an email directly addressing the then DB so as – in short – to complain that Ms Ng, the head of CCSU, had mismanaged the PS Team, and she requested the DB to restructure the organization by pulling the PS Team out of CCSU. 16.The discontent seemed to have had simmered since the office of the PS Team was physically removed from Broadcasting House, the main site of RTHK, to the Enquiry Centre in Admiralty in 2014. Ms Wong said Ms Ng would not allow the PS Team to have enough support. Ms Ng turned down even the very reasonable request for Ms Wong and the Applicant each to have a printer of their own when their work was heavily in writing. Ms Ng also requested the PS Team to take up more and more work outside “Programme Standards” – which Ms Wong considered the focus of the PS Team. Ms Ng requested the team to take up work which should be handled by other teams of CCSU, generally related to publicity, public relations and corporate communication, but refused to let staff from other teams of the CCSU to “learn” about Programme Standards works in return. Ms Wong said, in the email, that she spoke for the Applicant as well. 17.As explained by the Applicant, Programme Standards refers to the “Generic Code of Practice on Television Programme Standards” and the “Radio Code of Practice on Programme Standards” issued by the Communications Authority. Under the RTHK Charter, the RTHK is duty bound to observe the broadcasting standards in those two codes of practice. In other words, Programme Standards work is regulatory in nature. It involves ensuring the programmes produced by the RTHK are in compliance with the codes of practices. The Applicant was of the view that Programme Standards work is different and distinct from other work of the CCSU, and she believed putting the PS Team under the CCSU was only a matter of administrative convenience. 18.Ms Wong’s complaint email to the DB did not go well. The complaint was handled according to internal procedures of the RTHK and her re-organization suggestion was not adopted. 19.About two weeks after the complaint email, on 23 July 2015, Ms Wong wrote another email to a Ms Linda Chan, the Senior Executive Officer, to put it on record that Ms Ng had requested her, essentially, to downgrade the Applicant in her upcoming appraisal report. Ms Ng said the Applicant (and Ms Wong herself) had behaved emotionally which had affected their work and judgment and that should be reflected on the report. Ms Wong rejected the request. 20.But the Applicant’s next appraisal report, i.e. the 2nd Full Report covering 1 March 2015 to 31 August 2015 was downgraded. Ms Wong, the AO, rated the Applicant’s overall performance “very effective” again. However, this time, Ms Hui, Ms Ng’s deputy and the CO, downgraded many of the ratings in smaller items and lowered the overall performance to “effective”. Ms Hui explained why she departed from Ms Wong’s assessment in quite some detail. She also gave specific examples to explain why she thought the AO had overrated the Applicant. On one occasion, the Applicant insisted that a complaint raised by a persistent complainant did not fall with the authority of CCSU despite it had been so resolved by the management of the RTHK. On another occasion, the Applicant was instructed (probably by Ms Ng or Ms Hui) to draft a reply to a complaint referred by the Ombudsman and the Applicant requested a written explanation from her supervisor why that task was given to her. There were more examples given. 21.Ms Hui’s unflattering assessment was shared by Ms Ng, the RO. Ms Ng typed up two pages of comments. Ms Ng said the Applicant would usually challenge her supervisors’ advice and defy instructions for duties assigned to her. The Applicant was also found wanting in staff management skills, professional judgment, coping with work pressure and emotional management. 22.Apparently being downgraded in the subsequent appraisal report was a serious matter. Because of this, the Applicant received her first advisory letter, basically telling her that she had to improve. 23.The Applicant also received an overall grade of “effective” in the 3rd Full Report but the comments from Ms Hui and Ms Ng, albeit still not very positive, were not as critical as the last report. 24.However, things took a sharp turn for the worse in the 4th Full Report, covering period from 1 March 2016 to 31 August 2016. Ms Wong, the Applicant’s direct supervisor was posted out of the PS Team on 31 May 2016. The replacing team head was a Ms Mandy Leung. Ms Leung thus became the AO for the 4th Full Report and she gave an overall rating of “moderate” (or a “D”) to the Applicant. Ms Leung commented on the Applicant’s attitude towards and relationship with her co-workers at length. The Applicant was said to be confrontational and oddly defensive. Ms Hui advised her to establish mutual trust with her supervisors. Ms Ng said the Applicant was non-cooperative and defensive. 25.It does appear that the Applicant did not have a trusting relationship with her supervisors. It was not disputed that she on occasions recorded her telephone conversations with her supervisors unbeknownst to the latter. 26.The Applicant received a 2nd advisory letter on 12 September 2016. Her employment with the RTHK was already in peril by that stage, since two special reports were called for to assess her suitability for continued employment. They were the 1st and the 2nd Special Reports. Her last appraisal report was the 6th Full Report. The Applicant’s overall performance continued to be rated “moderate” and the AO, CO and RO gave negative comments at length in these three reports. The Applicant also received a 3rd advisory letter on 11 April 2017. 27.The Applicant made appeals from or complaints about the 2nd Full Report, the 1st Special Report, the 2nd Special Report and the 4th Full Report. All of her appeals/complaints were rejected after the RTHK had conducted some sort of internal investigation. For the 2nd Full Report, interviews had been conducted by the Deputy DB with the Applicant, Ms Hui and Ms Ng. For the 4th Full Report and the 1st Special Report, an interview was conducted by the Deputy DB with the Applicant and the review result was personally endorsed by the DB. For the 2nd Special Report, the management considered the Applicant’s representations made by email. The Applicant was notified about the results of the three rounds of complaints on 31 December 2015, 31 May 2017 and 6 June 2017. 28.The Applicant also made further objections on 15 July 2017 regarding her 4th Full Report, the 1st Special Report and the 2nd Special Report. Those objections were rejected by the RTHK by letter dated 25 August 2017, with reasons given. 29.The Applicant’s three-year contract eventually expired on 31 August 2017. The DB called for an assessment board to discuss the Applicant’s employment on 24 May 2017 and it was concluded that the Applicant did not measure up to the required standards, and no further employment would be offered. The findings are contained in a ‘Board Report’ which was submitted to the PSC for advice. By memo dated 24 August 2017, the PSC endorsed the DB’s recommendation of not offering further appointment. On 28 August 2017, the DB notified the Applicant by letter that she would not be offered further appointment. 30.The Applicant made complaints to the DB, the CSB and the PSC with a view to overturn the decision but to no avail. The CSB referred the complaint to RTHK for a review and the DB upheld his view by letter dated 18 January 2018. 31.On 9 November 2018, the Applicant submitted written representations to the Chief Executive (“CE”) pursuant to Civil Servant Regulations 486 (“CSR 486”) and section 20(1) of the Public Service (Administration) Order (“PSAO”). CSR 486 is an exact replication of section 20(1) which provides:
32.The PSAO was gazetted in 1997 and is referred to in the Public Service Commission Ordinance Cap 93 (“PSCO”). The PSCO is the empowering Ordinance of the PSC, which is a statutory body established for the purpose advising the CE on civil service appointments, promotions and disciplinary matters: see sections 3 and 6 of PSCO. 33.The Applicant’s representations were made by email with attachments of about 400 pages. Her complaints could be summarized as follows. First, her appraisal reports had been under-assessed by Ms Leung ever since she replaced Ms Wong as the Applicant’s direct supervisor. Second, there was a breach of due process and due procedures by the RTHK, the SCS (and possibly the PSC) in handling her complaints/appeals against her appraisal reports and the decision not to offer further appointment. RTHK proceeded to obtain advice from the PSC for the termination of her service on 24 May 2017, when the result of her appeals were still pending. RTHK and the Civil Service Bureau (“CSB”) had been unresponsive to her request for documents. RTHK had “concealed” from her or not provided certain documents to the PSC in obtaining advice. 34.The CE delegated the task to resolve the Applicant’s representations to the SCS. The CSB then embarked on five rounds of correspondence with the Applicant and the RTHK. In the process, the Applicant added more complaints to those originally found in her email dated 9 November 2018. 35.It took the SCS about 3½ years to give a substantive reply to the Applicant. By a letter dated 15 March 2022, the CSB informed the Applicant that all her allegations against the RTHK were not substantiated, and the CSB intended to recommend to the SCS, and the CE’s delegate, to dismiss the representations. The 15 March 2022 letter had annexed to it a 20-page long table setting out each of the Applicant’s 20 allegations, RTHK’s replies and the CSB’s assessments. In the same letter, the Applicant was invited to make further representations in response to the CSB’s assessment. 36.The Applicant did not make further representations. By letter dated 6 April 2022, the CSB wrote that the Applicant was deemed to have no further representations, since she did not submit any by the deadline. By letter dated 24 May 2022, the Applicant was informed of the SCS’s decision to dismiss her representations to the CE pursuant to the PSAO and CSR 486. 37.Before turning to the next section, I should also mention that the Applicant’s Form 86 was filed on 26 April 2022, after the CSB’s letter dated 15 March 2022 making clear the intention to recommend non-renewal, but before the actual decision by letter dated 24 May 2022. However, I do not consider there is any real prematurity issue. The 24 May 2022 letter was but the crystallization of the decision and reasons already contained in the 15 March 2022 letter. The 15 March 2022 letter with its attachments alone take up almost a full bundle. The 24 May 2022 letter is half a page, and only said that the representations had been considered but dismissed. C. Decisions 38.In the Form 86, the Applicant identified the subject of her intended review as three categories of decisions, sorted according to the decision maker:
39.As said, I shall include the SCS’s letter dated 24 May 2022 if necessary. 40.The letters concern overlapping matters. The decisions made can be summarized as follows:
D. Proposed Grounds 41.The Applicant identified four proposed grounds of review in her Form 86. With information further supplemented by her supporting affirmation, I believe her four proposed grounds could be summarized as follows. I would also split one of the grounds into two, making five grounds in total. Different grounds target different decisions the Applicant seeks to impugn. I would slightly rearrange the order of the proposed grounds as presented by the Applicant to put grounds directly addressing the same decision or same types of decision together. 42.Ground 1 concerns the SCS’s Dismissal. The Applicant says that in dismissing her representations to the CE, the SCS relied on paragraph 24 of CSB Circular No.5/2016 which vested the final authority over disputed performance appraisals in the DB without reference to facts and circumstances. This approach was restrictive. There was undue delay in the processing the Applicant’s representations. The Applicant was deprived of a fair hearing. Each factor separately or cumulatively amounted to a breach of her rights under Article 10 of the Hong Kong Bill of Rights (“BOR10”). 43.Ground 2 concerns the PSC Advice. The Applicant says the DB did not disclose to the PSC the change of AO (which was seen by the Applicant to be the cause of her downward path since the 4th Full Report) in seeking its advice regarding the Non-renewal Decision. Thus, the Chairman of PSC failed to take that into account in giving the 24 August 2017 advice. 44.Grounds 3 to 5 concern the Applicant’s appraisal reports and their subsequent reviews. 45.The Applicant found her third ground in CSR 231(3), which provides that when the reporting officer (AO, CO or RO) has less than 6 months to assess the appraised employee, he should consult the previous reporting officer or another suitable officer wherever possible and indicate that he had done so on the report. For the 4th Full Report, Ms Leung only acted as the Applicant’s direct supervisor for the last four months of the six-month period, the first two months being Ms Wong. The Applicant says CSR231(3) thus required Ms Leung to consult Ms Wong and indicate the same on the 4th Full Report, but originally there was no such indication. This was an allegation raised early by the Applicant when she appealed against the 4th Full Report. Ms Leung later confirmed that she had, indeed, consulted Ms Wong as well as Ms Hui regarding the Applicant’s performance albeit she did not put it on record. A sentence to this effect was later inserted to the 4th Full Report. The DB considered that the failure expressly to indicate the change of AO had no bearing on the assessment and the report was fair and justified. 46.Ground 3 is that, by holding that the failure to indicate that the requirement of CSR 231(3) had been complied with, the DB had overridden CSR 231(3) and that was improper. The Applicant says the DB’s authority in settling disputes over performance appraisals is constrained by the CSR. 47.Ground 4 is that there is a real possibility of bias and insufficient impartiality on the part of Ms Leung (the AO), Ms Hui (the CO) and Ms Ng (the RO) in assessing her appraisal reports from the 4th Full Report onwards. That was not remedied by the DB in reviewing her complaints or appeals against those reports. The DB was guilty of the same failings. 48.Ground 5 is that in reviewing her complaints or appeals against her appraisal reports, the DB failed to provide reasons or the reasons provided were Wednesbury unreasonable. E. Appraisal Decisions, Non-renewal Decision and PSC Advice 49.I can deal with the Appraisal Decisions, the PSC Advice, and the Non-renewal Decision together. They are a chain of decisions, with one leading to the next. The poor appraisal reports led to the RTHK’s assessment board’s recommendation of no further employment, which in turn led to the PSC Advice supporting the recommendation and DB’s ultimate decision not to offer further employment on 28 August 2017. 50.Further, decisions along this chain are also distinct from the SCS’s Dismissal of the Applicant’s representations to the CE, in that the last decision was much more recent and had its basis rooted in the PSAO. 51.Grounds 2 to 5 are relevant to these three decisions. 52.Ms Wong from the DoJ opposed the application for leave by her three points of: (a) serious delay, (2) the subjects of the proposed challenge are private law matters not susceptible to judicial review, and (3) none of the intended grounds are reasonably arguable. E.1 Delay 53.When looking at matters of delay, it is settled that the Court will consider (a) the length of the delay, (b) the reasons for the delay, (c) the merits of the case and (d) prejudice caused to the respondents. 54.The most recent of the decisions challenged in this regard was contained in the letter dated 28 August 2017, which was 4½ years before the Form 86. To say the delay is substantial is an understatement. 55.The Applicant argued that it was the SCS’s Dismissal of her representations to the CE in March or May 2022 which should count as setting time running for any challenge. She said the Appraisal Decisions, the PSC Advice and the Non-renewal Decision are in fact a chain of decisions which eventually culminated in the SCS’ Dismissal. So, the SCS’s Dismissal alone is sufficient for her purpose and the other decisions would fall away if the SCS’s Dismissal should be quashed. 56.Of course, the corollary of that would be that the only real “decision”, which might be the subject of intended challenge is the SCS’s Dismissal – and that all other steps up to that point would be intermediate steps not subject to review (or with an alternative potential remedy which was pursued). Therefore, the Applicant’s argument is likely fatal to her challenge to the earlier decisions. 57.In any event, I disagree with the Applicant’s analysis. As I already alluded to above, I consider the SCS’s Dismissal distinct from decisions prior to and eventually culminating in the DB’s ultimate Non-renewal Decision on 28 August 2017. But for the Applicant’s own initiative to make representations to the CE on 9 November 2018, more than one year after the end of her contract with the RTHK, the SCS’s Dismissal would not have come into existence. That decision was triggered and sought by the Applicant pursuant to section 20 of the PSAO. Nor would all the other decisions necessarily fall away if the SCS’s Dismissal was quashed. 58.I also agree with Ms Wong that none of the reasons provided by the Applicant for the delay are valid such as to justify such a long extension of time. The Applicant provided four reasons: (a) the RTHK and PSC refused to disclosed to her the documents the RTHK submitted to the PSC to seek its advice, (b) the applicant was prejudiced by negligent legal advice which pointed her to the wrong route, (c) there was undue delay on the Government’s part in handling her representations made to the CE, and (d) she had attempted other means to resolve the matters. 59.In relation to the collection of documents from the relevant authorities, the Applicant already had, as submitted by Ms Wong, most of the materials she relied upon from the very beginning, including the appraisal reports, review results, and various letters issued by the DB connected to her employment. But the Applicant said the most critical documents was not released to her until 28 December 2018. The critical documents were said to be what RTHK submitted to the PSC in mid-2017 to seek its advice regarding the Applicant’s termination, in particular, the Board Report recommending non-renewal. The suggested significance of those documents is the revelation that the RTHK did not inform the PSC that there was a change of the Applicant’s AO from the 4th Full Report onwards. 60.The non-disclosure regarding the change of AO to the PSC only concerns the PSC Advice and the Non-renewal Decision, but not the Appraisal Decision. In any event, she had even that material by the end of 2018. There is still two years and four months of delay unaccounted for. 61.The alleged negligent advice from her former lawyers also does not assist her. In gist, the Applicant said she was advised that judicial review is not viable and that she should seek disclosure by way of third party pre-action discovery (presumably pertaining to some private law actions). Apparently she is now sued by her former solicitors for unpaid bills in a District Court action, in which she counterclaims for professional negligence. 62.She terminated the retainer with the first law firm on 28 July 2018. She then obtained a preliminary advice from a second law firm in about May 2019, by which time she had already made her representations to the CE. The second law firm advised her that she had to wait until the CE had made a decision before lodging an application. It was not made clear to the Court whether the second law firm’s advice only pertains to an intended judicial review against the SCS’s Dismissal, or also included the much earlier-dated decisions made by the DB and the PSC which she now also seeks to challenge. 63.It is not for this Court to assess whether her former lawyers’ advice was negligent. But blaming the lawyers alone would not fully exonerate her. The decision to take legal action rests with the client at the end of the day. A client dissatisfies with the services provided by her lawyer can terminate the retainer and perhaps switch to another lawyer, and the applicant did both. 64.The long processing time for the SCS’s Dismissal in itself (that is, decoupled from the alleged negligent advice that she had to wait until the SCS’ Dismissal was made to launch her application) is irrelevant in explaining the delay in challenging the Appraisal Decisions, the PSC Advice and the Non-renewal Decision. 65.As to the last reason, that she had attempted other means to resolve the matters, the Applicant complained to the Ombudsman and filed data correction requests (to “correct” the ratings on her appraisals) with the Personal Data Commissioner. This did not prevent her from applying for leave to apply for judicial review if she considered it appropriate. Indeed, the chronology shows that she was alive to airing her complaints in as many venues as possible. 66.Further (see below), I also do not consider that there are merits in her complaints against the Appraisal Decisions, the PSC Advice and the Non-renewal Decision. 67.The delay alone suffices to reject her leave application to challenge the Appraisal Decisions, the PSC Advice and the Non-renewal Decision. E.2 Amenability to judicial review 68.Ms Wong said the subjects of intended review are plainly employment matters. They are decisions made by the Government qua employer. I agree that decisions pertaining to an employee’s performance assessment and whether or not to renew the employment contract are clearly employment matters. 69.Being employment matters in itself would not automatically take the subjects outside the realm of judicial review. It is well settled that amenability admits of no universal test and the Court should examine each decision to see if there is sufficient public element to trigger’s the Court’s judicial review jurisdiction. But the Court often finds decisions made in the employment context to be non-reviewable on the basis that the complaints rest upon a breach of private law duty (often arising from the employment contract) rather than a public law duty. The employer’s assessment on an employee’s work performance and the decision not to renew the employee’s contract are classic examples falling within this category. 70.The applicant’s reference to CSR 231(3) in formulating her Ground 3, the Government’s reliance on her discretion about further appointment as provided in the Applicant’s terms of appointment underscores the fact that the dispute is indeed rooted in the Applicant’s entitlements under her employment contract. The CSR, as Ms Wong submitted, govern the contractual obligations between the Government and civil servants as employer and employees: see Ho Chee Sing James v SJ [2008] 1 HKCLRT 141, at §11. In other words, the CSR formed part of the Applicant’s terms of employment. 71.Other than being employment disputes, the Appraisal Decisions are also not amenable for not being decisions with substantive consequence or of a decisive nature. Judicial review is not for the Court to micro-manage the activities of administrative decision-makers. It should hardly ever be exercised to review decisions that are intermediate or procedural in nature: see Wong Ho Ching v The Appeal Tribunal (Buildings Ordinance) [2020] HKCFI 2783 at §58, citing Financial Secretary v Wong (2003) 6 HKCFAR 476. 72.The Government, as employer, conducts regular reviews on its employees. In the Applicant’s case, an appraisal report was normally done every six months, and the special reports were done with twice that frequency. Scrutinizing an appraisal report every six months or every three months is the type of micro-management that a judicial review court will very unlikely undertake. In any event, the appraisal reports are only intermediate decisions which culminated in the Applicant’s main complaint – the non-renewal of her contract. 73.The Applicant argued that the DB had administered her appointment beyond the scope of an employment contract thus making the matters susceptible to judicial review. As I understand it, the Applicant’s argument flowed as follows. If the DB, by not offering further employment to the Applicant, was purely exercising his discretion qua employer pursuant to the terms of the Applicant’s employment contract, he did not need to seek advice from the PSC. He had to seek advice, because the DB could not exercise his discretion until his recommendation of non-renewal was endorsed by the PSC. Once the DB had formed its recommendation of non-renewal and sought advice from PSC, the matters had ventured beyond the private employment context into the regime of public law. 74.As to why the seeking of advice from the PSC (or for the PSC to give advice) would make the non-renewal a matter of public law, the Applicant seemed to suggest that it is because those actions were based on Article 48(7) of the Basic Law (“BL 48(7)”) and section 3 of the PSAO. BL 48(7) provides that the CE shall have the powers to appoint or remove holders of public office and the PSCO provides that the PSC is to give advice to the CE on such matters. 75.It is hardly surprising that the ultimate power to decide if further employment should be offered to the Applicant was vested in the CE, for s/he is the head of the executive Government. But it does not mean that, by virtue of BL 48(7), every decision concerning appointment or employment to a government position has now been made amenable to judicial review. That would be contrary to the proposition laid down in authority that the mere fact that the employer is a public authority would not inject the necessary public law element. 76.Nor could the Applicant rely on the PSAO, presumably for the purpose of invoking a statutory basis to inject the necessary public law element. Ms Wong did not make submissions on why the DB had to seek the PSC Advice on the recommendation of non-renewal. But it is said on the front page of the Board Report submitted by the DB to the PSC that:
77.So it appears that the seeking advice from the PSC was part of the internal process within the Government when the DB had to decide whether or not to offer further employment to an employee approaching the end of her contractual term, governed by a book of rules called the “Guidebook on Appointments”. How employment decisions should be made within the Government internally is a matter for the Government (ultimately the CE under BL 48(7)) to decide. 78.Cleary a decision is not necessarily a matter of public law if the PSC is involved in the decision making process. The PSC is charged with advising the CE in respect of appointment of public officers: section 6 PSCO. “Public officer” means “any person holding an office of emolument under the Government, whether such office be permanent or temporary”: section 3 of the Interpretation and General Clauses Ordinance Cap 1. In other words, most government employees are public officers. The subject of PSC’s advices – employment of government employees – could well be private law matters. 79.The Applicant also placed some emphasis on that giving false information to the PSC on matters which it is duty bound to advise the CE under the PSCO is a criminal offence under section 9 of the PSCO. The backing of criminal sanctions suggest that appointment of public officers is a serious matter and the PSC’s advice on this regard is important. But still, it does not follow that a decision involving PSC’s advice is susceptible to judicial review. 80.The Appraisal Decisions, the Non-Renewal Decision and the PSC Advice are not reviewable. 81.For the sake of completeness, I shall continue to consider the merits of the proposed grounds for these decisions. E.3 Merits of Grounds 3 to Ground 5 82.Grounds 3 to 5 concern the Applicant’s appraisals and the subsequent reviews of them. 83.As identified above, the Applicant said the DB had breached CSR 231(3) and acted improperly in overriding that requirement (Ground 3); there was a lack of impartiality or real risk of bias on the part of the AO, CO and RO in assessing the 4th Full Report onwards and the DB was guilty of the same in conducting the relevant reviews (ground 4); and the DB did not give valid reasons in conducting the reviews or acted Wednesbury unreasonably (Ground 5). All grounds can be disposed of quickly. 84.The DB or the Government generally, as with other employers in the private sector, has its own system in assessing the performance of its employees. It is not the role of the judicial review courts to judge the appropriateness of such system. 85.One of the main themes running through the Applicant’s complaint is that – to put it bluntly – her supervisors were not qualified to assess her. The Applicant said Ms Leung the AO, Ms Hui the CO and Ms Ng the RO had consistently failed even to distinguish the Programme Standards work from publicity, public relations or corporate communication work generally (or what she termed as “ES” work, shorthand for enquiry service). They did not possess the necessary Programme Standards background and were not qualified accurately to assess the Applicant’s competency in that regard. The Applicant said only Ms Wong, the former team head of the PR team who rated the applicant favourably, was qualified in assessing her. The Applicant also saw the subsequent re-organization of CCSU after her departure – that the PR team is now within a newly created “Programme Standards Control Sub-unit” albeit still under CCSU – as strong evidence showing that she was right. 86.That running theme suffices to explain why appraisal reports are normally not amenable to judicial review. The RTHK saw fit to structure its organization and the flow of authority within its organization, and devise its appraising system such that the persons holding the office of Ms Leung, Ms Hui and Ms Ng would assess the Applicant’s performance. The RTHK also saw fit to place Ms Leung, Ms Hui and Ms Ng in those offices. It is not for the Court to criticize those managerial decisions of RTHK. Nor is judicial review the venue for employees to overturn their appraisal reports on the basis that they think their supervisors are not professionally competent to assess them. 87.Grounds 3 to 5, as formulated by the Applicant, fail to reveal any matters upon which the Court exercising its judicial review jurisdiction should adjudicate. 88.Ground 3 rests upon CSR 231(3). It is a contractual obligation the breach of which would only give rise to a private law claim. The DB, as the employer, is entitled to take the view that the failure to indicate that Ms Leung had consulted Ms Wong had no bearing on the fairness of the assessment. This is plainly no improperness on the part of the DB. This ground is not arguable. 89.Ground 4 concerns the impartiality and bias of those placed by the DB or the DB himself in producing the Appraisal Decisions. I agree with Ms Wong that the Applicant adduced no evidence of partiality or bias. The fact that all the Applicant’s supervisors rated her performance badly from the 4th Full Reports onwards is no evidence of partiality or bias. 90.It may be that the Applicant might think that Ms Leung, Ms Hui and Ms Ng had underrated her performance, tending to suggest bias or partiality. But Ms Hui and Ms Ng would argue that they had fairly assessed the Applicant, and it was the former PR Team head, Ms Wong, who had overrated her. Indeed, this is exactly what Ms Hui and Ms Ng said in the 2nd Full Report in justifying their departure from Ms Wong’s assessment. In Yeung Tin Leung, Vincent v The Chief Executive, HCAL 90/2003 (unreported, 11 March 2005, §25), Cheung J (as the CJ then was) said that appraisal and assessment would inevitably involve a degree of subjective judgment, and the mere fact that different officers disagree with each other can hardly be evidence of actual bias. Ground 4 is not arguable. 91.Ground 5 is also unmeritorious. Wednesbury unreasonableness is a high threshold and assessment of performance necessarily involve a certain degree of subjective judgment. The lack of Programme Standards background on those assessing the Applicant does not make the Appraisal Decisions irrational. This is not a case where the Court would reject an employer’s assessment of its employee’s performance on the basis that the assessment is irrational in the public law sense. E.4 Merits of Ground 2 92.Ground 2 is that the DB had failed to disclose (or “wilfully omitted”, in the Applicant’s words) the change of AO in its submission to the PSC. 93.The Applicant’s rationale behind this ground is that the deterioration of her performance from the 4th Full Appraisal Report onwards was due to the change of AO who had failed to assess the Applicant fairly. The DB intentionally omitted this information to the PSC resulting in its failing to take into account this material information in supporting the Non-Renewal Decision. The PSC Advice and the None-renewal Decision, as the Applicant would say, were thus tainted. 94.The Applicant suggested that the change of AO was a material or at least relevant factor to her poor ratings in the appraisal reports. But this was not the view taken by the DB. The view taken was that the change of AO had no bearing on the fairness of the appraisal reports. Such view could only be criticized on the ground of being irrational, which it plainly is not. The Court would not entertain any argument to the otherwise on the basis of the difference in background between the two AOs. 95.There is also no evidence that the failure to mention the change of AO was incentivized by improper motive or bad faith. Ground 2 is plainly unarguable. F. The SCS’s Dismissal 96.Unlike the other decisions, the challenge to the SCS’s Dismissal is not out of time, regardless of whether the 15 March 2022 letter or the 24 May 2022 letter is taken as the reference. 97.Ms Wong seemed to suggest that this challenge is also out of time because the making of representations to the CE under section 20(1) of the PSAO was an attempt to resurrect a decision which would otherwise be out of time. Ms Wong relied on Martin Tao Ming Lee v SCS (HCAL 82/2010, unreported, 8 August 2011) at §8. But there, the applicant made representations to the CE under the PSAO three times regarding the same matter, resulting in three decisions ranging from February 2007 to July 2010. What Saunders J decided is that the applicant there could not in effect extend time by repeating or renewing the same representations made to the CE under PSAO. This is plainly different from the present case. The SCS’s Dismissal is the first and only decision obtained by the Applicant under the PSAO. Her representations to the CE were not and should not be treated as a request to the DB for a reconsideration of his prior decisions. Insofar as the SCS’s Dismissal is concerned, the leave application was taken out in time. 98.I have considered whether, in terms of reviewability, the SCS’s Dismissal should stand in a different light from the Appraisal Decisions and the Non-renewal Decision. The obvious point in favour of reviewability is that CE’s decisions in response to representations made under section 20(1) of the PSAO could be said to have some kind of statutory underpinning. 99.In the Martin Tao case, the government employee applicant was ordered to “retire in the public interest” pursuant to section 12 of the PSAO. The government employee made representations to the CE under section 20 of the PSAO to challenge that decision. After his representations were dismissed, he sought leave to judicially review the CE’s rejection. The application was considered by the judicial review Court with no argument on amenability issue. 100.Martin Tao is different from the present case. The ground invoked by the Government to retire the employee was “in the public interest”, albeit the rationale further down also turned on his poor work performance. When the Government has invoked “public interest” as a ground to retire a government employee, one may think it is not open for the Government to argue that it was a pure private law decisions made in a capacity comparable to an employer in the private sector. An employer in the private sector need not concern himself with public interest. 101.As said, amenability admits of no universal test. The Court should examine each case to see if there are sufficient public law elements to bring the decision within the realm of judicial review. A decision made by the CE (or his delegate) pursuant to section 20(1) the PSAO could be either a public law decision or a private law decision, depending on the circumstances. Section 20(1) enables every officer to make representations “of a public or private nature”. Government employees could well make representations of a private nature to the CE, and ratings in appraisal reports, without more, would be such examples. 102.The Applicant’s representations to the CE sought to overturn the DB’s Appraisal Decisions, the DB’s Non-Renewal Decision and the PSC Advice. I have explained that the matters covered in those three decisions (or category of decisions) are private law matters. The fact that the same decisions are made the subject of representations under the PSAO could not on its own turn the representations (or the resulting SCS’s Dismissal) into a public law matter. 103.The SCS’s Dismissal is not amenable to judicial review. 104.Nevertheless, I shall also consider the intended Ground 1, which directly addresses the SCS’s Dismissal. There are three strands in this ground: (a) there was undue delay in that the first substantive reply was only given to the applicant on 15 March 2022, more than 3 years after the applicant made her representations: (b) the SCS’s assessment was restricted in that it relied on the DB’s authority over disputed appraisal reports without reference to facts and circumstances; and (c) there was a breach of the Applicant’s BOR10 rights. 105.I will take them in reverse order. BOR10 provides that (emphasis added):
106.To engage BOR10, the Applicant has to show that the CE’s resolution of her representations could be said to be a “determination of any criminal charge against [her], or of [her] rights and obligations in a suit at law”. Clearly the “criminal charge” limb is irrelevant here, and the Applicant did not say what “rights and obligations in a suit at law” were involved in her representations either. 107.To bring the matters within the purview of BOR10, it is predominantly the character of the right at issue that is determinative. It is settled law that the expression “rights and obligations in a suit at law” bears the same meaning as “civil rights and obligations” under Article 6 of the European Convention on Human Rights. The meaning of “rights and obligations in a suit at law” cannot be exhaustively defined. But examples would include the right to property, an expropriation or confiscation by the state, a planning decision with respect to granting a permit to build, or permission to live in one’s own home. 108.I cannot see how the SCS’s Dismissal had deprived her of any civil rights when she had no legal rights under her terms of employment to be employed beyond the contractual term. Any attempt to frame ratings in appraisal reports as a civil right is even more far-fetched. 109.I also agree with Ms Wong that the Applicant failed to point out what aspect of fair hearing was lacking in the process resulting in the SCS’s Dismissal. In her written reply, the Applicant argued that the BOR10 complaint procedures should require the setting up of an independent Assessment Panel with members holding expertise for the work of Programme Standards nature for the purpose of reviewing her performance, and that the SCS should only reach a decision after considering the advice of that panel. That argument harks back to her views that none of her supervisors from the 4th Full Report onwards were qualified to assess her performance. I do not believe BOR10 would require that. 110.Turning to undue delay in processing her representations. I tend to agree that the processing time of the SCS was unduly and inexplicably long, when the process only involved five rounds of exchange of written correspondence. But in all the circumstances, this on its own is insufficient to make the SCS’s Dismissal a public law compliant. 111.I also find no public law wrong for the SCS to rely on the DB’s final authority on the Applicant’s appraisal reports, when the Government’s own internal rules have provided that the Heads of Departments/Grade are normally the ultimate authority to determine such complaints. I do not see any factor which should have taken the applicant out of the normal flows within the Government regarding ratings of appraisal reports. Ground 1 is not arguable. G. Conclusion 112.The Applicant’s application for leave to apply for judicial review is dismissed. 113.The Putative Respondents have sought a costs order in their favour. Though this matter is an ex parte application for leave, I gave directions for the involvement of the Putative Respondents, and I have been properly assisted by their initial response/submissions made. Further, I have decided that the present application is unmeritorious, but it will have required the Putative Respondents to have incurred considerable time and costs in responding to it. In the circumstances, and in the exercise of my discretion, I make an order that the Putative Respondents’ costs should be payable by the Applicant, to be summarily assessed on paper (with the Putative Respondents to provide a Statement of Costs within 7 days, and the Applicant to provide any objections within 7 days thereafter). In the first instance, the costs order will be made on a nisi basis, and will become absolute if no variation application is made within 14 days. Any variation application will also be dealt with on paper submissions.
The applicant, acting in person Ms Minnie Wong, Senior Government Counsel and Ms Cesarine Chan, Government Counsel, of the Department of Justice, for the 1st to 3rd putative respondents |
Cases cited in this judgment