Tam Yuk Fun Toffee v. Secretary for The Civil Service
Read the full judgment text of HCAL 1804/2023 on BabelCite. This High Court CFI judgment was delivered on 26 April 2024.
1. There is perhaps a world of difference between (1) a quiet chat with a handful of friends, conducted at home or in hushed tones in a quiet corner of a bar, and (2) numerous Facebook posts posted over the space of several weeks and visible to hundreds of “friends” on a private page but otherwise with no suggestion of confidentiality. This case is concerned with the latter situation.
Cited by 4 cases · Cites 5 cases
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HCAL 1804/2023 [2024] HKCFI 1020 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1804 OF 2023 ________________________
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___________________ J U D G M E N T ___________________ A. Introduction 1.There is perhaps a world of difference between (1) a quiet chat with a handful of friends, conducted at home or in hushed tones in a quiet corner of a bar, and (2) numerous Facebook posts posted over the space of several weeks and visible to hundreds of “friends” on a private page but otherwise with no suggestion of confidentiality. This case is concerned with the latter situation. 2.The Applicant joined the civil service and served as a schoolteacher for 27 years. By a decision (“Dismissal Decision”) contained in a letter dated 10 July 2023, the Secretary for the Civil Service (“Secretary”) directed that the Applicant be punished by dismissal under section 10 of the Public Service (Administration) Order (“PS(A)O”). 3.The Dismissal Decision flowed from various posts (“Facebook Posts”) made by the Applicant on her Facebook account, where each of the Facebook Posts were able to be seen by “friends” only (as opposed to being “public”). The acts of posting the Facebook Posts were alleged to be misconduct, and were considered by an Inquiry Committee which found misconduct proved. Up to that time, the Applicant had an unblemished record of conduct. After several rounds of representations, the Secretary made the Dismissal Decision, which was the harshest possible punishment in that, upon her dismissal with effect from 11 July 2023, all claims to the Applicant’s retirement benefits or other benefits and advantages would be forfeited in full. 4.By these proceedings, commenced by Form 86 dated 9 October 2023, the Applicant applies for judicial review of the Dismissal Decision, and seeks an order that the Dismissal Decision be quashed. 5.On behalf of the Applicant, it has been suggested that this judicial review seeks to defend the right of a schoolteacher to express her personal views on her private Facebook account outside the education setting. 6.In summary, the Applicant’s grounds of review – which are to an extent intertwined – are that:
7.I granted leave on the papers, and gave directions to bring the matter to a substantive hearing on 11 April 2024. 8.At that hearing, the case was extremely well argued on both sides. The Applicant was represented by Mr Anson Wong Yu Yat of Counsel, and the Secretary was represented by Mr Anthony Chan SC, leading Mr Alvin Hor, Acting Senior Government Counsel. At the end of the hearing, I reserved my decision to be handed down later. 9.This is my Judgment. B. The Facebook Posts 10.The Applicant joined the civil service as Certificated Mistress on 1 September 1995. Before the Dismissal Decision, she had 27 years of service with the Government. Immediately prior to being re-tasked as a result of the events which led later to her interdiction and dismissal, the Applicant served as a teacher in the Jockey Club Government Secondary School (“School”) under the Education Bureau (“EDB”) from 1 September 2015 to 8 September 2019. 11.From mid-June 2019 to 5 September 2019, the Applicant posted the material Facebook Posts on her social media account. 12.The timing of the Facebook Posts was during a period of almost unprecedented civil unrest in Hong Kong. It was also predominantly during school summer vacation time. It was exam period in June, and there were no classes until early September. Therefore, as she has sought to point out, the Applicant did not really have much chance to be in contact with students during the material period. She was moved to perform non-teaching duties as from 9 September 2019. 13.Each of the 8 Facebook Posts subsequently referred to in the Statement of Alleged Misconduct featured an icon identifying that each Post was for “friends only” (and so not open to the wider public). Therefore, according to the Applicant, the Facebook Posts were visible to only around 380 “friends” – at one point described as “close personal friends”. 14.In the way they were described in the Statement of Alleged Misconduct for the Inquiry Committee, the 8 Facebook Posts were set out as follows (with English translation added):
15.It should be noted that the above descriptions of the Facebook Posts do not include the numerous emojis used by the Applicant (some of which suggest the intention to curse, others perhaps sarcasm and ridicule), nor the logos and photos which obviously add to the context and meaning. On any view, many of the expressions used were foul and insulting. The Secretary says that the content included obscene, hatred, cursing, biased, provocative, insulting and defamatory elements. 16.There were two further Facebook posts which were considered by the School, before the School decided to refer the Applicant’s conduct to the EDB for investigation. Whilst those two posts were not identified in the Statement of Alleged Misconduct, the Inquiry Committee had regard to them and considered them to be relevant to the Inquiry Hearing and to its findings (see below). 17.The Facebook Posts made by the Applicant entered the public domain starting from 5 September 2019. 18.Between 5 and 27 September 2019, 110 complaints against the Applicant were lodged with the EDB, the Civil Service Bureau (“CSB”) and 1823 (a government hotline receiving complaints on government services among others). The Applicant was alleged to have posted highly improper messages on her social media (i.e. her Facebook page), some of which were also covered in media reports. Further, the School received 109 emails and 138 telephone calls concerning complaints against the Applicant from members of the public between 5 September 2019 and 2 October 2019. C. Further Administrative Context 19.At the material time, there were a number of guidelines, codes and/or circulars providing guidance on the conduct of a teacher, as applicable to the Applicant. They included:
20.The material paragraphs of the Code are as follows:
21.The material parts of EDBIC 1/2010 are as follows:
22.The material parts of EDBIC 4/2016 are as follows:
23.Further, as a civil servant, the Applicant was subject to the relevant provisions of the Civil Service Code (the then applicable version having been promulgated in 2009). Those provisions included:
24.In the evidence filed for the Secretary, it has also been pointed out that the EDB and the CSB issued press releases and/or letters in view of the social incidents occurring in and after June 2019. 25.On 12 June 2019, the EDB issued a press release in response to the class boycott and teachers’ strike initiated by an educational body. The EDB reiterated that school should not be used for expressing political aspirations; thanked school heads and teachers for commitment to work, calling on them to continue to protect their students and to serve them with professionalism; and expressed respect for the right of members of the public including teachers and students to express their views on social issues in a peaceful and lawful manner. 26.On 13 June 2019, the then Secretary for Education issued a letter to all school supervisors or principals. The letter included the expression of concern about appeals on social media calling on the public to commit acts disrupting social order, as they might inflame sentiments and incite panic; stated that schools should be places for students to learn, not for expressing political demands; stated that teachers should under all circumstances perform their duties with continued commitment and act in compliance with professional conduct; required schools, as employers, to be responsible for managing their staff and monitoring their performance; and, recognising respect for different views, encouraged teachers to guide students to think from multiple perspectives and express their views in a peaceful and lawful manner. 27.On 1 August 2019, the then Secretary issued an open letter to all civil servants titled ‘Cherishing the Core Values of the Civil Service’. The letter instructed civil servants that:
28.Also relevant is the fact that on 13 June 2019 the School arranged a meeting during which all teachers, teaching assistants and the social worker of the School were reminded to remain politically neutral and not to impose their own personal views or take on others. At that meeting a ‘Reminder to Teachers’ of the same date was distributed to all attendees. In addition to the exhortation for colleagues to stay committed with professionalism, the document included the following (in English translation):
29.These are all matters to which regard was had during the Inquiry Hearing (see below). D. The Inquiry Committee and Report 30.On 5 September 2019, following complaints received by the School, the Applicant was interviewed by the Principal and Vice Principal of the School. Subsequently, at the School’s request, the Applicant submitted statements on 25 September 2019 and 10 October 2019 respectively. In those statements, amongst other things, the Applicant stated:
31.Following internal investigation, the School submitted an investigation report to the EDB for its consideration on 2 October 2019. 32.On 30 November 2020 – i.e. more than a year later and so, it might be thought, with little sense of urgency – the EDB sent a letter to the Applicant inviting her to state any grounds or give any information as to why an inquiry into her alleged misconduct under the PS(A)O should not be held. On 17 February 2021, the Applicant’s solicitors – who have remained her solicitors throughout, including for the purpose of these proceedings – submitted explanations for the Applicant, denying breach of the relevant codes and circulars, and denying that her acts constituted misconduct or were acts that would bring the Government service into disrepute. It was emphasised that the Applicant’s Facebook page (with around 380 friends, with no students or parents, and put on private setting) was part of her personal or social life. 33.The EDB did not consider there to be sufficient grounds for not conducting an inquiry, and on 27 August 2021 informed the Applicant that the inquiry would be held. The Applicant was interdicted from duty the following day. 34.Whilst there is no judicial review challenge to the Inquiry Committee’s proceedings, Ground 1 is directed at the Secretary’s acceptance of the Inquiry Committee’s finding that the Applicant was guilty of misconduct. Hence, whilst there is no suggestion of any procedural impropriety, it is inherent in Ground 1 that the Inquiry Committee reached the incorrect, or perhaps impermissible, conclusion. It is, therefore, appropriate to set out to some extent the matters as were dealt with before the Inquiry Committee. 35.As indicated above, the Inquiry Hearing was held under section 10 of the PS(A)O, the relevant provision concerning misconduct warranting dismissal or compulsory retirement. The Inquiry Hearing was also conducted in accordance with the procedures provided for in the Public Service (Disciplinary) Regulation (“PSDR”). 36.The Statement of Alleged Misconduct set out the particulars of the charge in the following terms:
37.The attached details of the allegedly highly improper messages have already been set out above. I will refer to the Facebook Post individually as “Post 1”, “Post 2”, etc. 38.The Inquiry Committee comprised two senior civil servants. On 8 September 2021, a briefing was arranged for the Applicant to inform her of the hearing procedures, her rights during the inquiry and the administrative arrangements of the hearing. Copies of all documentary evidence, a list of witnesses invited to give evidence at the hearing, relevant regulations and procedures for the disciplinary proceedings and a copy of the Guide (as defined below) were passed to the Applicant, who was invited to indicate within a specified deadline her intention to plead guilty or not guilty at the Inquiry Hearing. 39.On 15 September 2021, the Applicant submitted via her solicitors her intention to plead not guilty to the alleged misconduct. Her application to be assisted by legal representatives was approved on 8 October 2021. Indeed, she was represented at the Inquiry Hearing by Mr Wong, who has represented her in these proceedings. 40.The Inquiry Hearing was conducted on 4 and 6 January 2022. The language used was Cantonese (with English occasionally). The Inquiry Hearing led to the Inquiry Committee’s Report dated 28 October 2022 (“Report”). What occurred at the Inquiry Hearing, including the presentation of evidence and argument, and the reasoning of the Inquiry Committee in reaching its conclusions, are all apparent from the Report. 41.At the commencement of the hearing, the Applicant and all witnesses were briefed on how the hearing would be conducted. The Inquiry Committee informed the Applicant that throughout the process she might elect to remain silent, but if she elected to remain silent, the Assisting Officer presenting the case of alleged misconduct was entitled to comment upon the silence and the Inquiry Committee was entitled to interpret that silence as the Inquiry Committee thought appropriate. 42.The Applicant pleaded not guilty to the charge. The Assisting Officer called five witnesses to give oral evidence and presented documentary evidence in addition. The witnesses were the Principal, the Vice-Principal, and the Senior Executive Officer, all of the School, and a Senior School Development Officer and a School Development Officer, both of the regional office of the EDB. 43.The Assisting Officer made his opening address, including why the Facebook Posts were considered as having breached the relevant circulars and code of conduct of the EDB. Each of the five witnesses were then presented, and they gave examination-in-chief, and were subjected to cross-examination by Mr Wong on behalf of the Applicant, with some re-examination from the Assisting Officer. 44.It may be noted that the Applicant’s case was advanced through cross-examination including on the basis that the Applicant did not admit that the Facebook Posts had been posted by her on her Facebook account (apparently because she had deleted her account and could not remember nor confirm whether the Facebook Posts were indeed hers). 45.The Applicant elected not to give evidence and did not call any witnesses. 46.The Assisting Officer then made closing submissions, including as to the meaning of misconduct, and that it need not have a direct relation with teaching duties. He addressed each of the Facebook Posts and their meaning, broadly as follows:
47.The Assisting Officer pointed out that as the Applicant had chosen not to give evidence, there was no evidence about her subjective state of mind or whether she had different explanations when posting the Facebook Posts. Therefore, the Inquiry Committee was invited to interpret the Facebook Post objectively from the perspective of an ordinary Hong Kong citizen about the situation in June to September 2019 and to consider whether the Applicant was exercising her freedom of expression, or whether such exercise would even be tolerated in the liberal school of thought on freedom of expression. 48.The Assisting Officer also submitted that the Applicant should have been cautious in her use of the Facebook account, where each of the Facebook Post was a voluntary posting accessible to 300 to 400 people who could re-post or widely circulate the messages. To say that the Facebook Posts were re-posted without the Applicant’s consent was not a reason for not taking disciplinary action. To say that the Applicant was a victim of doxxing was irrelevant. 49.Mr Wong’s submissions on behalf of the Applicant included that:
50.The Legal Adviser to the Inquiry Committee then offered legal advice regarding applicable principles, as was recorded in summary in the Report. 51.The Report then identifies the findings of the Inquiry Committee. It noted that the allegation against the Applicant was serious, and the more serious the allegation, the more cogent the evidence required should be to overcome the unlikelihood of what is alleged and thus to prove it. This was the standard of proof applied. Doing so, the Inquiry Committee found that the Facebook account belonged to the Applicant, and she used it to share the Facebook Posts with friends. Further, it was highly likely that the Facebook Posts were posted by the Applicant within the period specified in the charge. 52.As to the interpretation of the Facebook Posts:
53.The Inquiry Committee found that the Code, EDBIC 1/2010 and EDBIC 4/2016 were not only applicable to misconduct in the execution of teaching duties within the school setting. Rather, whether at school or in their private life, teachers are required to uphold the professional conduct of education. The Applicant’s conduct and behaviour did not live up to those requirements and expectations. 54.As to the 13 June 2019 ‘Reminder to Teachers’, the Inquiry Committee found that the version used in the staff meeting was the revised shorter version which advised teachers to be politically neutral not only in their communications with students, but also on social media platforms. Part of the point was to avoid opinions expressed on social media platforms from being exploited. The Applicant did not follow the relevant instructions. 55.As to the argument that the Applicant neither intended nor caused the dissemination of the Facebook Posts, and her being a victim of doxxing, the Inquiry Committee found that disseminating eight highly improper messages to some 380 Facebook users, inciting hatred towards the police force among a community of some 380 people in such language unbefitting of a teacher at a time of social unrest would subject her to the same disciplinary proceedings if this came to the knowledge of the disciplinary authority. In addition to the improper Post 2, which requested wider dissemination, there were two other posts (albeit not part of the Facebook Posts the subject of the charge) where the intention to disseminate is obvious. How the misconduct came to light is irrelevant in the consideration of whether the charges substantiated. 56.The Inquiry Committee specifically noted that it is common knowledge and practice that Facebook Post can be and are often captured and re-posted and again re-posted. It found that in the present case, the evidence showed that the Facebook Posts were known to the public and reported in the press, which students might read. The posting of the Facebook Posts was unbefitting of a teacher and brought the Government service into disrepute. 57.The Inquiry Committee also addressed the legal context by reference to various case authorities cited to it. As to the submission that misbehaviour must attain a certain level of gravity before it can qualify as professional misconduct, it was found that the Applicant’s posting of the highly improper messages with indecent logo, insulting, cursing and foul language on a social media account on Facebook during the period specified in the charge when there were social unrest and turbulence, disregarding the school’s briefing on 13 June 2019 to teachers to be politically neutral, and giving rise to complaints from the public, was a serious and blatant breach of the Code. The acts of misconduct could not be trivial or inconsequential and therefore were a kind of professional misconduct. 58.Further, the Inquiry Committee held this was a case far removed from a case of a private citizen expressing views within the limits of the law, including in particular on controversial matters of public interest. The Facebook Posts were not the kind of “views” envisaged by the court in the relevant cases. 59.The Inquiry Committee’s conclusion paragraphs read as follows:
60.As already stated, the Report was dated 28 October 2022. E. The Further Representations 61.By letter dated 31 October 2022, the Applicant was sent a copy of the Report. She was invited to submit representations as to whether the disciplinary authority should accept the findings of the Inquiry Committee and also representations in mitigation of punishment, for inclusion in the invitation from the Secretariat on Civil Service Discipline (“SCSD”) to the disciplinary authority to consider accepting those findings. 62.Under cover of her solicitors’ letter dated 28 November 2022, the Applicant provided her representations in the form of a document drafted and signed by Mr Wong. It was submitted that the disciplinary authority should not accept the finding of the Inquiry Committee that the Applicant was guilty of misconduct, and that the Inquiry Committee failed to deal adequately with the written and oral submissions made on her behalf and/or to give adequate reasons to support the finding of guilt. As to mitigation, the Applicant made seven points, being: (1) she had a clear disciplinary record; (2) the Facebook Posts were made outside the education setting, with no evidence that they affected the way the Applicant fulfilled her teaching role or the execution of her professional duties; (3) she was a victim of doxxing amid the social unrest at the time, when the Facebook Posts were only disseminated to the public by unknown persons without her consent: (4) she submitted a personal letter emphasising how she had cared for students, including privately and discreetly helping them materially or financially; (5) she submitted eight mitigation letters demonstrating her positive character and contributions; (6) she continued to suffer from depression as a result of the case, evidenced by a Psychiatric Report; and (7) the appropriate punishment should take into account the right to freedom of expression and the right to privacy, and any punishment imposed should not be so heavy as to constitute a disproportionate interference with those fundamental rights. 63.By memorandum dated 6 January 2023, the EDB recommended to the SCSD that the Applicant should be punished by dismissal to reflect the gravity of the case and the management’s serious view on her misconduct. The views expressed included that: (1) the misconduct was very serious in that the Facebook Messages carried abusive, obscene and ruggedly content and sought to spread hatred towards the police or strong resentment against the Government; (2) the language used was most unbefitting for a teacher; (3) the Applicant had demonstrated a lack of professionalism for a person vested with the responsibility of nurturing students with the concepts of peace and rationality as required in the Code; (4) the language used, directed as it was, was particularly unacceptable at a time when the Government was making strenuous effort to restore peace and order; (5) the Facebook Post were not isolated or unpremeditated or purely out of impulse, and reflected a poor sense of judgment in the use of Facebook, and the Applicant should be well aware of the risk of her posts being easily disseminated to persons outside her group of “friends”; (6) the Applicant was evasive in the departmental investigation and Inquiry Hearing, reflecting badly on her honesty and integrity; (7) the Applicant was not remorseful, and had pleaded not guilty to the charge; (8) the Inquiry Hearing proceeded in a way which allowed evidence and cross-examination on both sides, and the Inquiry Committee’s findings are supported by evidence; (9) the arguments as to the right to freedom of expression and right to privacy had been taken into account by the Inquiry Committee; and (10) dismissal would be appropriate as being at the commensurate level of punishment. 64.On 13 January 2023, the SCSD issued a memorandum to the Public Service Commission (“PSC”) seeking its advice. On 20 March 2023, the PSC advised that the recommended punishment for misconduct being dismissal was appropriate. 65.By letter dated 22 March 2023, the SCSD informed the Applicant of the proposed punishment of dismissal, and invited further and final representations on mitigation. It included an extract of the impending submission to the Secretary, setting out the considerations of punishment and the advice of the PSC. The documents included reference to the EDB recommendation and the SCSD’s own views. 66.By letter dated 14 April 2023, the Applicant’s solicitors submitted further representations. It was stated that the Applicant fully adopted the written and oral submissions presented to the Inquiry Committee as well as the prior representations dated 28 November 2022. The further points of mitigation also advanced were: (1) the Applicant had provided generous financial support to those who are in need, had no savings and relied heavily on the income and benefits as a civil servant. If dismissed with all claims to retirement benefits forfeited, it would be extremely difficult for her to live her life as she may not be able to secure another job given her age, deteriorating health, and limited education level; (2), the clear disciplinary record and long-term contribution to the civil service should be considered favourably, and it was now more than three years since the Facebook Post had been disseminated to the public by unknown persons without her consent, during which period the Applicant had abided by all instructions given and arrangements directed by the authorities as part of the disciplinary action; (3) the Psychiatric Report previously provided evidenced that the Applicant continued to suffer from depression as a result of the present case, which points to the exercise of leniency in imposing punishment; (4) the precedent cases relied on by the EDB were distinguishable, in particular Case 2; and (5) in December 2022, the EDB issued the Guidelines on Teachers’ Professional Conduct (“Guidelines”) which pointed to the fact that any punishment imposed should not be so heavy as dismissal with all retirement benefits forfeited. 67.The letter specifically quoted from the Guidelines giving an example of punishment for improper words and deeds on social media platforms which bore resemblance to the Applicant’s case: see Case 6 in Appendix 5 to the Guidelines. That Case 6 – headed ‘Improper words and deeds on social media platforms’ – stated:
68.The letter also noted that the Guidelines at Appendix 4 stated that for “very serious cases” EDB will issue reprimand letters, and it is only for “extremely serious cases” that the EDB will cancel the teacher’s registration. 69.By further letter dated 18 May 2023, the Applicant’s solicitors enclosed an updated Psychiatric Report dated 5 May 2023. The letter emphasised that the latest Psychiatric Report noted the Applicant to be “emotional and depressed, with negative thoughts and vague suicidal ideas”, and that she “regretted for the problems she made, wasting a lot of public resource and troubling everybody involved in the whole event”. A more lenient punishment was invited. 70.On 12 June 2023, the SCSD informed the Applicant that the punishment of dismissal would be recommended to the Secretary, and a revised extract of the SCSD’s impending submission to the Secretary (incorporating the Applicant’s further representations, the Psychiatric Report, and the EDB’s review and recommendation) was provided. The Applicant was invited to make any further and final representations (i.e. the last word) in mitigation of punishment. In the revised extract, it included that the EDB considered that it was not appropriate to make simple and direct comparisons of different cases, nor to take them as precedents, as the follow-up action taken by EDB and the penalties imposed on teachers involved might vary given the uniqueness of each case. Further, the EDB noted that the teacher registration mechanism under the Education Ordinance Cap 279 should not be confused with the civil service disciplinary mechanisms, and the two mechanisms could not be directly compared. 71.By letter dated 26 June 2023, the Applicant’s solicitors submitted her final representations, inviting a more lenient punishment. Amongst the further points made in mitigation were that: (1) the fact that the Applicant was herself a victim of doxxing was part of the crucial context, such that the number of complaints should not be given any great weight in considering her culpability – the evidence even confirms duplicated complaints made by the same persons, and there are no statistics available on whether the contents of the complaints were substantial or repetitive, whether they were from persons actually aggrieved or opposed to the social media posts; (2) the wider coverage by press reports or other dissemination was done against the Applicant’s will, and a matter over which she had no control, and which in fact traumatised her; (3) against the suggestion that she was evasive and not remorseful, the Applicant had in fact been very cooperative with all the authorities throughout the investigation and subsequent disciplinary proceedings; (4) the fact that the Applicant took the School’s recommendation and deleted her Facebook account as an immediate response, thereby cutting off her entire social media presence, demonstrated her responsiveness and eagerness to address the allegations; (5) the Applicant’s mental health had deteriorated upon knowing that the dismissal decision against her was being maintained; (6) the Applicant was 54, and would reach normal retirement age as a civil servant in around just four years, such that in view of all the mitigating factors submitted the punishment of compulsory retirement would be a more appropriate punishment than dismissal; (7) the Applicant had submitted a further personal letter dated 19 June 2023. 72.In her personal letter, the Applicant sought amongst other things to draw a distinction between the main precedent case relied upon on by the EDB and her own position, which she said much more closely resembled Case 6 in the Guidelines. She also expressed regret, and sought sympathy, in consideration of her physical and mental state and the impact on her health caused by the incident. She also made reference to a prior case involving a senior civil servant (Deputy Commissioner of the Inland Revenue Department), who had been convicted of an offence of dishonesty, and been sentenced to 9 months in jail suspended for two years, but she was ordered to retire yet was paid her pension. As she pointed out, the Applicant was on a much lower position, and her case did not involve any financial interests or criminal imprisonment. F. The Dismissal Decision 73.By an internal memorandum ‘L/M 1’ dated 3 July 2023, the Senior Principal Executive Officer (Disciplinary Secretariat) of the CSB passed consideration on determination of punishment for the Applicant up the chain of command. In light of the criticisms raised by Ground 4, it is appropriate to set out the content of that memorandum in full, as follows:
74.Hence, the enclosures to L/M 1 which were submitted to the Secretary for consideration of the Applicant’s punishment included: (1) the Charge at Annex A of the Report; (2) the Report; (3) the Applicant’s representations dated 28 November 2022; (4) the PSC’s advice on punishment dated 20 March 2023; (5) a summary of precedent cases; (6) the Applicant’s representations dated 14 April 2023; (7) the Psychiatric Report dated 5 May 2023; (8) the Applicant’s ‘last word’ representations dated 26 June 2023. 75.Going up the chain, the D(3) noted “Supported” and signed on 3 July 2023; the PSCS merely signed (without any comment) on 4 July 2023; and the Secretary noted “I approve punishing Ms Tam by dismissal” and signed on 6 July 2023. 76.By letter dated 10 July 2023, signed by the Permanent Secretary for the Civil Service, the Applicant was notified of the Dismissal Decision, in the following material terms (underline and bold in original):
77.Other than the Annex relating to the charge, there were no other attachments to the letter. 78.Subsequent to receiving the Dismissal Decision, the Applicant made data access requests to the CSB and the EDB, and in response various documents were disclosed to her, including the internal memoranda between the EDB and the SCSD, and the PSC and the SCSD. G. Ground 1: Whether “misconduct” 79.I will consider Ground 1 first, notwithstanding that in his oral submissions Mr Wong focused first and primarily on Ground 2. Nevertheless, I have not lost sight of the fact that the various Grounds are to an extent intertwined, so that it is necessary not to view any single Ground in a vacuum, but it may appropriately be viewed in the context of the consideration of other Grounds. For example, Mr Wong has submitted that the fundamental rights involved in Ground 2 may affect the Court’s standard of scrutiny on the other grounds, and the lack of reasons asserted in Ground 4 may affect the Court’s assessment of proportionality on Ground 2 and reasonableness on Ground 3. 80.Ground 1 in effect seeks to raise the question of what is capable of amounting to “misconduct”. 81.Section 10 of the PS(A)O materially provides as follows:
82.Under the definition provided in section 2 of the PS(A)O, “punishment” includes “dismissal, compulsory retirement, fine, reduction in rank, severe reprimand, reprimand, stoppage or deferment of increments and reduction in salary”, but excludes “retirement in the public interest under section 12”. 83.The PS(A)O does not define what constitutes “misconduct” on the part of a civil servant. However, some guidance is given in the “Guide for Inquiry Offices, Inquiry Committees, Assisting Offices And Accused Officers Involved in the Disciplinary Enquiries under PS(A)O Section 9 or 10” dated September 2010 (“Guide”). Paragraphs 4 and 5 of the Guide state that:
84.Mr Wong has relied on the propositions to be found in Khan v Bar Standards Board [2018] EWHC 2184 (Admin) at §§31 and 36, that (1) misbehaviour must attain a certain level of gravity before it can qualify as professional misconduct, and (2) a person is not to be regarded as guilty of professional misconduct if he engages in behaviour that is trivial, or inconsequential, or a mere temporary lapse, or something that is otherwise excusable, or forgivable – where there is a high threshold, and only serious misbehaviour can qualify. 85.In the specific context of teachers’ misconduct, Mr Wong has referred to the observation in Lone v Secretary of State for Education [2019] IRLR 523 at §27, that unacceptable professional misconduct is of a serious nature falling significantly short of the standard of behaviour expected of a teacher. Misconduct outside the education setting will come within this definition if it affects the way the person fulfils his or her teaching role, and conduct that may bring the profession into disrepute will be judged in a similar way. 86.Mr Wong submitted what he said were the two core points, namely that (1) the Facebook Posts were made outside the education setting, and (2) the Applicant had neither intended nor caused dissemination beyond her Facebook “friends” only, and had herself been the victim of unauthorised dissemination. 87.As to the first core point, Mr Wong submitted that the Code does not expressly state that it is applicable outside schools or outside the education setting. Further the contents of §4 of EDBIC 1/2010 and §6.2 of EDBIC 4/2016 suggest that the Code prescribed ethical standards of conduct for teachers in the execution of their professional duties. Whereas, in this case, there is no evidence that the making or dissemination of the Facebook Posts affected the way the Applicant fulfilled her teaching role or the execution of her professional duties. Indeed investigations have revealed no content relating to demeaning police officers nor foul language, nor discussion on political issues. 88.Mr Wong submitted that, because the Facebook Posts do not qualify as “misconduct”, the Secretary must have erred in accepting the finding of the Inquiry Committee to that effect. 89.As to the second core point, Mr Wong relied on what was in effect common ground that: (1) the evidence did not involve the Applicant’s making inappropriate speech inside the School; (2) the Facebook Posts were for “friends only”; (3) even the School staff were unable to see the Facebook Posts when they browsed the Applicant’s Facebook on 5 September 2019; (4) no students or parents were the Applicant’s Facebook friends; and (5) the Applicant had not intended the Facebook Post to be shared beyond her “friends”. But for the unauthorised dissemination, the Facebook Post would have remained private. 90.Mr Wong also submitted that there was no finding by the Investigation Committee that there was any adverse impact on students and the teaching profession (as opposed to bringing the Government service into disrepute). But, in any event, any adverse impact was caused by the unauthorised dissemination, rather than by the Applicant herself. The consequences giving rise to concern were the result of doxxing activities against the Applicant, activities which were common amid the social unrest in Hong Kong in the latter half of 2019. In other words, the Applicant actions should be viewed as “otherwise excusable, or forgivable”. 91.Mr Chan pointed to the fact that rule 7(2) of the PSDR specifically conferred on the Inquiry Committee the power to make such findings of fact as it may consider relevant, and to form the opinion as to whether or not the facts amount to misconduct. Mr Chan poined out that the Applicant does not say that the findings made on the evidence were not supported by the evidence. Neither does the Applicant say that the findings were illegal or unfair in the public law sense. Hence, Mr Chan submitted, Ground 1 is simply a disguised appeal and/or an invitation to the Court now to substitute its views for the views of the Inquiry Committee, which is impermissible. 92.I agree that, as a matter of law, it is not now open to the Applicant to revisit the Facebook Posts and to re-run the arguments which she previously ran (with the benefit of the same Counsel) on arguments which she lost, where there are no public law grounds to impugn the decision. Any intended challenge to factual findings made would have to be through the gateways permissible in judicial review. It is not possible to bring in arguments relating to proportionality in the absence of a public law challenge to the Inquiry Committee’s findings. 93.I acknowledge that it might be thought that a person’s Facebook page is inherently non-work-related, and would ordinarily be used for the expression of personal views about matters which have nothing whatsoever to do with that person’s work. But, that is not the end of the analysis, where it must be recognised that the expression of personal views outside the work context may nevertheless impact the work context, or the perception of others about persons working in that context. 94.Further, as was pointed out in Stocker v Stocker [2020] AC 593 at §§42-44 it must be recognised that social media are conversational media, and it is normally unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (i.e. an ordinary reasonable) reader would interpret the message. The nature of the conversation is where expressions are casual and often not carefully chosen, and it is pre-eminently one in which the reader reads and passes on. 95.In any event, the relevant Code and rules under which the Applicant served as a civil servant and teacher do not confine the duties to her teaching methods or materials. Just as the authorities relied upon by Mr Wong identify, certain conduct outside the education setting may come within the definition of misconduct, where it affects the way the person fulfils the teaching role or may bring the profession into disrepute. 96.Reference can also be made to a case cited by Mr Wong for a different purpose, namely Vogt v Germany (1995) 21 EHHR 205. The case concerned the dismissal of a teacher from civil service on account of her political activities, though the facts of the case were very far from the facts of the present case. Nevertheless, it was recognised at §60 that because teachers are figures of authority to their pupils, their special duties and responsibilities to a certain extent also apply to their activities outside school. 97.I would specifically note that it is not open to the Applicant to seek to assert through submissions of her Counsel in a judicial review what she might subjectively have intended by making the Facebook Posts. The opportunity to give that evidence was passed up by her in the Inquiry Hearing. Nevertheless, the Inquiry Committee had the benefit of competing arguments as to what to make of the Facebook Posts, and it was well able to have formed its own view looking objectively at the Facebook Posts with the benefit of that argument. 98.As to the breadth of dissemination of the Facebook Posts, the Inquiry Committee formed the view that even the 380 “friends” was a sufficiently large group to weaken any claim to privacy to the point of irrelevancy, and that the Applicant must have been aware of the real possibility of greater dissemination beyond that group. 99.In that regard, reference can be made to a case cited by Mr Wong, namely Kilin v Russia (Application No 10271/12, 11 May 2021) at §78, where it was stated (reference to authorities omitted):
100.Later in the same case at §91, it was stated (reference to authorities omitted):
101.I also think it was fair for the Inquiry Committee to form the view that the content of the Facebook Posts was not something which rationally contributed to public debate on a matter of public interest (a point which might be relevant also to the consideration of Ground 2 below). 102.In any event, it seems to me that it was perfectly open to the Inquiry Committee to find that misconduct had been established on the evidence placed before it, and in the light of the arguments presented to it. Similarly, there is no basis for interfering with the Secretary’s decision to accept the findings of the Inquiry Committee that the Applicant’s conduct has fallen short of the standards expected of a teacher and has brought the Government into disrepute, such that she had misconducted herself as particularised in the Statement of the Alleged Misconduct. 103.Ground 1 is not established. H. Ground 2: Whether disproportionate interference with the right to freedom of expression and/or right to privacy 104.It is fair to say that Ground 2 formed the main focus of Mr Wong’s oral submissions – where he submitted that the Court should be wary of any interference with freedom of expression which has a ‘chilling effect’ on free speech. 105.Mr Wong advanced his submissions orally starting with six broad propositions:
106.As to the first point, Mr Wong referred to the case of Kwok Hay Kwong v Medical Council of Hong Kong [2008] 3 HKLRD 524 at §30, where the Court of Appeal accepted as a general proposition what was said in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 at 126F-127A (reference to authorities omitted):
107.As to the second point, Mr Wong referred to the United Nation’s Human Rights Committee General Comment No 34 (2011), relating to freedoms of opinion and expression under Article 19. At §§11-12, it was stated:
108.It has been recognised that General Comments are valuable jurisprudential resources, not binding on this Court, but providing some influential guidance as to how the ICCPR is applied. I approach it on that basis. Looking at the Comment, Mr Wong drew attention to the fact that freedom of expression embraces matters which may be regarded as deeply offensive, including in Internet-based modes of expression. He also drew attention to the fact that at §36 of the same Comment, it was suggested that the scope of the freedom is not to be assessed by reference to a “margin of appreciation” (see also the sixth point below). 109.Mr Wong also relied upon what was said by the Court of Final Appeal in HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 at §§36-37:
110.With those sentences in mind, Mr Wong submitted that the approach adopted by the Secretary in this case was exactly contrary to the principle laid down, because it was said that the Facebook Posts did not contribute to public debate on matters of public interest. 111.Mr Wong described Savva Terentyev v Russia (Application No 10692/09, 28 August 2018) as the most instructive authority for the purposes of the present case. In the context of his second broad point, he referred to §68, where the Court reiterated that offensive language may fall outside the protection of freedom of expression if it amounts to wanton denigration, but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes. For the Court, style constitutes part of the communication as the form of expression and is as such protected together with the substance of the ideas and information expressed. 112.As to the third point, Mr Wong referred to the Savva Terentyev case at §62, where it was held that there is little scope for restrictions on political speech or on debate on questions of public interest. The Court pointed out that its consistent approach had been to require very strong reasons for justifying restrictions on such debate, for broad restrictions imposed on individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned. This was in the context of what was “necessary in a democratic society”, where the word “necessary” implies the existence of a pressing social need which must be convincingly established. 113.I think it helpful also to quote §§64-66 (omitting references to authority):
114.Reference can also be made to R (on the application of Miller) v The College of Policing [2021] EWCA Civ 1926 at §§68, 69 and 73. 115.Therefore, drawing some of the strings together, it seems to me that it can be seen that:
116.As to Mr Wong’s fourth point, I have already accepted above that the Court should take a context-specific approach in the proportionality analysis. There can be little doubt in this case that the Inquiry Committee, and subsequently the Secretary, were very conscious of the relevant context, as is this Court. I also accept that when anxiously scrutinising matters, the Court will be less inclined to accept ex post facto justifications from the decision-maker, compared to a traditional unreasonableness review: see, for example, MA v Director of Immigration (unreported, HCAL 10/2010, 6 January 2011) at §120. 117.As to the fifth point, it may well be correct that an expression has to cross a high threshold if it is to be seen to amount really to hate speech or an incitement to violence. But concrete expressions constituting hate speech are not protected. There is, of course a distinction of sorts between hate speech and incitement of violence. As regards incitement, the Savva Teretyev case used the concept of ‘clear and imminent danger of violence’ resulting from the expression, when considering if the statement in that case could be considered to be incitement. That phrase was taken from a Report of the Special Rapporteur quoted at §34. 118.As an aside, it can be noted that the same quote included a reference to the obvious fact that a statement released by an individual to a small restricted group of Facebook users does not carry the same weight as a statement published on a mainstream website. On the other hand, it was recognised in the Savva Terentyev case at §78 that the relevant comments being assessed in that case were not published against a sensitive social or political background, or where the general security situation was tense, or where there were any clashes, disturbances, or anti-police rights, or where there existed an atmosphere of hostility and hatred towards the police. As already noted, that is very different from the prevailing situation or context at the time of the Applicant’s making the Facebook Posts. 119.As to the sixth point, Mr Wong relied on Cheung Tak Wing v Director of Administration [2020] 1 HKLRD 906 at §§ 95-100, where – in a case assessing proportionality of the restriction on freedom of expression and demonstration at the forecourt of government offices – the Court of Appeal held that the applicable standard of scrutiny was that of “no more than reasonably necessary” in the proportionality analysis. It did so on the basis that, armed with proper relevant information provided to assist with conducting the necessary assessment, the Court was not so institutionally disadvantaged that the less stringent test of “manifestly without reasonable foundation” standard should be adopted. 120.Mr Wong also referred to Tagiyev v Azerbaijan (2020) 71 EHRR 15 at § 37, where in the context of restrictions on political speech or on debates on questions of public interest (so that the application of Article 10(2) of the Convention was readily applicable), the margin of appreciation of states is reduced. 121.But, as touched on above, and as Mr Chan submitted, expressions that promote or justify violence, hatred, or other forms of intolerance will not ordinarily be able to claim protection. The Court is sensitive towards sweeping statements attacking or casting a negative light on an entire group – in particular where the statements are made against a tense political or social background. Indeed, the presence of such a background has generally led to acceptance that some form of interference with such statements is justified: see, for example, Perinçek v Switzerland (2016) 63 EHRR 6 at §§ 205-208. 122.In any event, I think that the relevant standard of scrutiny in the present circumstances is more towards the “manifestly without reasonable foundation” test. It is well settled – see, for example, Leung Ka Lau v The Medical Council of Hong Kong [2021] HKCFI 2914 at §61 – that on such questions, the Court adopts a multi-faceted approach and takes into account, amongst other things, (1) the significance of the right involved, (2) the extent of the interference with the right by the impugned measure, (3) the nature of the measure, and (4) the identity of the decision-maker. Though the right to freedom of expression is an important right, I do not think the Applicant can be regarded as having by the Facebook Posts engaged in political speech or a debate on questions of public interest, and the relevant context for the consideration is clear, where the Inquiry Committee and subsequently the Secretary were well placed with relevant experience and expertise and professional judgment to deal with the management and discipline of civil servants and teachers in the civil service. 123.Nevertheless, I would also state that I do not think a difference of result would flow from adopting a standard of scrutiny more towards the “no more than reasonably necessary” end of the spectrum. 124.In the evidence for the Secretary, three legitimate aims were identified, being (1) upholding the core values, principles and the integrity of the civil service (including impartiality and political neutrality), (2) maintaining the public’s trust and confidence in teachers as well as the civil service, and (3) achieving the punitive and deterrent effect against the publication or dissemination of hateful, derogatory, obscene and indecent messages on social media by civil servants in a position of influence, such as teachers, with a view to protecting both the students and the public as a whole. 125.The Applicant did not significantly dispute that the first and second steps of the proportionality analysis are met. I accept that they are, indeed, met. The main challenge was to the third step of the analysis. But it is to be remembered that the very assessment of proportionality engages, or may engage, an assessment of the impact on other persons’ rights which are also engaged. 126.I accept Mr Chan’s submissions that: (1) by any measure, the Applicant was not making political speech or contributing to rational public discourse; (2) the Secretary was entitled to adopt the Inquiry Committee’s conclusion that the Facebook Posts with indecent logo, insulting, cursing and foul language, full of enmity towards the police during the period of significant political/social unrest, tension and turbulence constituted a serious breach of the Code and other requirements; (3) the Facebook Posts contain gratuitous and general attacks on police and their families; (4) the public has high expectations of teachers (who nurture future members of society) and civil servants (who serve the public); (5) it is of special concern that amongst the Facebook Posts was the apparent suggestion by innuendo that bullying or isolation of students who are children of police officers was justified. 127.I am less persuaded that the mere number of complaints lodged tells very much about the level of public opprobrium, as it should be recognised that there were echo chambers on different sides of the then apparently polarised elements within society. But I do not think the number of complaints is itself significantly weighty in the assessment as to whether the Facebook Posts fall below the relevant standard. 128.I also accept that, where it is undisputed that teachers and civil servants are permitted to express their views, provided that they do so peacefully and lawfully and take care to prevent their views being misused, the interference with the Applicant’s freedom of expression was limited. It is also relevant that the Secretary was well-placed to deal with matters of discipline within the civil service, supported by the Inquiry Committee and its findings, the EDB, the SCSD and the PSC (each with their own experience and specialism). 129.I find that the Dismissal Decision passes the third step of the proportionality analysis. As such, it is unlikely to fail at the fourth step. Subject to visiting the question of oppression specifically in the context of Ground 3 (see below), it seems to me that a fair balance has been struck between (a) the need to protect general societal interest (including the maintenance of public trust in teachers and the civil service) and (b) any inroads into the Applicant’s freedom of expression flowing from the imposition of a punishment. 130.The proportionality challenge fails. Ground 2 is not established. I. Ground 3: Whether Dismissal Decision is oppressive 131.For Ground 3, Mr Wong relied on the principle that there is a category of unreasonable decisions being those which are unduly oppressive because they subject the complainant to an excessive hardship or an unnecessarily onerous infringement of his rights or interests. 132.The focus of attention should principally be on the impact of the decision upon the affected person. Hence, it is the end-product or outcome of the decision-making process which is to be assessed, rather than the way the decision was reached. 133.This is the logical distinction between Ground 2 and Ground 3, and I do not think Mr Chan is correct when he suggested that Ground 3 is a re-run of Ground 2 but couched in common law irrationality, where it would be odd if the common law route would provide better protection or reach a result different from the proportionality route. As Mr Wong submitted, there is indeed a degree of overlap between this Ground 3 and the previous two Grounds 1 and 2, but the difference is that the focus is not on proportionality but whether the overall impact of the decision is oppressive. 134.Put another way, Ground 2 is concerned with the proportionality of punishment imposed against the interference with the right to freedom of expression, whereas Ground 3 is concerned with the overall reasonableness or rationality of the punishment against the particular misconduct being punished. 135.In other words, the question to be addressed is whether the Dismissal Decision is so disproportionate to the misconduct in question as to be perverse, or so unduly oppressive as to be unreasonable or irrational in the public law sense. 136.On the other hand, Mr Chan is obviously correct when he submitted that the Court will rarely disturb on irrationality grounds the sanction decided by professional disciplinary bodies. Ordinarily, professional disciplinary bodies are familiar with the whole gradation of seriousness of cases, and are particularly well qualified to say at what point on the scale the punishment becomes the appropriate sentence. Therefore, I accept that, for the Court to interfere, it is insufficient that the sentence is severe or even unduly severe or surprisingly severe. It has to be so harsh and oppressive or so far outside the normal discretionary limits as to enable the Court to say that its imposition must have involved an error of law of some description, even if it may not be apparent at once what is the precise nature of that error. 137.Mr Wong submitted that test is satisfied in the circumstances because:
138.In response, Mr Chan submitted that the Secretary had considered all relevant factors, including the various rounds of representations and the Psychiatric Report, such that the Dismissal Decision fell within her discretionary limits and was hence not irrational. He submitted that:
139.I confess to anxiously wrestling with this Ground. I am fully cognisant of the applicable principles I have set out above. But, for example, I am troubled by a statement made by the deponent on behalf of the Secretary in the evidence filed for these proceedings, where it was stated that:
140.It might be asked why this was the “only” appropriate punishment, when – even considering the three identified legitimate aims (see above) – at least compulsory retirement (without loss of retirement benefits) might seem to be within the bracket of appropriate punishments. Compulsory retirement is, after all, specifically referenced in section 10 of the PS(A)O, under which procedure the Inquiry Hearing and consideration of penalty was triggered in this case. But some explanation is offered in the evidence where it is reiterated that:
141.I acknowledge those points, though many of them go perhaps to the question whether there was misconduct, or how the penalty should be considered, rather than the appropriate penalty for the actual misconduct in this case. The points might show why the view was taken that the Applicant had to go. But the points do not seem necessarily to identify why she had to go, stripped of all benefits. In any event, I also think there is at least significant room to question whether real and significant weight has been actually given to at least the following factors:
142.On that latter point, relevant perhaps also to Ground 4 below, a problem potentially arose from the fact that it seems that the starting point of the consideration of punishment was dismissal without benefits, rather than there having been a consideration of the potential range of punishment ending with the decision of dismissal without benefits. 143.I am conscious that matters of weight to be given to individual factors are predominantly within the province of the Secretary as the decision-maker in this case. Nevertheless, stepping back – albeit not without some hesitation in light of the applicable principles – I am satisfied that the punishment of dismissal without benefits is so harsh and oppressive in the overall circumstances that its imposition must have involved some error of law. 144.Ground 3 is established. J. Ground 4: Whether failure to give any or any adequate reasons 145.Mr Wong submitted that the Dismissal Decision is tainted with procedural impropriety, in that the Secretary failed to give any or any adequate reasons for accepting the finding by the Inquiry Committee that the Applicant had misconducted herself as per the charge in the Statement of Alleged Misconduct, and/or directing that the Applicant be punished by dismissal under section 10 of the PS(A)O. 146.As will be seen below, I readily reject the first part of that criticism, but the second part of the criticism is perhaps stronger. 147.Further, if it is intended to be suggested that the Secretary did not herself make an independent decision, I reject that suggestion. The Secretary is entitled to be advised by those who served her, but she had various materials before her and it was for her to determine the relevant question. If the dates of signature on memorandum L/M 1 are of any assistance, they at least show that the Secretary did not make her decision on the same day as the recommendations from below. 148.As to the applicable principles, I accept the propositions that (1) there is no general duty to give reasons for administrative decisions, unless the nature or circumstances of an adjudication might indicate a necessity to do so, and (2) the Secretary does not, as a matter of course, have to give reasons. 149.It is well-settled that the requirement for reasons is based on fairness, so that the person adversely affected by a decision should have an adequate indication of the reasoning process, and where clarity and sufficiency of reasons also enable a supervisory Court in judicial review better to assess the legality of the decision under challenge. Courts are entitled to expect the answer to be sufficiently clear from the evidence, without having to resort to guesswork. But reasoning must be examined with reality and contextual common sense. 150.I hope I will be forgiven for adopting my own summary of principles which I gave in Wong Chau Ming v Secretary for Civil Service [2023 HKCFI 2468 at §80, as follows:
151.At §82, I also pointed out that a focus on the minutiae can give rise to an inherent risk of losing the wood for the trees. What must be remembered in cases of this kind, which look to administrative not judicial processes, is that unfairness, procedural or substantive, must be found to constitute an abuse of power. The unfairness must be conspicuous in some way. Technical omissions, minor slips, inconsequential delays or errors of form that have no consequence do not, unless they in totality can be seen to have destroyed the integrity of the entire process, go to prove that administrative process is rendered unlawful. 152.There is some force in Mr Wong’s submission that it remains unclear whether it is the Secretary’s position that she gave reasons, or that she did not because she did not need to. My own view is that, where what was proposed was the harshest possible punishment with its inherent characteristics, it was incumbent for the Secretary to have provided sufficient or adequate reasons to enable the Applicant to understand why that punishment – and, for example, not a relevant potentially different punishment – was being imposed. The question remains whether the Secretary’s reasoning was adequately clear to the Applicant. 153.For this case, Mr Chan submitted that the letter containing the Dismissal Decision (see above) must be read against the preceding lengthy exchange of correspondence with the Applicant. He submitted that, against that backdrop, the Applicant could not be left in any doubt as to the reason for the Dismissal Decision. 154.I accept that that is clearly correct insofar as the decision to accept the finding of misconduct was concerned. Against the backdrop of the detailed correspondence exchanged with the Applicant’s legal representatives, and with the benefit of the Inquiry Hearing conducted by the Inquiry Committee and its Report, the Applicant could not be left in any doubt as to the reason for the finding of misconduct and why it was accepted by the Secretary. 155.The position as to the decision on the appropriate punishment for that misconduct seems to me to be less clear. Rather, there is some force in Mr Wong’s submission that the Applicant would not know from the correspondence and exchange of materials an adequately full reasoning for reaching the Dismissal Decision. He said that the Secretary identified what she had considered, but not how she considered it, particularly in relation to the mitigation representations made on behalf of the Applicant, and further did not identify the reasons why the Dismissal Decision (as opposed to a less severe punishment, such as compulsory retirement) was made notwithstanding those representations. 156.The explanation of the Secretary’s approach is perhaps to be found in the evidence filed on her behalf, to which I have made reference above. It was stated there that, in considering the appropriate level of punishment for the established misconduct, the nature and gravity of the misconduct is the main determining factor, with any mitigating factors, as well as any other relevant circumstances, also being taken into account. That statement places main focus on the gravity of misconduct. The materials generated in this case certainly demonstrate that focus. What the materials do not seem to demonstrate is any real focus on the mitigating factors advanced, or other relevant factors, and the weighing of or reaction to them. 157.It is obviously correct that mitigating factors must be taken into account, and dealt with by an appropriate assessment of them. But that requirement does not seem to me to be easily satisfied by merely stating that they have been taken into account. At least, merely stating that they have been taken into account does not identify the reasons for accepting or dismissing them or giving them any particular weight in the overall decision-making process. 158.Another part of the explanation of the Secretary’s approach is that the focus was always on the recommended punishment of dismissal. From the ‘get-go’, that was the “only” punishment apparently in mind, and there seems to have been no other active consideration of any alternative form of punishment – at least not one taking into account both the nature and gravity of the offence but also the mitigating factors put forward, which factors to an extent focus on the impact of the punishment decision on the Applicant herself. 159.I see the argument that if the Applicant understands the reasons why it was decided to punish with dismissal without benefits, then she must by way of inference understand why it was decided not to punish with a more lenient punishment such as compulsory retirement. But I am not sure that is correct, if there is no clear identification of the options and why one option is chosen over another. 160.In any event, in light of my finding on Ground 3, ultimately I do not think I need to go further on this Ground 4, save to comment that it would have been preferable to have seen in any of the documents a real consideration of the points put forward in mitigation. If one reason for the giving of reasons is to see that important points and arguments made have actually been grappled with, I question whether that is clear here. K. Result 161.The result of my finding on Ground 3 is that I order the Dismissal Decision to be brought up and quashed. 162.I have granted the substantive relief sought, and am minded to award the Applicant her costs. But, in light of the mixed decisions on the individual Grounds, I reserve the question of costs to further argument, which I will deal with on paper.
Mr Anson Wong Yu Yat, instructed by Daly & Associates, for the applicant Mr Anthony Chan SC, instructed by the Department of Justice, and Mr Alvin Hor, Senior Government Counsel (Ag.), of the Department of Justice, for the respondent | ||||||||||||||||||||
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