Li Hao Tian v. The Secretary for The Civil Service

HCAL 585/2024

[2024] HKCFI 2580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 585 OF 2024

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BETWEEN

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J U D G M E N T

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A.  Introduction

1.By his Form 86 dated 11 April 2024, the Applicant seeks leave to apply for judicial review so as to challenge the decision (“Retirement Decision”)  of the putative respondent Secretary for the Civil Service (“SCS”), contained in a letter dated 22 January 2024, directing that the Applicant be retired in the public interest with effect from 23 January 2024 under section 12 of the Public Service (Administration)  Order (“PS(A)(O)”)  for the reasons of persistent sub-standard performance (“Section 12 Retirement”).

2.By way of intended relief, the Applicant seeks (1) an order that the Retirement Decision be quashed; (2) an award of damages in the form of financial loss; and (3) interim relief temporarily to put the Retirement Decision on hold.

3.I gave directions on 18 April 2024 to bring the matter to a rolled-up hearing on 26 July 2024 (and I declined to make any order for interim relief).  However, in light of the Applicant’s filing of an application for leave to apply for judicial review (HCAL 892/2024)  against the dismissal of his legal aid appeal and my directions given in that application, it seemed to me appropriate to permit the application in HCA 892/2024 to proceed first and to re-fix the date of the rolled-up hearing of the current application to 27 September 2024.

4.I dismissed the application made in HCAL 892/2024 by my Decision dated 9 September 2024, [2024] HKCFI 2266.

5.In these proceedings, the Applicant filed four affirmations dated 11 April 2024, 25 June 2024, 17 July 2024 and 26 July 2024.  The following officers/employees of the Government made the following affirmations or affidavits, on behalf of the SCS, in opposition to the application:

(1)  affirmation of Li Kwok Chu Raymond, who was the supervisor of the Applicant between 18 May 2020 and 17 May 2021 and the appraising officer (“AO”)  of the Applicant in the appraisal reports covering the periods between 18 May 2020 and 31 December 2020 and between 1 January 2021 and 17 May 2021, dated 31 May 2024;

(2)  affidavits of Tam Hoi Yan, Departmental Secretary of Civil Aviation Department (“CAD”), dated 5 June 2024 and 22 July 2024;

(3)  affirmations of Lau Mei Ling, Assistant Secretary (Conduct and Discipline)  of the Civil Service Bureau (“CSB”), dated 5 June 2024 and 22 July 2024;

(4)  affirmation of Fong Yik Siu, who was the supervisor of the Applicant between 18 May 2021 and 2 April 2022 and the AO of the Applicant in the appraisal report covering the period between 18 May 2021 and 31 December 2021, dated 5 June 2024.

6.At the hearing, the Applicant acted in person, and the SCS was represented by Mr Tommy Cheung of Counsel and Ms Celina Lam, Government Counsel of the Department of Justice.  At the end of the hearing, I reserved my decision to be handled down later.

7.This is my Judgment.

B.   Section 12 Retirement Mechanism under the PS(A)O

8.The operational aspects of the Section 12 Retirement process were helpfully summarised in Ms Lau’s evidence, which is broadly as follows:

(1)  Performance management of employees with persistent sub-standard performance: where an officer is not performing to the standard appropriate to his or her rank and experience, he or she should be so advised, and helped in order to improve his or her performance through supervision, counselling, training, posting or other administrative measures, as appropriate.  When efforts to help the sub-standard performer improve do not achieve the desired results and when the unsatisfactory performance as reflected in the appraisal report(s)  has covered a total of not less than 6 months, recourse to retirement in the public interest under section 12 of PS(A)O should in general be considered.

(2)  The mechanism: section 12 action is initiated by the Government bureau or department (“B/D”)  concerned, based on the overall performance rating of the officer’s appraisal reports at “unsatisfactory” level or below.  The CSB, being independent from the B/D of the officer concerned, would review the case and seek the advice of the Public Service Commission (“PSC”)  – an independent statutory advisory body to the Chief Executive on civil service appointments, promotion and discipline – before submission of the case to the decision authority which is outside the B/D of the officer concerned.  During the process, the officer would be invited to submit his or her representations on at least four occasions at various stages.

(3)  The steps involved in a section 12 action are as follows:

(a)  Step 1 – timely management action by completing appraisal report;

(b)  Step 2 – issuance of written advice to the officer concerned;

(c)  Step 3 – notification of section 12 action to the officer concerned;

(d)  Step 4 – seeking advice of an independent panel, comprising a directorate officer to help maintain impartiality and consistency, and one or more officer(s)  who has or have good knowledge of the work the grade to which the officer belongs but without direct supervisory responsibilities over him or her;

(e)  Step 5 – decision on way forward by head of department (“HoD”)  or head of grade (“HoG”);

(f)  Step 6 – examination and processing of HoD or HoG’s recommendation and draft letter-of-intent by the CSB;

(g)  Step 7 – issue of letter-of-intent and consideration of representations from the officer concerned;

(h)  Step 8 – the CSB seeking advice from the PSC;

(i)  Step 9 – the CSB seeking the SCS’s approval on taking forward the section 12 action;

(j)  Step 10 – the CSB informing the officer concerned of the decision through his or her HoD or HoG.

C.   Rounds of Representations

9.During the process of the section 12 action against the Applicant, several rounds of representations were made by the Applicant.  The brief history of the rounds of the representations and the CSB’s responses, which are relevant to the issues of this application for leave to apply for judicial review, are summarised below.

10.By letter dated 25 June 2021, the CAD notified the Applicant that a section 12 action might be invoked against him if he was unable to make improvement in his performance within the observation period, and invited the Applicant to make representations, which were received by the CAD by email on 2 July 2021.

11.The CAD informed the Applicant, by its advisory letter dated 5 January 2022, that consideration was being given as to whether section 12 action should be invoked against him, and received the Applicant’s letter dated 13 January 2022 which set out his representations.  In reply to the CAD’s invitation on 8 February 2022 for submission of further representations, by a chain of emails between 8 February 2022 to 14 February 2022, the Applicant provided his views and put forward his queries to the CAD.

12.On 17 March 2022, the independent panel formed on 5 January 2022 (“Independent Panel”)  made its recommendation to the Director-General of Civil Aviation (“DGCA”)  to take section 12 action against the Applicant and put his case to the CSB for further processing, which was endorsed by DGCA.  By letter dated 29 April 2022, the CAD notified the Applicant that section 12 action would be invoked against him, and that his case would be submitted to the CSB for consideration of taking section 12 action.

13.The Letter-of-Intent dated 3 October 2022 was issued by the CSB to the Applicant (“CSB’s Letter-of-Intent”), informing him that consideration was then being given to requiring him to retire from the civil service in the public interest under section 12 of PS(A)(O).

14.The CSB’s Letter-of-Intent set out, amongst other things:

(1)  the summary of the major inadequacies or deficiencies of the performance of the Applicant concerning his “inadequate professional expertise and knowledge” and “poor core competences” during the observation period; and

(2)  the CSB’s view that (a) the Applicant had clearly been informed of the duties assigned to him by his supervisors, but he persistently failed to meet the requirements and standards of performance; (b) his supervisors had made reasonable efforts in providing him with suitable assistance and guidance, and giving him sufficient time and chances to bring his performance up to the acceptable level; (c) the Applicant had been given counselling and forewarned of possible section 12 action should he fail to improve his performance to the acceptable level, had been given chances to make representations at different junctures, and had provided his representations on 2 July 2021 and 13 January 2022 which had been considered by the CAD and the CSB; and (d) no procedural irregularity was observed in the CAD’s performance management of his case and handling of the section 12 action against him, and the CSB’s response to his views on the CAD’s handling of his case as mentioned in his representations dated 13 January 2022.

15.The CSB’s Letter-of-Intent also invited the Applicant to make representations as to why he should not be required to retire in the public interest on grounds of persistent sub-standard performance, prior to making any decision as to whether the section 12 action should be taken against him.

16.In reply to the CSB’s Letter-of-Intent, the Applicant submitted his 153-page representations dated 31 October 2022 with 8 enclosures, which (in summary)  related to the following points advanced:

(1)  The CAD’s posting arrangement of re-deploying the Applicant from the Air Traffic Engineering Services Division (“AESD”)  to the Air Traffic Management Division (“ATMD”)  was unreasonable.

(2)  The CAD provided inadequate or unclear guidance, advice counselling or training for the Applicant in his daily work.

(3)  The CAD lacked a standard for benchmarking his work.

(4)  The Applicant was subjected to an information collection process whereby he would collect information from a single person within ATMD.

(5)  Lack of grade management review on the Applicant’s appraisal reports to ensure consistency of the performance grading.

(6)  The section 12 action was a potential “revenge” by Mr Richard Wu, Deputy Director-General of Civil Aviation (1)  due to the Applicant’s past complaints against him.

(7)  The appraisal reports contained unsubstantiated or unfair assessments of the Applicant’s work performance.

(8)  The appraisal reports contained false accusations by the CAD in relation to:

(a)  the Applicant’s rejection of training opportunities; and

(b)  the Applicant’s non-compliance with vaccination requirement.

(9)  The appraisal interview arrangements were improper.

(10)  The assessment of the Independent Panel was unfair.

(11)  There were procedural improprieties in the arrangement of special appraisal report and the appraisal process.

(12)  There was impropriety in the CAD’s handling of the Applicant’s request for a copy of his appraisal report.

(13)  The CSB’s late provision of information requested by the Applicant and the insufficient time for his preparation of the representations.

(14)  The CSB’s incomprehensive assessment and false claims due to misguided information provided by the CAD.

17.After consideration of the Applicant’s representations, the CSB was of the view that the Applicant had not put forward any pertinent new grounds for not retiring him in the public interest under section 12 of PS(A)O.  A memo prepared by the CSB dated 26 June 2023 (“CSB’s Memo”)  was submitted to the PSC to seek the latter’s advice on whether the Applicant should be retired in the public interest under section 12 of PS(A)O.  The CSB’s Memo set out, amongst other things:

(1)  the performance deficiencies of the Applicant;

(2)  management action;

(3)  pre-section 12 action;

(4)  advice of the Independent Panel to advise the DGCA on the way forward in handling the Applicant’s case;

(5)  the section 12 action: issue of Letter-of-Intent and the Applicant’s representations; and

(6)  the CSB’s views.

18.Annex 20 to the CSB’s Memo is a table summarising the Applicant’s grounds in his representations dated 31 October 2022 and CSB’s responses.

19.It is not necessary to repeat all the contents of the representations and responses, but some might be set out as items relevant to the issues in this application:

	Applicant’s Representations dated 31 October 2022	CSB’s response
(A)   Day-to-day management
1.	Civil Aviation Department (“CAD”)’s unreasonable posting arrangement by redeploying Mr LI [i.e. the Applicant] from Air Traffic Engineering Services Division (“AESD”)  under supervision of the same grade officers to a previously non-existed position in the Air Traffic Management Division (“ATMD”)  assessed by different grade officers. [emphasis added]	The point was also raised by Mr LI in his representations dated 2.7.2021 and 13.1.2022, and has been addressed by CAD.  Mr LI’s allegation against CAD is unsubstantiated, and does not constitute a pertinent new ground for not taking section 12 action against him. … As a competent EE [i.e. electronic engineer], Mr LI should be able to handle the assigned job irrespective of his posting.  CAD has also explained to Mr LI the arrangement of deployment of an EE to work in another division including ATMD vide repeated verbal advices from his supervisor and emails from the Administration Division of CAD on 13.4.2021 and his HoG [i.e. head of grade] on 29.4.2022.
…	…	…
4.	Information collection process imposed by ATMD management was restricted to a single person within ATMD. [emphasis added]	This point was also raised by Mr LI in his representations dated 2.7.2021 and 13.1.2022, and has been addressed by CAD.  Mr LI’s claim provides no good explanation for his persistent sub-standard performance, nor does it constitute a pertinent new ground for not taking Section 12 action against him. We are of the view that CAD’s arrangement to assign a designated contact point to facilitate information exchange as well as information security control between divisions should not be a reason barring Mr LI to proceed with his work in a satisfactory manner and to make the necessary improvement.
…	...	…
6.	Section 12 action being a potential “revenge” by Deputy Director-General of Civil Aviation (1)  (“DDGCA(1)”)  (Mr Richard WU)  due to Mr LI’s past complaint against Mr WU. [emphasis added]	This point was also raised by Mr LI in his representations dated 13.1.2022, and has been addressed by CAD.  The allegation by Mr LI is groundless and unsubstantiated, and does not constitute a pertinent new ground for not taking Section 12 action against him. The recommendation for CSB to proceed with Section 12 Action was made by DGCA in person (not by DDGCA(1)), with the support of the Independent Panel after examining the performance appraisals on Mr LI from 18.5.2020 to 31.12.2021.  Mr LI did not provide any valid/concrete evidence to substantiate the claim on “revenge” by a senior officer in CAD in his current and previous representations.  The unfounded accusation does not constitute a pertinent new ground. We also understand from CAD that DDGCA(1)  did not participate in the performance assessment of Mr LI for the observation period or the deliberation process of CAD’s Independent Panel.
(B)   Pre-section 12 action
7.	Unsubstantiated / unfair assessments in the appraisals concerned on Mr LI’s poor performance, such as – … (c)  R/O [i.e. reviewing officer], C/O [countersigning officer] and A/O [appraising officer] having biased view on Mr LI during the observation period; [emphasis added]	… The civil service appraisal system provides multiple-layer assessment of the appraisee, and A/O, C/O and R/O each has a specific role in the appraisal system.  With access to information on the appraisee’s performance and an overall view of other officers operating at the same level, RO is in suitable position to monitor the standard of appraisal and give a fair assessment on whether the ratings are justified.  Any disagreement from the appraisee against the assessment of A/O and C/O will also be considered by RO.  For Mr LI’s case, his R/O is also the HoG who is the final authority to determine on such complaints/appeals against the performance assessment. In the present case, Mr LI has been invited to provide his views/disagreement on the assessments of A/O and C/O through appraisal interviews and his notes of disagreement.  Disagreement/views from Mr LI were provided to R/O for consideration.  R/O was a directorate officer at DPS Point 2 and HoG of all EEs, which is a responsible rank/position for an officer with necessary experience in the profession and the department.  Upon careful examination, R/O dos not identify any unfair/unjustified rating relating to the assessment in Mr LI’s appraisal.  In the absence of any concrete evidence provided by Mr LI to the contrary, there is no reason to doubt the impartiality of R/O and his assessment on the appropriateness of the duties and standards required on Mr LI.
…	…	…
10.	Unfair assessment by the Independent Panel – (a)  panel members were highly probable of being affected by their respective HoG who were C/O or R/O of his case; [emphasis added]	… We note that CAD’s establishment of the Independent Panel complies with the requirement set out in para. 12 of CSB Circular No. 9/2005.  There is also a declaration system in place for Independent Panel Chairperson and members to declare any conflict of interest with Mr LI and no conflict of interest was identified in the Independent Panel. The Independent Panel’s report provided observation and comments on Mr LI’s case after examining the relevant documents and discussion on the case, and set out advice for HoD’s consideration before the latter’s making of a decision on whether to proceed with Section 12 action.  It had studied relevant information on Mr LI’s case (including his notes of disagreement in relation to his appraisal reports, representations of 2.7.2021 and 13.1.2022 covering, among others, his views on the procedural correctness and justice concerning his performance assessment)  before forming their views to HoD. Without any concrete evidence provided, Mr LI’s suspicion that the Panel members might have been affected by C/O and R/O is an ungrounded speculation.

20.The CSB issued a letter on 15 August 2023 (“CSB’s Letter dated 15 August 2023”)  to inform the Applicant that, after consideration of his representations dated 31 October 2024, it was of the view that he had not provided any valid grounds warranting variation of the CSB’s recommendation of retiring him in the public interest (supported by the PSC), and it invited the Applicant to make further representations prior to putting his case to the SCS to make a decision.

21.In reply to the CSB’s Letter dated 15 August 2023, the Applicant submitted his 107-page representations dated 12 September 2023 (with 4 enclosures)  to the SCS.  Without invitation and on his own initiative, the Applicant then submitted further representations dated 12 January 2024 (16 pages with 4 enclosures)  to the SCS, i.e. four months after the deadline for his ‘last word’.

22.By her minute dated 18 January 2024 to CSB (M.3), the SCS stated that (1) having considered the case put up by CAD and all of the Applicant’s representations, including the additional representations made four months after the deadline for submission of his last word, she was of the view that the performance of the Applicant had been persistently sub-standard despite the training, advice and counselling given to him; and (2) she had looked at the process and had found no impropriety. Hence, the SCS’s decision that the Applicant should be retired in the public interest.

23.As mentioned above, the Applicant was notified of the Retirement Decision by a letter dated 22 January 2024.

D.   The Intended Grounds of Review

24.It is trite that in an application for leave to apply for judicial review, the applicant is mandated properly to identify a specific and proper ground of review, namely by the identification of an alleged public law wrong.

25.In his Form 86, instead of identifying any alleged specific public law error in the Retirement Decision, the Applicant set out in the part titled “Grounds on which the relief is sought – Summary” that the ground relied upon by him is that the Retirement Decision was made “on the direct consequence of unlawful grounds, which is misconduct in public office, and hence shall be quashed”, which was followed by his elaboration on why certiorari, an award of damages and interim relief should be granted.

26.However, the Applicant’s grounds of review, as ‘clarified’ by him in his 3^rd Affirmation dated 17 July 2024 and Skeleton Submissions dated 13 September 2024, have been re-framed (in summary)  that:

(1)  Ground 1: there was illegality in the failure of the SCS to take into account relevant considerations and fettering her decision (“Illegality Ground”).

(2)  Ground 2: there was Wednesbury unreasonableness, on the basis of the SCS having considered factors “behind the Applicant’s back” (“Unreasonableness Ground”).

27.To succeed on the leave application, the Applicant has to persuade this Court that either of the above Grounds is reasonably arguable with a realistic prospect of success.

28.Whilst the two grounds have been put forward by the Applicant separately, they are at least overlapping, and it might be said that one seeks to build on top of the other.  For that reason, whilst I think it is convenient to set out the arguments on the Grounds separately, I will consider analysis of them together.

29.It is also fair to point out that, in his oral submissions, the Applicant was quick to acknowledge that judicial review is not concerned with the substantive merits of the impugned decision, though he sought to emphasize the Court’s substantial power to interfere where a public law error has been shown.

E.   The Argument/Submissions

E.1  Illegality Ground

30.As to the complaint about the decision-maker’s failure in taking relevant factors into consideration and fettering of decision, the Applicant’s submissions may be summarised as follows:

(1)  The case as presented against him was based on limited points and incomplete, which created a “loophole in justice” (to use the Applicant’s words).

(2)  The situation is rather unusual as there is “unchallenged evidence”, for example, that:

(a)  he had been performing effectively for over 7 years as assessed by various officers under the same professional grade as him;

(b)  the “sub-standard” performance was only under the temporary deployment as assessed by officers of a different grade;

(c)  the temporary deployment was irregular and unprecedented in that he was not being posted under the section being approved for temporary deployment and under a hierarchy very different from other officers of the same rank in the CAD;

(d)  the same task could have been completed without any need for temporary deployment (which was claimed to achieve the aim of increasing work efficiency and enhancing communication and coordination between AESD and ATMD);

(e)  significant parts of the basis of the assessment had been shown as factually incorrect;

(f)  the supervising officers were reluctant to clarify the scope of work assigned to him (the Applicant set out a total of 12 examples of the alleged “unchallenged evidence”, which need not be repeated all here).

(3)  Hence, the SCS failed to take most of these “unchallenged evidence” into consideration in the decision-making process.

(4)  Being the direct subordinates of the reviewing officer (“RO”)  and the countersigning officer (“CO”)  responsible for the assessment of his performance, the impartiality of the members of the Independent Panel within the CAD had been compromised, because it would be obvious that it is embarrassing for them to give opinions adversely against their respective immediate supervisors.  This evidenced the lack of impartiality.

(5)  Furthermore, the RO had lost impartiality, which is supported by the fact that with the absolute authority of the RO in staff deployment, it is questionable that it must be the Applicant to be chosen for temporary deployment for almost 4 years after 3 reviews.  It was an attempt to bring down his performance.  The SCS also failed to take these important relevant factors into account.

(6)  The fact that the SCS had to adduce fresh evidence, which had never been adduced in the decision-making process, with some of them contradicting the contemporaneous documents and supporting the performance assessment being plainly wrong, shows that the SCS failed to take account of relevant factors.

(7)  In addition, over-reliance of the SCS on her subordinates’ summaries, which excluded or included incorrectly essential factors, is one of the reasons for not including those factors, but what is material is that the operation of such policy became inflexible as a result.

(8)  There are available vacancies within the permanent establishment, for which the Applicant had a track record of effective performance (for 7 years)  but this was not considered.

(9)  Those vacancies could be filled by him with internal qualifications that no newly hired officers could replace, and therefore it is obvious that “conditions of the public service, the usefulness of the officer thereto” was not properly taken into consideration and no genuine “help” was given to him in performance improvement through administrative measures to achieve desired result.

(10)  In reply to Mr Cheung’s contention, citing Aguilar Joenalyn Elmedorial v Director of Immigration (unreported, HCAL 40/2011, 17 May 2012)  at §43, that “in the absence of cross-examination, if there is a dispute of fact on the evidence, it should generally be resolved in favour of the respondent [i.e. the SCS]”, it is not applicable to the present case as the Court of Appeal has different views on the issue.

(11)  The material complaints made by the Applicant against officers with actual power over such unusual deployment were not considered and hence justice could not be applied in this case.  Such complaints warranted the SCS to examine them more carefully as he was the only person under temporary deployment.

(12)  Therefore, the SCS had fettered her decision from such inflexibility.

31.The Applicant also submitted that:

(1)  There is no need for the Court to look into the merits of the Retirement Decision.  But though he made this point at least twice, he also made the following points.

(2)  Even though his representations with attachments and enclosures had been included in the decision-making process, there was no proper consideration by the SCS.  For example, the Applicant pointed out that it had been suggested that he had been provided with three counselling sessions aimed at helping him in performance improvement, but he argued that there was actually no genuine counselling, showing that the SCS had not properly taken his explanation into account.

(3)  His appraisal reports should not be considered in isolation but must be read in context.  For example, the allegation that his attitude at work was evasive was incorrect because his former supervisors refused to discuss with him and just told him to go ahead with the task assigned, which suggests that there was no basis for the SCS to reach a conclusion on his “evasive” attitude at work.

(4)  Mr Cheung’s argument that his former supervisors told the truth and made affirmations in support of the SCS to oppose the application for leave to apply for judicial review is devoid of merit, because the Applicant also made affirmations in support of his application.

(5)  Similarly, the impartiality of the Independent Panel was questionable because its members were subordinates of ROs and were only required to make declaration for the conflict of interest.

(6)  The PSC merely relied on the summary prepared by the CSB for the PSC, and therefore could only speculate on everything behind, as the summary had been prepared unfairly and with bias.

(7)  It is not necessary for him to deal with all the negative comments against him such as the alleged lack of judgment and power of reasoning, as they cannot stand against the evidence.

32.Mr Cheung’s submissions in response were, in summary, that:

(1)  The Applicant’s two Grounds are intertwined.

(2)  The CSB’s Note to the SCS was prepared by her subordinates as a summary to invite her to make a decision.  The summary is accurate and fair.  All relevant considerations had been considered, and there was nothing “not known” to the Applicant.

(3)  Ground 2 cannot succeed unless unfairness could be shown in the CSB’s Note.

(4)  The ‘last word’ of the Applicant was duly received by the SCS, and all opportunities were provided to the Applicant fairly to make representations.

(5)  Although the Applicant accepted that this application is not intended for re-adjudicating the merits of the Retirement Decision, his oral submissions were indeed directed at a review of the merits, for example, his argument against the “unusual” temporary posting, which is not unusual at all.

(6)  As regards the Applicant’s assertions of certain “unchallenged evidence” in respect of the unusual situation as alleged by him, they are unfounded and misconceived.

(7)  The Applicant failed to pinpoint what relevant considerations were allegedly not taken into account by the SCS:

(a)  In relation to discretionary considerations to the extent that the decision-maker has decided to take into account any particular factor as being relevant to the exercise of discretion, the weight given to that factor is likewise a matter for the decision-maker, not for the Court, subject only to Wednesbury unreasonableness.

(b)  The matters as alleged by the Applicant had indeed been raised extensively in rounds of representations made by the Applicant, together with the attachments duly placed before the SCS for consideration, who had already considered them.

(c)  In respect of the merits of the Retirement Decision, it is clearly within the reasonable range of decisions.

(8)  Regarding the Applicant’s allegations, as set out in his 3^rd Affirmation dated 17 July 2024, that the SCS failed to take account of relevant considerations of unreasonable arrangements that (i) there was information access restriction, and (ii) there had been immediate needs in manpower within the vacant permanent establishments which the Applicant had track records of effective performance, these matters had indeed been extensively raised by the Applicant in rounds of his representations, which were already considered by the SCS.

(9)  As to the alleged information access restriction:

(a)  Apart from the fact that Mr Raymond Chan, who was the Senior Air Traffic Control Specialist (System), was made a contact point for the Applicant to obtain information from AESD, the Applicant could also obtain information within ATMD or other information available by his own means and/or research.  This is in line with the evidence provided by Mr Fong, who was the AO of the Applicant from 18 May 2021 to 31 December 2021, covering the Applicant’s 3^rd appraisal report.

(b)  The Applicant’s allegations are unlikely to be true because, although the Applicant did not agree that the information provided by Mr Chan to him was sufficient, the Applicant did agree that Mr Chan provided him with information on two occasions.  As explained by Mr Fong, such information already covered more than 60% of that requested by the Applicant in June 2021, which was sufficient for the Applicant to start the study, and most of the remaining information could be obtained by the Applicant from public domain and/or through his own research and/or efforts.

(c)  The Applicant was provided with repeated guidance and advice from Mr Fong on the way of using the information given to him for commencement of work on a draft, but the Applicant failed to pay attention to Mr Fong’s advice, as shown in the contents of the draft Very High Frequency review report submitted by the Applicant in November 2021.

(d)  Using an unjustified excuse, the Applicant did not attend a site visit to the antenna farms arranged by Mr Fong for him, which was an opportunity for him to have direct communication with the subject expert from AESD and obtain relevant data and information at site to facilitate his work.

(e)  In particular, the SCS was of the view that the coordination of information access “should not be a reason barring [the Applicant] to proceed with his work in a satisfactory manner and to make the necessary improvement”, and that the reasons provided by the Applicant focusing on “limited information flow” are his “excuses that only exposed his evasive work attitude”.  This unfounded allegation was indeed considered by the SCS.

(f)  The former supervisors of the Applicant, who have reached the very end of their post-retirement service contracts with the Government, are retired officers of the Government but still chose to come forward to tell the truth and give affirmation evidence, which is a serious matter.  They did assess the performance of the Applicant impartially.

(10)  As to the alleged alternative re-posting option:

(a)  The Applicant’s contention that the SCS fettered her decision to the only choice of retirement in the public interest, rather than re-posting the Applicant to take up the vacancy in the permanent establishments, is unmeritorious.  It is clear that the SCS was aware of and considered the alternative option of re-posting him to AESD within the CAD, as shown in the table of the representations made by the Applicant, the response from the CSB and also the 2^nd appraisal report and the 3^rd appraisal report.  As reflected in the CSB’s Note, it was of the view that reasons provided by the Applicant, including the refusal of the CAD to arrange for re-posting, were just excuses illustrating his evasive attitude at work.

(b)  The employees of the Government are generally not allowed to change posts when their performance deteriorates.  If such argument is allowed, it would be detrimental to the Government’s manpower deployment.  In fact, arrangement was made in 2021 to change the job nature for and the supervisor of the Applicant, which was a chance for him to show improvement in his performance.

(c)  It has to be emphasised that re-posting is not an option that must be considered.  If it is a marginal case, re-posting may be an option.  But, as regards the Applicant’s case, all reports and comments show that it is clear-cut case justifying the Retirement Decision.

(11)  Judicial review is not intended for micro-managing the activities of the administrative decision-makers.

E.2  The Unreasonableness Ground

33.The Applicant contended (in my summary)  that:

(1)  The SCS failed to take certain factors as identified in Ground 1 as relevant considerations but argued that such factors had indeed been considered, which “constituted considerations behind the Applicant’s back” (in the Applicant’s words).  So, the timing and manner of the consideration of those factors had never been made known to the Applicant for making any meaningful representation and that caused prejudice to him.

(2)  The Note, placed before the SCS before the Retirement Decision was made, contains material errors against the Applicant, did not present both sides’ arguments fairly and is prejudicial to him, as if his representations had never come to existence.  It is a “prejudicial summary” without letting him know the contents, and therefore denied him the chance to provide a further response.  The Retirement Decision was thus made procedurally unfairly, which justifies the Court’s intervention to quash it.

(3)  If those factors had been included, the decision to retire an “on-loan officer” like the Applicant, instead of posting him back to the permanent vacancies temporarily filled by doubling sideways or doubling down internally, and hiring of post-retired engineering grade officer, would be Wednesbury unreasonable, because the Applicant had a substantial proven track record of effective performance under the permanent establishments.

(4)  The Retirement Decision was irrational in the sense that no rational authority would retire the Applicant without considering other options.  Also, questions in relation to the reasons for extension of the period of the temporary deployment were never asked.  Hence, it was malicious to retire him and the bad faith was clear.  The SCS did not look into the merits of the case and acted recklessly.

(5)  It would be more even more irrational if the SCS had taken into consideration any other factors as set out in Ground 1, but still decided to retire the Applicant in the interest of the public, as those factors were repeatedly brought up to the SCS during the decision-making process.  Should Ground 1 be challenged by the SCS that the factors had indeed been considered, Ground 2 would also justify the Court quashing the Retirement Decision.

34.The gist of Mr Cheung’s response to this Ground was that:

(1)  It is the mistaken belief of the Applicant that his attachments and enclosures were not provided to the relevant decision-maker during the decision-making process, or that certain matters raised by the SCS in these proceedings are “fresh”.  Indeed, the attachments and enclosures were duly considered in the decision-making process, as shown in the summary table of the Applicant’s representations and the CSB’s responses (in CSB’s Memo to the PSC).

(2)  There are two material implications.  First, the Applicant’s contention on the basis of non-provision of his attachments and enclosures has to be rejected, as it is factually untrue.  Second, the challenges repeatedly advanced by the Applicant in his affirmations were duly considered in the decision-making process, including the uninvited last representations of the Applicant submitted on his own initiative four months out of time. There was no procedural unfairness.

(3)  With the independent advice of the PSC and objective assessments by qualified and professional AOs, COs and ROs in B/D as well as the Independent Panel, the SCS was in the best position to assess whether it was in the public interest to direct the Applicant to retire on the ground of persistent sub-standard performance, by taking account of materials placed before her including the relevant appraisal reports, the Applicant’s representations with attachments and enclosures, the summary table setting out the responses of the CSB, and the PSC’s independent advice.  There was no prejudice or unfairness as all relevant matters were placed before the SCS.

(4)  The CSB’s Note, which was largely adopted from the CSB’s Memo to PSC, set out details of the Section 12 Retirement against the Applicant, accurately and without error.  Before the Applicant had his ‘last word’, a copy of the CSB’s Memo was provided to him.  The remaining parts of the CSB’s Note, being (i) the PSC’s advice, (ii) a factual account of the invitation process and the receipt of the last word of the Applicant and (iii) the CSB’s recommendation for retirement, were not new to the Applicant.  As the CSB’s Note was necessary to present the materials and set out the recommendation of the CSB, there was no unfairness.

(5)  The Applicant’s contention of unreasonableness has no merit.  The update to the annex to the CSB’s Note was usual as it had been done in view of the development of the Applicant’s case.  The Applicant has no entitlement to making a further round of representation.

(6)  The Retirement Decision is clearly within the range of reasonable responses which could be rationally made by the SCS, who has the relevant professional experience and expertise in civil service and took account of the unanimous support from the CAD, CSB and PSC, and is therefore not irrational.

35.Mr Cheung also emphasised that (1) under a Section 12 Retirement, the Applicant retains all the accrued retirement benefits, and could seek other employment in the job market; and (2) a “minor slip” (in Mr Cheung’s words)  or ‘defect’ in the decision-making process, does not mean that there is unfairness.

F.   Analysis

36.As stated, it is logical to deal with Grounds 1 and 2 together.

37.In this case, from the arguments set out above, it seems to me that the Applicant’s submissions essentially contend that the SCS’s failure to give proper weight to certain aspects of the materials (including the representations made by the Applicant at different junctures)  is of such a magnitude that it gives rise to the alleged Wednesbury unreasonableness or irrationality. That is why I think it is appropriate to consider these two Grounds together.

38.First, of course, the starting point of the analysis is not whether the Applicant should or should not have been retired in the public interest.  The question now before the Court is whether there was any public law error in the consideration of that question by the SCS.

39.Secondly, it is also trite that the weight to be given to particular aspects of the evidence/submissions is ordinarily a matter for the decision-maker, and complaints that insufficient weight has been given to one aspect or another does not usually provide fertile ground for a judicial review challenge.  For an applicant who puts forward Wednesbury unreasonableness or irrationality, there is a high hurdle to overcome.

40.Thirdly, as traversed above, rounds of representations had been made by the Applicant, and the CSB already provided its response to the Applicant’s various allegations such as unreasonable posting arrangement, restriction on information access, the section 12 action as a potential revenge on the Applicant due to his previous complaints against the CAD and its senior officers, bias of the AOs, CO and RO and lack of impartiality of the Independent Panel.  The very volume of the materials (over 2,000 pages), comprising the lengthy representations from the Applicant and attachments and the detailed responses to those representations, seem to me to illustrate the in-depth consideration given to the various points raised.

41.I also see great force in the oral submissions advanced by Mr Cheung – who referred to the contemporaneous documents, including CSB’s Memo to PSC, CSB’s Note, the Applicant’s Work Report and the emails exchange between the Applicant and his supervisors – that:

(1)  independent advice from the PSC was sought prior to making the Retirement Decision;

(2)  all representations made by the Applicant were considered, and the CSB’s responses were made known to the Applicant, allowing the Applicant the ‘last word’ (twice);

(3)  the issues on the Applicant’s performance, competence and attitude during the temporary deployment were duly considered;

(4)  the Applicant’s allegations of his former supervisors’ bias against him and the Independent Panel being not impartial were duly considered;

(5)  all relevant matters were already placed before the SCS; and

(6)  hence, the Retirement Decision was made with all relevant considerations taken into account.

42.Fourthly, I agree that it is not now really open to the Applicant to re-run the arguments which he previously ran and which were not accepted in the Section 12 Retirement process, where there are no public law grounds to impugn the decision.  Indeed, it was rightly common ground that the Court does not look into the merits of the impugned decision with any view possibly to substitute the Court’s view of those merits for that of the decision-maker.  Yet, I do not think it is unfair to conclude that many of the Applicant’s complaints made in these proceedings boil down to a complaint that his stance taken in his representations was ultimately not accepted, where he thinks his arguments were better or stronger than those advanced by the CSB in response.

43.However, in fact, to some extent, both sides have sought to draw my attention to the detail of the arguments on the merits relating to the Retirement Decision.  But it is only relevant to do so to see whether the high hurdle of irrationality has been reasonably arguably met, or whether there has been any other reasonably arguable public law error in the process.

44.It seems to me that it was perfectly open to the SCS to find that grounds for retirement of the Applicant in the public interest under section 12 of PS(A)O due to persistent sub-standard performance had been established on the materials placed before her, and in the light of arguments and the Applicant’s representations presented to her.  Similarly, there is no basis for interfering with the SCS’s decision to accept the findings of the AO, CO and RO on the Applicant’s performance assessment and the recommendation of the Independent Panel, and to reject the representations made by the Applicant.

45.Further, I do not accept that there was any fettering of the Retirement Decision.  When the internal rules of the Government have provided that the HoDs or HoGs are normally the ultimate authority to make determination on complaints, there is no public law error for a decision-maker to consider and place some reliance on the authority of B/Ds on the appraisal reports: see Ho Shun Miu v Director of Broadcasting [2022] HKCFI 2894 at §111.  Further, under the mechanism of Section 12 Retirement, the SCS was entitled to take account of the groundwork and expressions of opinion of the AOs, the relevant B/Ds and her subordinates in CSB, and also the advice of PSC, prior to making her decision.

46.Further still, whilst it may be possible for the Applicant to identify some errors in the voluminous factual material, or the approach taken by the CSB, it is not every error of fact which will taint a decision, or be such as to call seriously into question the integrity of the decision-making process.  Rather, any mistake must have played a material part in the reasoning leading to the impugned decision: see for example He Wei v Director of Immigration [2020] 2 HKC 648 at §§38-39.  From all the materials, I do not think that is applicable in this case.

47.Ground 1 is not reasonably arguable with any realistic prospect of success.

48.The apparent alleged unreasonableness or irrationality of the Retirement Decision is the suggested consideration of factors “behind the Applicant’s back”.  Looking at the arguments advanced by the Applicant as traversed above, it seems to me that Ground 2 is more or less a ‘repackaging’ of Ground 1, with the Applicant’s emphasis again on the allegations including improper or insufficient weight given to certain factors in the exercise of decision-making, bias and unfairness in the CSB’s Note and unreasonable rejection of considering the option of re-posting.

49.On the facts of the present case, I accept that the SCS had considered all relevant factors, including various rounds of representations made by the Applicant, such that the Retirement Decision was made within her discretionary limits and was therefore not irrational.

50.I see no reasonably arguable unreasonableness or irrationality in the Retirement Decision as suggested in Ground 2.

E.   Result

51.The Applicant has failed to identify any reasonably arguable public law grounds of review.  Therefore, the application for leave to apply for judicial review is dismissed.  It is not necessary to have further discussion on the Applicant’s arguments on award of damage and interim relief as set out in his Form 86.

52.As to costs, it is appropriate for the costs to follow the event and for the Applicant to bear the costs of the SCS, to be taxed if not agreed.

53.The SCS shall file a statement of costs for summary assessment, by 11 November 2024.  I shall permit the Applicant to file any list of objections within 14 days.  Thereafter, I shall perform the assessment of costs on the papers.

The applicant, acting in person

Mr Tommy Cheung, instructed by the Department of Justice, and Ms Celina Lam, Government Counsel, of the Department of Justice, for the putative respondent